3d Circuit: Dismissal of Prisoner's RLUIPA Suit At Pleading Stage Was Improper

In Robinson v. Houtzdale, (3d Cir., June 19, 2017), the U.S. 3rd Circuit Court of Appeals held that the trial court should not have dismissed at the pleading stage a RLUIPA suit by a Christian inmate who objected that the prison's Sex Offenders Therapeutic Community program burdens his religious exercise by requiring him to "confess" to a therapist or counselor.  Plaintiff contended that the Bible does not permit him to confess sins to anyone except God. The court said that the threshold question under RLUIPA is whether a prison practice has substantially burdened an inmate's practice of his religion.  It went on:

we conclude that the Magistrate Judge went too far by analyzing the “truth” of Robinson's beliefs when she determined, based on the pleadings alone, that the sexual offender program did not impose a substantial burden because it did not ask Robinson “to confess in any religious sense.” ... [A]t the pleading stage, we are required under RLUIPA to accept as true Robinson’s sincerely held belief that any acknowledgement of guilt is a religious “confession"....

... [W]hile the District Court may well conclude after considering evidence or testimony on the subject that SCI-Houtzdale’s interest in its sex offenders taking responsibility for their actions as part of its therapeutic program is a “compelling interest” and that there is no less restrictive means for Robinson to meet the goals of the sex offender program, it cannot do so on the basis of the pleadings alone. That is because RLUIPA does not permit “unquestioning deference” to prison administrators....

Turkey Removes Evolution From High School Curriculum

The New York Times reported yesterday that in Turkey the Education Ministry has decided to eliminate the teaching of evolution to ninth graders, removing the chapter on the topic from ninth grade text books because it is controversial.  A government spokesman said:

Our students don’t have the necessary scientific background and information-based context needed to comprehend [the debate about evolution].

Critics see this as the latest step by President Erdogan's government to move away from the secular character of the state and give more recognition to concerns of religious Muslims.

In Mosque's Factional Dispute, Ohio Court Orders Dissolution and Reincorporation

In State of Ohio ex. rel. DeWine v. Omar Ibn El Khattab Mosque, Inc., (OH App., June 22, 2017), an Ohio appeals court exercising its original jurisdiction in quo warranto actions granted the state attorney general a writ allowing him to pursue the dissolution of the non-profit corporation which operates a Columbus, Ohio mosque. The court further granted the attorney general authority to oversee the creation of a successor entity to take over the mosque.  Two factions had both claimed to represent the mosque, and were involved in five years of litigation over which of the successive boards is the legitimate governing body of the mosque. The court agreed with a magistrate who initially heard the case, saying:

Omar Mosque, Inc. has violated many statutory requirements of [the Ohio Non-Profit Corporation Law] ... in failing to maintain a record of its members from the period of 2007 through 2011... [and] the failure to conduct an annual or special meeting of voting members for the election of directors in either 2009 or 2010.

These basic statutory requirements that Omar Mosque, Inc. violated would protect a corporation from the confusion and internal paralysis that this case has shown resulted when an internal division arose. Without a defined voting membership, regular meetings, and up-to-date membership roster, the authority of the board, and thus the legitimacy of the corporation itself, is no longer supported through recordable action.

The court added:

In light of the stable management provided by the Reash/Brey respondents, and the Khan/Ball board's willingness to efface itself from the day-to-day operation of the mosque, the oversight of the trustees or a receiver in this case may be limited to resolution of the current corporate dysfunction and need not intrude into the religious affairs of the mosque.

Court Temporarily Halts Deportation of 100 Iraqi Chaldeans and Minority Muslims

A Michigan federal district court yesterday issued a 14-day stay of the immediate deportation of over 100 Iraqi nationals who were arrested in immigration raids earlier this month.  Many of those arrested were Chaldeans. (See prior posting.)  In Hamama v. Adducci, (ED MI, June 22, 2017), the court described the claims raised:

Petitioners state that because of their having resided in the United States and their status as religious minorities – many are Christian, others are members of oppressed Muslim sects – they are likely to be persecuted, tortured, or killed by members of the Islamic State in Iraq and Syria, the de facto government in many parts of Iraq. 

