City Settles With Muslim Group Over Zoning Denial

Journal Online reported this week that just days after settling with the Department of Justice (see prior posting), the city of  Des Plaines, Illinois entered a settlement agreement with the Society of American Bosnians and Herzegovinians.  The organization sued after it was denied a zoning change that would have allowed it to operate a mosque on property it wished to purchase.  Under the settlement, the city will pay the organization damages of $580,379.

Prayer Over Football Game Loudspeaker May Be Banned

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, (MD FL, June 7, 2016), a Florida federal district court, agreeing with a magistrate's recommendation (see prior posting), dismissed a suit brought by a Christian high school complaining that it was denied permission to use the stadium loudspeaker system to deliver a prayer at the Championship Game in which its football team was playing. The action was taken by the governing organization for athletics in Florida’s public schools-- a body which private schools must join if they wish to play against public schools.  The court said in part:

... [T]he entirety of the speech over the Stadium loudspeaker was government speech and ..., even if it were not, the Stadium loudspeaker is a non-public forum. Therefore, the FHSAA was permitted to deny Cambridge Christian’s request to use it to broadcast prayer during a school sporting event organized and governed by a state entity....

Here, ... there was no ban on communal prayer. Instead, the FHSAA simply declined to sponsor Cambridge Christian’s prayer, which is not a violation of the Free Exercise Clause....

The allegations of the Verified Amended Complaint ... allege only that Cambridge Christian was denied its traditional method of advancing the school’s mission during sporting events, and that the mission is a religious one. The mission itself, however, is not a religious belief, nor is broadcasting a prayer over a loudspeaker.... [E]ven if denial of access to the loudspeaker did burden a religious belief of Cambridge Christian, such a burden did not amount to a substantial one, but simply inconvenienced the belief, because Cambridge Christian was not denied alternate means of engaging in communal prayer. Accordingly, Cambridge Christian has failed to state a claim under Florida’s Religious Freedom Restoration Act. 

Pence Speaks To National Catholic Prayer Breakfast

Yesterday Vice President Mike Pence delivered a lengthy address (full text) to the National Catholic Prayer Breakfast in Washington, D.C.  Here are a few excerpts from his remarks:

To all the great American Catholics gathered here, let me assure you this morning, bright and early at this prayer breakfast, American Catholics have an ally in President Donald Trump.  (Applause.) 

President Trump stands for the religious liberty of every American and the right of our people of faith to live out your convictions in the public square.

President Trump stands with those who are persecuted for their faith around the world -- no matter the country they call home or the creed they profess.

And President Donald Trump stands with the most vulnerable -- the aged, the infirm, and the unborn.  (Applause.) ....

Protecting and promoting religious freedom is a foreign-policy priority of this administration.  And we will continue to work with this Congress to stand without apology for persecuted people of faith across the globe.  We will continue to stand with our allies and take the fight to the terrorists on our terms, on their soil until we drive the cancer of terrorism from the face of the Earth.  (Applause.)....

Since day one of this administration, President Donald Trump has been keeping his promise to stand for life, and life is winning in America again.

Court Enjoins Montana Rule Excluding Religious Schools From Tax Credit Program

In Espinoza v. Montana Department of Revenue, (MT Dist. Ct., May 26, 2017), a Montana state trial court enjoined the enforcement of a rule that bars religiously affiliated schools from participating in the state's program providing tax credits to Student Scholarship Organizations.  The Department of Revenue took the position that allowing religious schools to participate would violate state constitutional provisions barring appropriations or payments of public funds to aid sectarian schools.  the court held that the Department had incorrectly interpreted the constitutional provisions:

Non-refundable tax credits simply do not involve the expenditure of money that the state has in its treasury; they concern money that is not in the treasury and not subject to expenditure.  Since the plain language of Article V, Section 11(5) and Article X, Section 6(1) of the Montana Constitution prohibit appropriations, not tax credits, the Department's Rule 1 is based on an incorrect interpretation of law.  The court concludes that the term "appropriation" used in Article V, Section 11(5) and Article X, Section 6(1) does not encompass tax credits.

