Georgia Supreme Court Dismisses On Standing Grounds Challenge To Tax Credit Scholarship Program

In Gaddy v. Georgia Department of Revenue, (GA Sup. Ct., June 26, 2017), the Georgia Supreme Court held that plaintiffs in the case lack standing as taxpayers or otherwise to challenge the constitutionality of Georgia's education tax credit program.  Under the program, taxpayers receive a dollar-for-dollar tax credit (up to specified limits) for contributions to student scholarship organizations set up to provide scholarships to students in private schools, both secular and religious.  The suit contended that the program violates the ban in the Georgia Constitution on providing public funds to aid any church, religious denomination or sectarian institution. The suit also alleged violations of other state constitutional and statutory provisions. Atlanta Journal Constitution reports on the decision.

Supreme Court: Same-Sex Spouses Must Get Equal Treatment In Birth Certificates

In Pavan v. Smith, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today granted certiorari and summarily (i.e. without further briefing or oral argument) reversed a decision of the Arkansas Supreme Court on the rights of same-sex married couples. The Supreme Court held that "Obergefell’s commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage'" means that the state must apply the same rules to same-sex and opposite-sex married couples in the issuance of birth certificates. Under Arkansas law, the male spouse of a woman who gives birth appeared on a birth certificate, but the female spouse of a woman who gives birth did not.  The Supreme Court struck this differentiation down, saying that in Arkansas birth certificates are more than just a marker of biological parentage.

Justice Gorsuch, in an opinion joined by Justices Thomas and Alito, dissented saying that this is an inappropriate case for summary reversal.

Supreme Court Holds Denial of Playground Resurfacing Grant To Church Violates Free Exercise Clause [UPDATED]

In a 7-2 decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today held that the First Amendment free exercise rights of Trinity Lutheran Church were violated when the state of Missouri denied the church's Child Learning Center a grant for resurfacing of its playground with scrap tire material.  The state had relied on Missouri Constitution's Blaine Amendment which prohibits financial assistance directly to any church.

Chief Justice Roberts delivered the opinion of the court which was joined in full by Justices Kennedy, Alito and Kagan.  Justices Thomas and Gorsuch joined Roberts' opinion except for a footnote that attempted to limit the holding to the facts of this case. In his opinion for the Court, Roberts said in part:

In recent years, when this Court has rejected free exercise challenges, the laws in question have been neutral and generally applicable without regard to religion. We have been careful to distinguish such laws from those that single out the religious for disfavored treatment.....

The Department’s policy expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.....

Trinity Lutheran is not claiming any entitlement to a subsidy. It instead asserts a right to participate in a government benefit program without having to disavow its religious character.... Trinity Lutheran is a member of the community too, and the State’s decision to exclude it for purposes of this public program must withstand the strictest scrutiny....

Justice Thomas filed a separate opinion concurring in part in which Justice Gorsuch joined. Justice Gorsuch filed a separate opinion concurring in part in which Justice Thomas joined.  Both opinions agreed largely with Justice Roberts, but would have been even stronger in support of the free exercise conclusion.

Justice Sotomayor filed a 27-page dissenting opinion which was joined by Justice Ginsburg, saying in part:

To hear the Court tell it, this is a simple case about recycling tires to resurface a playground. The stakes are higher. This case is about nothing less than the relationship between religious institutions and the civil government—that is, between church and state. The Court today profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church. Its decision slights both our precedents and our history, and its reasoning weakens this country’s longstanding commitment to a separation of church and state beneficial to both.....

The constitutional provisions of thirty-nine States—all but invalidated today—the weighty interests they protect, and the history they draw on deserve more than this judicial brush aside.

Washington Post reports on the decision.

Supreme Court Grants Review and Partially Lifts Injunctions Against Trump's Travel Ban

The U.S. Supreme Court today in a per curiam opinion in Trump v. International Refugee Assistance Project, (Sup. Ct., June 26, 2017), granted certiorari and partially lifted the outstanding injunctions against enforcement of President Trump's second travel ban Executive Order.  Under the Court's decision, the 90-day ban on entry of nationals from 6 Muslim-majority nations:

may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO–2.

The Court gave illustrations of the line it was drawing:

For individuals, a close familial relationship is required. A foreign national who wishes to enter the United States to live with or visit a family member ... clearly has such a relationship. As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2. The students from the designated countries who have been admitted to the University of Hawaii have such a relationship with an American entity. So too would a worker who accepted an offer of employment from an American company or a lecturer invited to address an American audience. Not so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals from the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion.

The Court similarly partially lifted the injunction against enforcement of the suspension of refugee admissions and the lowering of the cap on refugees, saying:

An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, ... the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.....

.... Section 6(a) may not be enforced against an individualseeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States. Nor may §6(b); that is, such a person may not be excluded pursuant to §6(b), even if the 50,000- person cap has been reached or exceeded. As applied to all other individuals, the provisions may take effect.