The government argues that the district court lacks jurisdiction because of the provisions in 8 USC 1252(g).  The court concluded however:

In light of these complex jurisdictional issues, and the speed with which the Government is moving to remove Petitioners, it is necessary to stay Petitioners’ removal pending the Court’s determination regarding its jurisdiction. 

The ACLU issued a press release announcing the court's decision.

UPDATE: In a June 26 opinion, the court expanded its order to cove all Iraqi nationals in the United States subject to final orders of removal, and extended the temporary order to July 10.

10th Circuit: Qualified Immunity Protects Officer Who Told Suspect To Stop Praying

In Sause v. Bauer, (10th Cir., June 20, 2017), the U.S. 10th Circuit Court of Appeals dismissed on qualified immunity grounds a suit for damages alleging that police who were investigating a noise complaint violated plaintiff's 1st Amendment rights when an officer who had come to her home ordered her to get up and stop praying. The court said:

It certainly wouldn’t be obvious to a reasonable officer that, in the midst of a legitimate investigation, the First Amendment would prohibit him or her from ordering the subject of that investigation to stand up and direct his or her attention to the officer—even if the subject of the investigation is involved in religiously-motivated conduct at the time, and even if what the officers say or do immediately after issuing that command does nothing to further their investigation.

The court also held that plaintiff lacks standing to sue for injunctive relief. Liberty Counsel issued a press release reacting to the decision.

5th Circuit: Plaintiffs Lack Standing to Challenge Mississippi's Anti-LGBT Conscience Law

In Barber v. Bryant, (5th Cir., June 22, 2017), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics.  The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth.  The district court had concluded that the statute violates the Establishment Clause and Equal Protection Clause. (See prior posting.) However the 5th Circuit concluded that plaintiffs had alleged nothing more than "a general stigmatic injury," and this is insufficient for standing. MS News Now reports on reactions to the decision.

Female Genital Mutilation Case Expands

On June 21, federal authorities filed a Superseding Indictment (full text) adding two defendants in United States v. Nagarwala, (ED MI, 6/21/2017)-- the female genital mutilation case involving members of the Dawoodi Bohra Indian-Muslim community in the Detroit, Michigan area. (See prior posting).  According to the Detroit Free Press, the new defendants are Farida Arif and Fatema Dahodwala, two mothers who brought their daughters for the procedure to be performed.  This brings the total number of defendants to six. Prosecutors say there may have been up to 100 girls who were victims. The Free Press reports:

Lawyers involved in the case have said girls did not undergo female genital mutilation. They underwent a benign religious procedure, the lawyers have said.

“I am frankly appalled that the government would put these women through this,” said Dahodwala’s lawyer Margaret Sind Raben, who also has advised Arif’s family.

“Any mother who provided her child to Dr. Nagarwala or anyone else, for the purposes of this religious procedure, did so in absolute firm faith that this was required by their religion and that no permanent harm would come to their child,” Sind Raben said.

The new indictment charges various defendants with conspiracy to commit female genital mutilation, female genital mutilation, conspiracy to transport a minor with intent to engage in criminal sexual activity, conspiracy to obstruct an official proceeding, and making false statements to a federal officer.

UPDATE: Detroit Free Press June 24 reports on the controversy within the  Dawoodi Bohra sect between those who favor and those who oppose the practice of female genital cutting.

Israeli Court Says El Al May Not Ask Women To Change Seats To Accommodate Religious Concerns of Male Passengers

According to the New York Times, an Israeli court in Jerusalem yesterday ruled that El Al Airline's policy of asking women passengers to move seats in order to accommodate religious beliefs on modesty of ultra-Orthodox Jewish men violates Israel's anti-discrimination laws.  Requests for seating changes by male passengers who are concerned about inadvertent physical contact have delayed flights in recent years.  According to the Times:

In discussions outside the courtroom, the two sides in the case agreed on a judgment proposed by the judge, declaring that it is forbidden for a crew member to ask a passenger to change seats at the request of another passenger based on gender. El Al agreed to tell its cabin staff in writing about the prohibition within 45 days, and to provide training in how to deal with such situations within six months.

The court also awarded plaintiff, 83-year old Renee Rabinowitz, damages equivalent to $1800(US). [Thanks to Steven H. Sholk for the lead.]

