Recent Prisoner Free Exercise Cases

In Ruffin v. Hinkley, 2017 U.S. Dist. LEXIS 81827 (D ME, May 30, 2017), a Maine federal magistrate judge recommended that a Muslim inmate's complaint that he was served pork on 3 occasions be dismissed but that he be allowed to move ahead with his claim that he was denied various religious material and items while Christian inmates receive religious services.

In Johnson v. Doty, 2017 U.S. Dist. LEXIS 82179 (SD NY, May 19, 2017), a New York federal district court dismissed with leave to file an amended complaint a suit by a Muslim inmate seeking $1 million in damages and injunctive relief growing out of plaintiff effectively being denied the ability to attend Eid-ul-Adha services in 2014. Plaintiff contended that he suffers from mental anguish, trauma and nightmares of going to hell for missing the observance. The court concluded plaintiff had not alleged personal involvement by any of the named defendants.

In Jackson v. Collins, 2017 U.S. Dist. LEXIS 82793 (WD MO, May 31, 2017), a Missouri federal district court in rejecting motions to reconsider prior orders held that neither RLUIPA nor the Establishment Clause were violated by the failure of prison authorities to have "Atheism" listed among the choices of religious preference gathered at intake on an inmate's face sheet. "No Religious Preference," "Unknown," and "Other" are among the choices available.

In Adams v. Williams, 2017 U.S. Dist. LEXIS 81926 (ED AR, May 30, 2017), an Arkansas federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 83026, April 12, 2017) and dismissed without prejudice an inmate' suit that merely alleged that he was forcefully denied his religion as a form of punishment.

In Stevens v. Cain, 2017 U.S. Dist. LEXIS 83889 (MD LA, June 1, 2017), a Louisiana federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 84013, May 23, 2017), and dismissed an inmate's complaint that a TB test was forcibly administered after he refused for religious reasons to have the test performed.

In Vincent v. Stewart, 2017 U.S. Dist. LEXIS 83522 (WD WA, May 31, 2017), a Washington federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 84167, April 17, 2017) and dismissed a suit by a Hare Krishna inmate who sought modification of the Vegetarian Religious Diet to, among other things, add a pint of fresh milk daily which his personal religious beliefs required.

In Carr v. Jackson, 2017 U.S. Dist. LEXIS 84442 (ND GA, June 1, 2017), a Georgia federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 84444, June 1, 2017) and dismissed for failure to exhaust administrative remedies a Muslim inmate's complaint that he never received responses to his requests for Halal or Kosher meals.

6th Circuit: Religious School Not Substantially Burdened By Relocation Denial

In Livingston Christian Schools v. Genoa Charter Township, (6th Cir., June 2, 2017), the U.S. 6th Circuit Court of Appeals dismissed a RLUIPA claim by a Christian school that was denied a special use permit needed for it to relocate.  The school had concluded that remaining in its present location on a long-term basis would end in the dissolution of the school from lack of enrollment and income.  However the Court held as a matter of law that the denial of the permit did not impose a "substantial burden" on the school:

LCS has not alleged that any functions of its religious school were unable to be carried out on the [current] property. LCS focuses on increasing enrollment and raising revenue, but has not identified any religious activity—or even any traditionally secular one—that could not be performed at the [current] property.

The school had also complained that it was burdened because there was no other suitable property in Genoa Township for it to use. But the court disagreed, saying in part:

... [T]he boundaries of jurisdictions on the local-government level are often arbitrary in practice. Holding that a religious institution is substantially burdened any time that it cannot locate within such a small area—even if it could locate just across the border of the town limits—would be tantamount to giving religious institutions a free pass from zoning laws. 

Ban On Supreme Court Plaza Demonstrations Does Not Violate RFRA

In Payden-Travers v. Talkin, (D DC, May 31, 2017), the D.C. federal district court dismissed plaintiffs' claim that the statute and court rule that prohibit demonstrations on the Plaza in front of the Supreme Court violate their rights under the Religious Freedom Restoration Act. They contended that their faith requires them to speak out against war, torture and the death penalty, and that merely demonstrating on the sidewalk adjacent to the Court would not make clear to passers-by that their objections were connected to the Court.  The district court held, however, that the ban does not rise to the level of a "substantial burden" as required by RFRA, saying in part:

Plaintiffs do not allege in their complaint that their religions require them to demonstrate and pray in ways such that the public will associate their activities with the United States Supreme Court. It simply alleges that their religions require them to “speak out” and “distance themselves” from certain practices.... [T]here are still countless other means by which Plaintiffs could satisfy this religious obligation, many of which may have nothing to do with the Supreme Court at all. Section 6135 and Regulation 7 prohibit only one. Accordingly, although section 6135 and Regulation 7 prevent Plaintiffs from engaging in religiously motivated conduct at a particular location, the Court concludes that they do not “substantially burden” Plaintiffs’ religious exercise.

