Partisan Political Divide Impacts Religious Denominations

Two major newspapers today explore ways in which the severe political divide in the United States has impacted religious denominations.  The Wall Street Journal features an article: Russell Moore, Baptist Leader Who Shunned Trump, Splits the Faithful.  The New York Times reports: Religious Liberals Sat Out of Politics for 40 Years. Now They Want in the Game.

New USCIRF Report On Minority Religions In Kurdistan

Last week the U.S. Commission on International Religious Freedom released a 77-page report: Kurdistan Region of Iraq: New USCIRF Report on Religious Minorities in the KRI.  Here an excerpt from the Report's Executive Summary:

In recent years the Kurdistan Region of Iraq (KRI) has been a haven for minorities fleeing the turmoil and sectarian violence in the south of Iraq. The KRI offers religious freedoms that are comparatively robust as compared to those of its regional neighbors. Even so, troubling issues related to discrimination and even violence targeting ethnic and religious minorities exist, exacerbated by the KRI’s strained resources and security situation. Such issues must not be disregarded just because of the security situation in Iraq, or because of the KRI’s successes as compared with the wider region.

Missouri Governor Calls Special Legislative Session To Enact Pro-Life Bills

Missouri Governor Eric Greitens on Wednesday issued a Proclamation (full text) calling a Special Session of the state legislature for June 12 in order to enact legislation to respond to two pro-abortion developments.  One was the enactment by the City of St. Louis of of an Ordinance barring discrimination in employment and housing because of reproductive health decisions or pregnancy status. (See prior posting.)  The Governor's Proclamation states that the St. Louis Ordinance "undermines pregnancy care centers that provide critical resources for women seeking counseling and support for alternatives to abortion," and calls on the legislature to preempt legislation like that enacted by St. Louis.

The second development triggering the call for a Special Session of the legislature is the federal district court's decision last month in Comprehensive Health of Panned Parenthood Great Plains v. Williams, (WD MO, April 19, 2017) which preliminarily enjoined state law requirements that doctors who perform abortions have hospital admitting privileges, and that abortion clinics meet requirements for ambulatory surgical centers. The Governor's Proclamation contends that the effect of the ruling is to eliminate meaningful licensure of abortion clinics and the Proclamation calls for enactment of a number of new provisions on licensure of abortion clinics.

The Governor issued a press release and a Facebook video explaining his action in more detail, saying in part: "I'm pro-life, and I believe that we need to defend life and promote a culture of life here in the state of Missouri."

Anti-LGBT Activist Appeals ATS Lawsuit That He Won

As previously reported, earlier this week a Massachusetts federal district court dismissed an Alien Tort Statute lawsuit against activist Scott Lively who was sued over his conduct in Uganda helping anti-LGBT activists there.  The court held that there had been insufficient conduct in the United States to support a suit under the ATS.  However the court's opinion harshly criticized Lively's actions, calling them crimes against humanity. Now, in an unusual move, Lively has filed an appeal even though the suit against him was dismissed.  The Notice of Appeal (full text) in Sexual Minorities Uganda v. Lively, (D MA, filed 6/8/2017), says appellant seeks removal from the court's order of "certain extraneous but prejudicial language immaterial to the disposition of the case and which the district court had no jurisdiction to entertain or enter." It also seeks to have supplemental state law claims which the district court dismissed without prejudice to instead be dismissed with prejudice so they cannot be refiled in state court. Liberty Counsel, representing Lively, issued a press release announcing the appeal and describing their objections to the district court's Order:

Judge Ponsor improperly littered his Order with a prolonged tirade against Lively, badly distorting his Christian views and activism, and insulting him with such unbecoming epithets as “crackpot bigot[],” “pathetic,” “ludicrous,” “abhorrent” and numerous others.

Two FGM Defendants Released On Bond

The Detroit Free Press reported yesterday that a federal district court judge has released on bond to house arrest a doctor and his wife who are facing conspiracy charges in the first prosecutions under the federal female genital mutilation statute. (See prior posting.) The paper reports in part:

Dr. Fakhruddin Attar, 53, of Farmington Hills, is accused of letting another doctor use his clinic to perform genital cutting procedures on two 7-year-old Minnesota girls; his wife, Farida Attar, 50, is accused of holding the girls' hands during the procedure to keep them from squirming and to calm them.

Defense lawyers have claimed the Attars did not engage in any criminal  act, and that the procedure at issue is a protected religious rite-of-passage that involved no cutting....

Assistant U.S. Attorney Sara Woodward dropped a bombshell in court today in telling Friedman that the government believes the defendants have subjected as many as 100 victims to the procedure.

The primary defendant,  Dr. Jumana Nagarwala who is accused of performing the procedures remains in jail pending trial.

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.