New York Governor Signs Legislation To End Child Marriage

On June 20, New York Governor Andrew Cuomo signed A05524 raising the minimum age at which a person may marry to 17. (Full text and vote history).  Under the bill, parental consent and court approval is required to issue a marriage license to a person between 17 and 18 years of age. Prior to enactment of this legislation, with court approval an individual as young as 14 years could marry. In a press release on signing the bill, Governor Cuomo said: "This is a major step forward in our efforts to protect children and prevent forced marriages, and I am proud to sign this legislation that puts an end to child marriage in New York once and for all." PIX 11 reports on the new legislation.

Suit Fights Deportation Using RFRA

KHOU News reports on a lawsuit filed Monday in a Texas federal district court which argues that deporting an El Salvadoran who has been in the United States illegally for over a decade would violate the Religious Freedom Restoration Act. Juan Rodriguez's wife and three daughters are all U.S. citizens.  The lawsuit alleges that Rodriguez's Seventh-Day Adventist beliefs requiring the family to stay together would be violated by his deportation.

DOE Issues New Instructions On Transgender Students' Rights Under Title IX

As previously reported, in February the Trump Administration withdrew controversial Obama Administration's Guidance documents on rights of transgender students under Title IX.  The withdrawn documents called for transgender students to have access to sex-segregated bathrooms and locker rooms consistent with their gender identity.  On June 6 the Department of Education's Office of Civil Rights issued a memo (full text) setting out new "Instructions to the Field re Complaints Involving Transgender Students."  The new Memo emphasizes that withdrawal of the Obama Administration guidance documents "does not leave students without protections from discrimination, bullying or harassment."

The Memo provides that DOE may open an investigation in various situations, including cases in which gender-based harassment has created a hostile environment for a transgender student.  The Memo then sets out examples:

acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping, such as refusing to use a transgender student’s preferred name or pronouns when the school uses preferred names for gender-conforming students or when the refusal is motivated by animus toward people who do not conform to sex stereotypes of a transgender student created a hostile environment....

Liberty Counsel, a conservative Christian advocacy organization, this week issued a press release criticizing DOE's new Memo, saying in part:

“Title IX does not require a school district or teacher to call students by false gender pronouns,” said Mat Staver, Founder and Chairman of Liberty Counsel. “Title IX is silent regarding the use of pronouns, and it cannot be a violation to refer to students by pronouns consistent with their actual sex. Requiring false pronoun usage by teachers is a compelled speech violation for teachers and compelling students to participate in a lie violates their right to free speech. I thought we had seen the last of this nonsense coming out of the Department of Education. I call upon Betsy DeVoss to end this new policy,” said Staver.

Student Has Standing Under Establishment Clause To Challenge School's Christian Fundraising

In American Humanist Association, Inc. v. Douglas County School District RE-1, (10th Cir, June 20, 2017), the U.S. 10th Circuit Court of Appeals held that one of the plaintiffs challenging a Colorado public school's Christian fundraising efforts has standing to bring an Establishment Clause challenge seeking retrospective relief. However the 10th Circuit agreed with the district court (see prior posting) that the other plaintiffs do not have standing. The appeals court said in part:

Although we have no doubt that plaintiffs are genuinely and fervently committed to righting what they view as an injustice, “a generalized grievance, no matter how sincere, is insufficient to confer standing.”.... Most of the plaintiffs have failed to demonstrate that they or their children experienced “personal and unwelcome contact with government-sponsored religious” activities.....  Further, they have not made out a case for municipal taxpayer standing because they have not shown an expenditure of municipal funds on the challenged activities.

The sole exception is plaintiff Jane Zoe. She contends that DCSD violated the Establishment Clause when school officials announced they were “partnering” with a Christian student group and solicited her and her son for donations to a “mission trip.” The district court held that because Zoe’s contacts with the challenged actions were not conspicuous or constant, she did not suffer an injury for standing purposes.  We find no support in our jurisprudence for the proposition that an injury must meet some threshold of pervasiveness to satisfy Article III.

American Humanist Association issued a press release announcing the decision.