Law.com reports on the decision.

UPS Sued Over Firing of Muslim Employees For Prayer Breaks

In a press release yesterday, CAIR reports:

The Minnesota chapter of the Council on American-Islamic Relations ... today announced the filing of a lawsuit in state court against UPS Mail Innovations and Doherty Staffing Solutions for firing multiple [Somali] Muslim employees who wanted to pray during their break times after previously having allowed them to pray.

The plaintiffs stated that there had been no problem with them using their break time to pray until a new UPS operations manager was hired. He then terminated employees who wanted to pray.

Catholic Order Files For Bankruptcy In Settlement of Sex Abuse Claims

The Minneapolis Star Tribune and Premier report that yesterday the Crosier Fathers and Brothers, a Roman Catholic order, filed for bankruptcy in a Minnesota federal Bankruptcy Court. Along with the filing, the Order agreed to a $25.5 million settlement with 43 plaintiffs who have filed sex abuse lawsuits against the Order.  The sex abuse by 19 members of the Order occurred from the 1960's to the mid-1980's. The settlement is one of the largest per victim payments among the 14 Catholic Church bankruptcies around the country so far.

Justice Department Seeks Supreme Court Review and Stay In Travel Ban Cases [UPDATED]

As reported by the Washington Post, the Justice Department yesterday in two filing with the U.S. Supreme Court sought to overturn lower court decisions invalidating President Trump's second travel ban executive order.  The U.S. filed a petition for certiorari (full text) in Trump v. International Refugee Assistance Project, asking the Supreme Court to grant review of the 4th Circuit's en banc decision (see prior posting) upholding an 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. It also filed a motion (full text) asking the Supreme Court to stay the lower court's injunction while the appeal to the Supreme Court is pending, and asking for expedited consideration of the cert. petition.  Responding to the request for expedited consideration, the Supreme Court on June 2 issued an order calling for respondents to file a response by June 12.

The government also filed an Application for Stay Pending Appeal (full text) in Trump v. State of Hawaii.  The Application asks the Court to stay the preliminary injunction (see prior posting) issued by a Hawaii federal district court while the appeal of that decision is being considered by the 9th Circuit, and to stay it further while any government appeal to the Supreme Court thereafter is pending.The Hawaii decision enjoined enforcement of both Section 2 of the Executive Order (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees).

Hebrew Teacher's ADA Suit Barred By Ministerial Exception Doctrine

Grussgott v. Milwaukee Jewish Day School, Inc., (ED WI, May 30, 2017), a Wisconsin federal district court held that the ministerial exception doctrine requires dismissal of a suit by a teacher in a Jewish Day School who claims she was fired in violation of the Americans With Disabilities Act.  The court concluded that plaintiff, who taught Hebrew to second and third graders, and had taught an integrated Hebrew-Jewish Studies curriculum, qualifies as a "minister" for purposes of the ministerial exception doctrine.  In rejecting her argument that her teaching of Hebrew was cultural, not religious, the court nevertheless commented that "a religious organization could abuse this deference by claiming that certain apparently secular activities are actually religious."

Farmers' Market's Exclusion of Vendor Over Same-Sex Marriages Views Is Challenged

A suit was filed on Wednesday in a Michigan federal district court challenging on 1st and 14th Amendment grounds the City of East Lansing's Vendor Guidelines for its Farmers' Market. The complaint (full text) in Country Mill Farms, LLC v. City of East Lansing, (WD MI, filed 5/31/2017), claims that the city modified its Guidelines to target Country Mill Farms because its owner, Stephen Tennes, shared on Facebook his Catholic belief opposing same-sex marriage.  Tennes posted that while his Farm hosts weddings, it only hosts those that conform to his belief that marriage is a sacramental union between one man and one woman. Following this post, city officials unsuccessfully attempted to pressure Country Mill to end its participation in the Farmer's Market.  When that was unsuccessful, the city changed its Guidelines to require all Farmers' Market participants to abide by the city's Civil Rights Ordinance both while at the market and as a general business practice.  The complaint also alleges that this is an attempt by the city to extend the reach of its ordinances beyond its borders in violation of the Michigan Home Rule City Act.  ADF issued a press release announcing the filing of the lawsuit.