According to Daily Inter Lake, the state plans to appeal to the Montana Supreme Court. (See prior related posting.)

Illinois City Settles DOJ's Suit Over Mosque Rezoning

The Justice Department yesterday announced a Settlement Agreement (full text) with the City of Des Plaines, Illinois, settling a RLUIPA lawsuit brought against the city.  The suit alleged that the city improperly denied a zoning request that would have allowed a Bosnian Muslim religious organization to use property it wished to purchase for religious and educational purposes.  A federal district court ruled against the city in in February in refusing to grant it summary judgment. (See prior posting.) Under the settlement agreement, the city will comply with RLUIPA in the future and will provide training on RLUIPA to its officials and employees. Meanwhile, the Muslim group has acquired an alternative location for its mosque.

New York Appeals Court Dismisses Suit Opposing Kaporos Ritual

In a 3-2 decision, a New York state appellate court has dismissed a mandamus action seeking to require the New York Police Department and the New York City Health Department to enforce various Health Code, animal cruelty and other laws to stop the Orthodox Jewish ritual of kaporos.  The pre-Yom Kippur ritual involves using live chickens (which are later slaughtered) in an atonement ceremony.  In Alliance to End Chickens as Kaporos v New York City Police Department, (App. Div. June 6, 2017), the majority held that mandamus is available only to enforce a non-discretionary duty on the part of government officials.  Here the laws that plaintiffs seek to require defendants to enforce involve judgment and discretion of law enforcement officials.  Justice Gesmer (joined by Presiding Justice Andrias) dissented.

No Jurisdiction Under ATS Over Anti-Gay Pastor's Activity In Uganda

In Sexual Minorities Uganda v. Lively, (D MA, June 5, 2017), a Massachusetts federal district court dismissed a suit that had been brought under the Alien Tort Statute against Scott Lively, a pastor and anti-LGBT activist. The court said in part:

Defendant's positions on LGBTI people range from the ludicrous to the abhorrent....  He has tried to make gay people scapegoats for practically all of humanity's ills.... 

This crackpot bigotry could be brushed aside as pathetic, except for the terrible harm it can cause. The record in this case demonstrates that Defendant has worked with elements in Uganda who share some of his views to try to repress freedom of expression by LGBTI people in Uganda, deprive them of the protection of the law, and render their very existence illegal.... 

Plaintiff has filed this lawsuit under the Alien Tort Statute ("ATS"), 28 U.S.C. § 1350, seeking monetary damages and injunctive relief based on Defendant's crimes against humanity. Defendant now seeks summary judgment in his favor arguing that, on the facts of record, the ATS provides no jurisdiction over a claim for injuries -- however grievous -- occurring entirely in a foreign country such as Uganda. Because the court has concluded that Defendant's .jurisdictional argument is correct, the motion will be allowed.

Anyone reading this memorandum should make no mistake. The question before the court is not whether Defendant's actions in aiding and abetting efforts to demonize, intimidate, and injure LGBTI people in Uganda constitute violations of international law. They do. The much narrower and more technical question posed by Defendant's motion is whether the limited actions taken by Defendant on American soil in pursuit of his odious campaign are sufficient to give this court jurisdiction over Plaintiff's claims. Since they are not sufficient, summary judgment is appropriate for this, and only this, reason. 

Liberty Counsel which represented Lively issued a press release on the decision describing Lively's activities as "sharing his biblical views on homosexuality during three visits to Uganda...."

Supreme Court Denies Cert. In RFRA Challenge To Court Martial

The U.S. Supreme Court yesterday denied review in Sterling v. United States,(Docket No. 16-814, cert. denied 6/5/2017) (Order List).  In the case, the U.S. Court of Appeals for the Armed Forces held that a Marine Lance Corporal failed to establish a prima facie case under RFRA of a substantial burden to sincerely held religious beliefs in defending against charges growing out of her work space posting of unauthorized signs containing Biblical quotations. (See prior posting.)  Fox News reports on the Supreme Court's action.