Suit Challenges Anti-Semitism At San Francisco State University

In a press release yesterday, the Lawfare Project announced the filing of a lawsuit in a California federal district court on behalf of a group of San Francisco State University students and members of the local Jewish community seeking to end rising administration-sanctioned anti-Semitic activity on campus.  The complaint (full text) in Mandel v. Board of Trustees of the California State University, (ND CA, filed 6/19/2017), alleges that since the founding of the College of Ethnic Studies  in 1968 at SFSU, "a consistent pattern of anti-Jewish animus has emerged," culminating in threats, intimidation and disruption of the speech by Jerusalem Mayor Nir Barkat in 2016. The suit claims this conduct has violated plaintiffs' free speech and equal protection rights as well as their rights under Title VI of the 1964 Civil Rights Act.

9th Circuit Refuses To Enjoin California's Notice Requirements For Crisis Pregnancy Centers

In Mountain Right To Life, Inc. v. Becerra, (9th Cir., June 19, 2017), in a brief opinion, the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's refusal to issue a preliminary injunction against enforcement of California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. (See prior posting).  The Act requires licensed crisis pregnancy centers to notify clients of programs offering free or low-cost abortions and requires unlicensed centers to notify clients that they are not state-licensed.  The court said:

The district court properly concluded that Plaintiffs cannot demonstrate a likelihood of success on the merits of their First Amendment free speech or free exercise claims.... The Act regulates licensed covered facilities’ professional speech, and is therefore subject to intermediate scrutiny, which it survives.... The notice requirement for unlicensed covered facilities survives any level of review.... And as to the free exercise claim, the Act is a neutral law of general applicability that survives rational basis review.

Latin Cross In City Park Violates Establishment Clause

In Kondrat'yev v. City of Pensacola, Florida, (ND FL, June 19, 2017), a clearly reluctant Florida federal district court judge held that a 34-foot concrete Latin Cross that has stood in the city's Bayview Park for decades violates the Establishment Clause.  The cross is the site for an annual Easter sunrise service as well as remembrance services on Veterans Day and Memorial Day.  The court laments:

... the historical record indicates that the Founding Fathers did not intend for the Establishment Clause to ban crosses and religious symbols from public property. Indeed, “the enlightened patriots who framed our constitution” ... would have most likely found this lawsuit absurd. And if I were deciding this case on a blank slate, I would agree and grant the plaintiffs no relief. But, alas, that is not what we have here.

The court concluded that  ACLU of Georgia v. Rabun County Chamber of Commerce, a 1983 case from the 11th Circuit Court of Appeals involving "this exact issue on virtually identical facts" required it to conclude that the Bayview Cross violates the Establishment clause under the Lemon test. The court concluded:

To be clear: None of this is to say that the cross would have to come down if the City sold or leased the area surrounding it to a private party or non-governmental entity (so long as the transfer was bona fide and not a subterfuge). Nor would there be a constitutional problem with worshipers using a temporary cross for their services in the park.... However, after about 75 years, the Bayview Cross can no longer stand as a permanent fixture on city-owned property.

The American Humanist Association issued a press release on the decision, with links to various pleadings in the case.

Supreme Court Invalidates Lanham Act Bar To Registration of Disparaging Trademarks

In Matal v. Tam, (Sup. Ct., June 19, 2017), the U.S. Supreme Court today held unconstitutional under the 1st Amendment's free speech protection the provision in the Lanham Trademark Act that prohibits registration of any trademark that

consists of ... immoral, deceptive, or scandalous matter; or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute. (15 U. S. C. §1052(a)). 

The case generated three separate opinions, all ultimately concluding that the refusal to register "The Slants" as the name of an Asian-American rock group amounts to viewpoint discrimination. Five of the justices (Kennedy, Ginsburg, Sotomayor and Kagan, plus Thomas in a separate opinion) held that viewpoint discrimination always triggers heightened scrutiny.  Three others (Alito, Roberts and Breyer) said they need not reach the issue because the restriction does not pass even the lower hurdle for commercial speech. Justice Gorsuch did not participate.  New York Times reports on the decision.