Draft of Proposed Broader Contraceptive Mandate Exemption Becomes Available

As previously reported, the Office of Management and Budget has under review interim final rules that will expand conscience exemptions from the Obamacare contraceptive coverage mandate. A "leaked" 125-page draft of the Release proposing the rules (full text) has now become available.  The rules expand the complete exemption from the contraceptive coverage mandate to any entity that has religious beliefs or moral convictions objecting to some or all contraceptive coverage. This includes churches, any non-profit organization (religious or otherwise), closely-held for-profit companies, and publicly-held for-profit companies.  The rule also assures an exemption for any individual who objects to being covered or paying for some or all contraceptive services because of sincerely held religious beliefs or moral convictions.

As explained by the Release:

These interim final rules expand exemptions for religious beliefs and moral convictions for certain entities or individuals whose health plans may otherwise be subject to a mandate of contraceptive coverage through guidance issued pursuant to the Patient Protection and Affordable Care Act (ACA). These rules do not alter the discretion of the Health Resources and Services Administration (HRSA), a component of the U.S. Department of Health and Human Services (HHS), to maintain the guideline requiring contraceptive coverage where no such objection exists. These rules also leave the accommodation process in place as an optional process for certain exempt entities who wish to use it voluntarily.

Because these would be promulgated as Interim Final Rules rather than as Proposed Rules, they would go into effect immediately, with public comment on whether the Interim Rules should be modified or become permanent in their current form coming after the Interim Rules' effectiveness.  This is permitted under the Administrative Procedure Act for rules that grant an exemption or relieve a restriction. (5 USC Sec. 553(d)). Vox yesterday had more on the proposed rules.

Settlements Reached In New Jersey Mosque Zoning Cases

The Justice Department announced Tuesday that a settlement has been reached with Bernards Township, New Jersey in the the Justice Department's Religious Land Use and Institutionalized Persons Act lawsuit over the town's refusal to grant zoning approval for construction of a mosque by the Islamic Society of Basking Ridge. Under the agreement, the town will permit the mosque to be built.  It will also amend its zoning ordinances.  A $3.25 million settlement was also reached in a suit by the Islamic Society of Basking Ridge similarly charging RLUIPA violations, as well as violations of the 1st and 14th Amendments, in the Bernards Township's refusal to grant site plan approval. The Atlantic reports on the settlements.

Rule Under Review To Modify Contraceptive Coverage Mandate

The Office of Management and Budget reports that an Interim Final rule on Coverage Of Certain Preventive Services Under The Affordable Care Act is pending regulatory review.  The New York Times reports that this rule will relax the controversial requirements relating to contraceptive coverage for employees of religious non-profits.

Muslim Scholars Are Target of Taliban

A New York Times report (May 28) is titled Taliban Target: Scholars of Islam.  It recounts in part:

The scholars have long been targets, of one kind or another, in Afghanistan. Their words carry weight across many parts of society, and they are assiduously courted for their support — and frequently killed for their criticism.

Hundreds are believed to have been killed over the past 16 years of war, and not always by the Taliban. But there has been a definite uptick in the targeted killing of scholars — widely known as ulema — as the Taliban have intensified their offensives in the past two years, officials say.

It is being taken as a clear reminder of the weight the insurgents give not just to military victories but also to religious influence in their campaign to disrupt the government and seize territory.

Congressional Commission Holds Hearings on Countering Religious Violence

On May 24, the U.S. House of Representatives Tom Lantos Human Rights Commission held a hearing on Freedom of Belief: Countering Religious Violence.  A video of the hearing and transcripts of prepared remarks of members and witnesses are available on the Committee's website.