Supreme Court: Pension Plans of Religiously Affiliated Hospitals Are ERISA "Church Plans"

Giving a major win to religiously affiliated health care systems, the U.S. Supreme Court today in Advocate Health Care Network v. Stapleton, (Sup. Ct., June 5, 2017), held that their retirement plans qualify as exempt "church plans" under ERISA.  Interpreting ambiguous language in the statute, Justice Kagan writing for a unanimous court (Gorsuch, J. not participating) said:

ERISA provides (1) that a “church plan” means a “plan established and maintained . . . by a church” and (2) that a “plan established and maintained . . . by a church” is to “include[] a plan maintained by” a principal-purpose organization. Under the best reading of the statute, a plan maintained by a principal-purpose organization therefore qualifies as a “church plan,” regardless of who established it. We accordingly reverse the judgments of the Courts of Appeals.

Justice Sotomayor filed an opinion saying that she joins the Court's opinion, but has questions whether if Congress were reconsidering the issue today it would grant the church-plan exemption to some of the largest health-care providers in the country, which is the result of the Court's decision.

7th Circuit Upholds Transgender Student's Bathroom Rights

In Whitaker v. Kenosha Unified School District, (7th Cir., May 30, 2017), the U.S. 7th Circuit court of Appeals affirmed a district court's grant of a preliminary injunction requiring a Wisconsin high school to permit 17-year old Ash Whitaker, a transgender male, to use the boys' rest rooms.  Summarizing its holding, the court said in part:

Ash has sufficiently demonstrated a likelihood of success on his Title IX claim under a sex‐stereotyping theory. Further, because the policy’s classification is based upon sex, he has also demonstrated that heightened scrutiny, and not rational basis, should apply to his Equal Protection Claim. The School District has not provided a genuine and exceedingly persuasive justification for the classification.

Rejecting the school's privacy arguments, the court said in part:

What the record demonstrates here is that the School District’s privacy argument is based upon sheer conjecture and abstraction.... A transgender student’s presence in the restroom provides no more of a risk to other students’ privacy rights than the presence of an overly curious student of the same biological sex who decides to sneak glances at his or her classmates.

The Hill reports on the decision.

Recent Articles of Interest

From SSRN:

• Teneille R. Brown, Medical Futility and Religious Free Exercise, (First Amendment Law Review, Vol. 15, No. 43, 2017).
• Robert W. McGee, Are Muslims More Likely to Beat Their Wives Than Members of Other Religions? An Empirical Study of 60 Countries, (May 30, 2017).
• Kim Treiger-Bar-Am, Copyright and Positive Freedom: Kantian and Jewish Thought on Authorial Rights and Duties, (63(4) Journal of the Copyright Society U.S.A. 551 (Fall, 2016)).
• Robert C. Blitt, Equality and Nondiscrimination through the Eyes of an International Religious Organization: The Organization of Islamic Cooperation's (OIC) Response to Women's Rights, (Wisconsin International Law Journal, Vol. 34, No. 4, 2017).
• Stephen Gillers, A Rule to Forbid Bias and Harassment in Law Practice: A Guide for State Courts Considering Model Rule 8.4(g), (Georgetown Journal of Legal Ethics, Vol. 30, No. 195, 2017).
• Vivencio Ballano, Enforcing the Canon Law: Normative Pluralism and Clerical Abuse in the Catholic Church, (May 6, 2017).
• Ari Herbert, Can We Still Talk Things Out?: A Case Study of Campus Hate Speech Regulations at the University of Texas, (Connecticut Public Interest Law Journal, Forthcoming).
• Kaiponanea T. Matsumura, Choosing Marriage, (UC Davis Law Review, Vol. 50, No. 5, 2017).

From SmartCILP:

• Stephanie Pisko, (Un?)lawful Religious Discrimination [link is pdf download], 9 Drexel Law Review 101-128 (2016).
• Arthur H. Garrison, Defining the Meaning and Purpose of Justice, Law, and Criminal Justice: A Hermeneutical Judeo-Christian Biblical Perspective, 55 Journal of Catholic Legal Studies 1-82 (2016).

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.