The result of today's decision is that trademarks that disparage religious groups will also be able to be registered.  The rock group had argued that the Lanham Act language only applies to individuals, but in rejecting that, the Court (in a portion of the opinion joined by 7 justices) said:

[The statute] applies to the members of any group whose members share particular “beliefs,” such as political, ideological, and religious groups. It applies to marks that denigrate “institutions,” and on Tam’s reading, it also reaches “juristic” persons such as corporations, unions, and other unincorporated associations. See §1127. Thus, the clause is not limited to marks that disparage a particular natural person. 

Pakistan Court Upholds Reduction In Private Operators' Hajj Quotas

Again this year in Pakistan, Hajj quotas have become the subject of litigation.  In Hajj Organizers Association of Pakistan v. Federation of Pakistan, (High Ct. Sindh, June 16, 2017), the High Court of Sindh at Karachi rejected a challenge to the reduction in the quota of Private Hajj Sector organizers from 50% to 40% of Pakistan‟s allocated quota.  The change was made so that an increased number of government sponsored lower-cost Hajj trips could be provided. The court said in part:

The plaintiffs have no justification to snatch lawful right of common people to perform Hajj at economical Hajj package as compared to expensive Hajj packages introduced and announced by the plaintiffs.

Express Tribune reports on the court's decision.

Utah Imam On No-Fly List Allowed To Return After Suit Filed

A lawsuit was filed on Friday in federal district court in Utah seeking an emergency Temporary Restraining Order or Preliminary Injunction to require authorities to allow Yussuf Awadir Abdi, imam of a Salt Lake City mosque, to return to the United States from Kenya.  According to the motion and brief in support (full text) in Abdi v. McCabe, (D UT, filed 6/16/2017), Abdi had traveled to Kenya to bring his wife and children to the United States. His wife and his 2 non-U.S. citizen children had recetly been approved for visas. When Abdi attempted to board his plane in Kenya, he learned that he had been placed on the "No Fly List" while in Kenya. Previously he had been on the Selectee List-- which still allowed him to fly after special screening. The suit argues that the No Fly List violates Abdi's constitutionally protected right of movement protected by the Due Process Clause. Fox13 News reports on the lawsuit.

Subsequent to the filing of the lawsuit, American authorities relented and allowed Abdi, who has been an American citizen since 2010-- to return to the United States on a Qatar Airlines flight which arrived Saturday. (Salt Lake Tribune).

Canada's Parliament Adds Transgender Protections To Discrimination and Hate Crime Laws

Canada's Parliament last week gave final passage to Bill C-16 (full text). The bill adds "gender identity or expression" to Canada's Human Rights Act and to the Hate Propaganda provision of Canada's Criminal code.  The bill comes into force when it receives Royal Consent.  Christian Post reports on the bill and responses to it.  Canada's Justice Minister says:

The purpose of this legislation is to ensure that everyone can live according to their gender identity and express their gender as they choose. It will protect people from discrimination, hate propaganda and hate crimes.

A spokesman for Canada's Campaign Life Coalition, however, contends:

Mark my words, this law will not be used as some sort of 'shield' to defend vulnerable transsexuals, but rather as a weapon with which to bludgeon people of faith and free-thinking Canadians who refuse to deny truth.

Recent Articles of Interest

From SSRN:

• Gábor Halmai, Varieties of State-Church Relations and Religious Freedom through Three Case Studies, (Michigan State Law Review, Vol. 2017, No. 2, 2017).
• Ahmed Elkahwagy, The Sacred Text between the American Constitution and the Religious Discourse in Egypt, (May 25, 2017).
• Brian D. Earp & Robert Darby, Circumcision, Sexual Experience, and Harm, (University of Pennsylvania Journal of International Law, Vol. 37, No. 2, 2017).
• Steven Douglas Smith, The Pagan City, the Christian City, and the Secular City, (San Diego Legal Studies Paper No. 17-290 (2017)).
• Steven Douglas Smith, Coming Home? The Imminent Immanent City, (San Diego Legal Studies Paper No. 17-291 (2017)).
• Jeffrey A. Parness, Marriage Equality, Parentage (In)Equality, (32 Wisconsin Journal of Law Gender and Society __ (Fall 2017) Forthcoming).
• James Fishman, Rethinking Riley: Applying Commensurate and Intermediate Scrutiny Standards to Judicial Evaluation of Charitable Solicitation Regulation, (June 1, 2017).