Recent Articles of Interest

From SSRN:

• Samuel Moyn, Thomas Pink, John Finnis & Lorenzo Zucca, Christian Human Rights: A Debate, (King's Law Journal, Vol 28.1 (2017), p.1-50).
• Barry W. Bussey, Rights Inflation: Attempts to Redefine Marriage and the Freedom of Religion: The Case of Trinity Western University School of Law, (Regent University Law Review, Vol. 29, No. 197, 2017).
• Sepehr Shahshahani & Lawrence J. Liu, Religion and Judging on the Federal Courts of Appeals, (May 20, 2017).
• Christopher C. Lund, Religion is Special Enough, (Virginia Law Review, Vol. 103, p. 481, 2017).
• Howard Kislowicz, The Court and Freedom of Religion, ((2017) 78 S.C.L.R. (2d) 221).
• Adam Epstein, Michigan and Sports Law, (Journal of Law, Business & Ethics, Vol. 24, Forthcoming).
• Santiago Legarre & Gregory J. Mitchell, Secondary Effects and Public Morality, (40 Harvard Journal of Law and Public Policy 320 (2017)).
• Courtney G. Joslin, The Gay Rights Canon and the Right to Nonmarriage, (97 Boston University Law Review 425 (2017)).
• Mohamed Badar & Masaki Nagata, Modern Extremist Groups and the Division of the World: A Critique from Islamic Perspective, (Arab Law Quarterly 31 (2017) Forthcoming).
• Mohamed Badar, Masaki Nagata & Tiphanie Tueni, The Radical Application of the Islamist Concept of Takfir, (Arab Law Quarterly 31 (2017) 132-160).

From SmartCILP:

• Heather M. Kolinsky, Situating the Corporation Within the Vulnerability Paradigm: What Impact Does Corporate Personhood Have on Vulnerability, Dependency, and Resilience, [Abstract], 25 American University Journal of Gender, Social Policy & Law 51-86 (2017).
• Patrick B. Grant, Islamic Law, International Law, and Non-International Armed Conflict in Syria, 35 Boston University International Law Journal 1-37 (2017).

No Ramadan Divorces In Palestinian Territories

According to a report today from Al Jazeera, Mahmud Habash, the chief judge of Palestinian Islamic courts in the West Bank and Gaza, has ordered judges to grant no divorces during Ramadan.  Only religious courts have jurisdiction over divorces in the Palestinian Authority.  Habash said that based on experience from previous years, some litigants make "quick and ill-considered decisions" after they have not eaten or smoked.

Recent Prisoner Free Exercise Cases

In Debarr v. Clark, 2017 U.S. Dist. LEXIS 76941 (D NV, May 19, 2017), a Nevada federal magistrate judge recommended that a Pagan inmatebe allowed o move ahead with his complaint that he was denied access to any outdoor area for the practice of his faith and that while in disciplinary segregation he could not participate in any Solstice holiday ceremonies.

In Davis v. Abercrombie, 2017 U.S. Dist. LEXIS 77609 (D HI, May 22, 2017), an Hawaii federal district court gave final approval to the settlement in a class action by Native Hawaiian inmates who complained that they were denied access to religious items and to a spiritual advisor and group religious activities.

In Todd v. California Department of Corrections and Rehabilitation, 2017 U.S. Dist. LEXIS 79852 (ED CA, May 23, 2017), a California federal magistrate judge recommended dismissing on qualified immunity grounds religious exercise complaints by inmates who were members of the "Ecclesia Creatoris" religious organization which promotes the Creativity religion.  It was reasonable for officials to conclude that Creativity is not a "religion" for 1st Amendment purposes.

In Merrick v. Penzone, 2017 Ariz. App. Unpub. LEXIS 625 (AZ App., May 23, 2017), the Arizona Court of appeals affirmed dismissal of a suit by an inmate who is a member of the Fundamental American Christian Temple who was denied unmonitored, unrecorded telephone calls with his brother who was a church elder.

Ramadan Begins Tonight--Trump Issues Greetings

The Muslim holy month of Ramadan begins this evening.  President Donald Trump today released a statement (full text) wishing all Muslims a joyful Ramadan. He said in part:

During this month of fasting from dawn to dusk, many Muslims in America and around the world will find meaning and inspiration in acts of charity and meditation that strengthen our communities.  At its core, the spirit of Ramadan strengthens awareness of our shared obligation to reject violence, to pursue peace, and to give to those in need who are suffering from poverty or conflict.

This year, the holiday begins as the world mourns the innocent victims of barbaric terrorist attacks in the United Kingdom and Egypt, acts of depravity that are directly contrary to the spirit of Ramadan.  Such acts only steel our resolve to defeat the terrorists and their perverted ideology.

Also, reflecting an increase in anti-Muslim activity around the country, the organization Muslim Advocates issued an arson alert to mosques throughout the United Sates.

One Pleads Guilty To Voter Fraud In Attempt To Get Approval For Townhouses For Hasidic Jews

As previously reported, the village of Bloomingburg, New York has been embroiled in a battle over whether an ultra-Orthodox Jewish community would expand into the town.  Real estate developer Kenneth Nakdimen and his associates sought to build a  396-unit townhouse development there to be marketed to Hasidic Jews.  They faced local opposition which the developers said was fueled by anti-Semitism.  As reported by the Wall Street Journal, the developers were ultimately indicted by the federal government for their voting fraud tactics in seeking to obtain approval for their project.  Yesterday the U.S. Attorney's office for the Southern District of New York announced that Nakdimen has pleaded guilty to one count of conspiracy to corrupt the electoral process. The announcement describes the basis for the charges:

[B]y late 2013, the first of their real estate developments had met local opposition, and still remained under construction and uninhabitable.  When met with resistance, rather than seek to advance their real estate development project through legitimate means, NAKDIMEN and others instead decided to corrupt the democratic electoral process in Bloomingburg by falsely registering voters and paying bribes for voters who would help elect public officials favorable to their project.

....   NAKDIMEN and others took steps to cover up their scheme to register voters who did not actually live in Bloomingburg by, among other things, creating and back-dating false leases and placing items like toothbrushes and toothpaste in unoccupied apartments to make it seem as if the falsely registered voters lived there.

UPDATE: On June 6, the U.S. Attorney's office announced that a second defendant, Shalom Lamm, has now also pleaded guilty to conspiracy to corrupt the electoral process.

[Thanks to Steven H. Sholk for the lead.]

Suit Charges Dearborn Pizza Store With Serving Pepperoni As Halal

Detroit Free Press reports on a class action lawsuit filed yesterday in a Michigan state trial court against Little Caesars claiming that the chain's pizza store in Dearborn placed pizza topped with pork-based pepperoni in boxes marked Halal.  The suit which seeks $100 million in damages says that plaintiff Mohamad Bazzi has encountered the problem twice, once in March and once this week. Plaintiff claims breach of contract, negligent misrepresentation, unjust enrichment and fraud.  Bazzi's attorney says the suit was filed rapidly ahead of Ramadan which begins this evening so that other Muslims would not accidentally eat pork from the pizza outlet during the holy days.

3rd Circuit Clarifies Burden of Proof For Preliminary Injunction In 1st Amendment Cases

In Reilly v. City of Harrisburg, (3rd Cir., May 25, 2017), a suit challenging a city's ban on demonstrations within 20 feet of any abortion clinic property, the 3rd Circuit clarified the burden of proof requirement for a preliminary injunction in 1st Amendment cases:

...[A] movant for preliminary equitable relief must meet the threshold for the first two “most critical” factors: it must demonstrate that it can win on the merits (which requires a showing significantly better than negligible but not necessarily more likely than not) and that it is more likely than not to suffer irreparable harm in the absence of preliminary relief. If these gateway factors are met, a court then considers the remaining two factors and determines in its sound discretion if all four factors, taken together, balance in favor of granting the requested preliminary relief.... “How strong a claim on the merits is enough depends on the balance of the harms: the more net harm an injunction can prevent, the weaker the plaintiff’s claim on the merits can be while still supporting some preliminary relief.” ...

In deciding whether to issue a preliminary injunction, plaintiffs normally bear the burden of demonstrating a sufficient likelihood of prevailing on the merits. However, in First Amendment cases where “the Government bears the burden of proof on the ultimate question of [a statute’s] constitutionality, [plaintiffs] must be deemed likely to prevail [for the purpose of considering a preliminary injunction] unless the Government has shown that [plaintiffs’] proposed less restrictive alternatives are less effective than [the statute].”.... This is because “the burdens at the preliminary injunction stage track the burdens at trial,” and for First Amendment purposes they rest with the Government.