The Court also ordered that oral arguments in the case be heard during the first session of the October term of the Court. Justice Thomas, joined by Justices Alito and Gorsuch, in a separate opinion dissenting in part said that they would have stayed the preliminary injunctions in full and predicted extensive litigation over what constitutes a bona fide relationship. Washington Post reports on the decision.

Cert. Granted In Dispute Over Refusal To Create Cake For Same-Sex Wedding

The U.S. Supreme Court today granted review in Masterpiece Cake Shop v. Colorado Civil Rights Commission, (Docket No. 16-111, cert. granted  6/26/2017). (Order List).  In the case, a Colorado Court of Appeals held that a bakery owner's free exercise and free speech rights were not infringed when the Colorado Civil Rights Commission found that the refusal to create a wedding cake for a same-sex couple violates Colorado's public accommodation law  (See prior posting.)  The Colorado Supreme Court denied review. (See prior posting.)  The SCOTUSblog case page has links to briefs in the case.

Israel's Cabinet Suspends Agreement On Egalitarian Prayer Space At Western Wall

As reported by Haaretz and the Jerusalem Post, Israel's Cabinet on Sunday voted to suspend the agreement with Judaism's Reform and Conservative movements and the Women of the Wall movement approved by the Cabinet last year to construct a separate prayer space at the Western Wall for egalitarian prayer. Implementation of the agreement had already been long delayed.  (See prior related posting.)  Now negotiations will begin on a new plan acceptable to the ultra-Orthodox political parties.  Yesterday's move came after pressure from the ultra-Orthodox members Prime Minister Netanyahu's coalition. At the same time, the Cabinet approved continued construction to improve the Robinson's Arch area in the southern part of the Western Wall complex away from the main plaza.This area is currently used for mixed-gender prayer.  With yesterday's decision, attention now moves to the High Court of Justice where a lawsuit filed previously seeks to require the government to provide egalitarian prayer space at the Western Wall.  Some Cabinet members blamed the filing of that lawsuit for yesterday's Cabinet action, saying it undercut the possibility of informal resolution.

Union for Reform Judaism president Rabbi Rick Jacobs reacted strongly to the Cabinet's decision, calling it "an unconscionable insult to the majority of world Jewry."

Recent Articles of Interest

From SSRN:

• Bruce Ryder, Physicians' Rights to Conscientious Objection, (in Benjamin L. Berger and Richard Moon eds, Religion and the Exercise of Public Authority 127-147 (Oxford: Hart Publishing, 2016)).
• Nicholas Aroney & Matthew Turnour, Charities are the New Constitutional Law Frontier, (Melbourne University Law Review, Vol. 41, 2017).
• Steven Douglas Smith, Culture Wars as Pagan Counterrevolution, (San Diego Legal Studies Paper No. 17-293, 2017).
• June Carbone, 'Blue' Morality and the Legitimacy of the State — Ed Rubin's Soul, Self, and Society: The New Morality and the Modern State, (Law and Social Inquiry, Vol. 42, No. 2, 2017).
• Louis W. Hensler, The Legal Concept of ‘Natural Affection’: Natural Law or Natural Selection?, (June 21, 2017).
• Vebjørn Innset Hurum, Full-Face Concealment Ban in Public Places in Europe: How the European Court of Human Rights Has Failed to Do Its Job, (Penn Statim: The Online Companion to the Penn State Law Review, 2017).
• Joshua J. Craddock, The Case for Complicity-Based Religious Accommodations, (June 25, 2017).
• Hershey H. Friedman, The Wit and Sarcasm of the Talmudic Sage Ulla, (June 21, 2017).

Recent Prisoner Free Exercise Cases

In Ghailani v. Sessions, (10th Cir., June 21, 2017), the 10th Circuit allowed a Muslim inmate in federal prison after a terrorism conviction to move ahead with his complaint under RFRA that he is prohibited from attending Jumu'ah prayers because of the prison's housing conditions.

In Brandon v. Royce, 2017 U.S. Dist. LEXIS 94870 (S NY, June 20, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his 1st Amendment claim growing out of the denial to him of the prison's special Eid al-Adha meal.

In Ross v. LNU Director, 2017 U.S. Dist. LEXIS 95232 (D KA, June 21, 2017), a Kansas federal district court denied a motion to reconsider the dismissal of an inmate's complaint of delay in responding to his requests for Ramadan meal accommodations.

In Shabazz v. Giurbino, 2017 U.S. Dist. LEXIS 95949 (ED CA, June 21, 2017), a California federal magistrate judge recommended dismissing on qualified immunity and mootness grounds an inmate's suit complaining that serving Muslim inmates vegetarian breakfasts and lunches does not meet his religious dietary requirements.

In Carter v. Uhlik, 2017 U.S. Dist. LEXIS 95964 (ED CA, June 21, 2017), a California federal magistrate judge recommended denying an inmate's motion to rescind a settlement agreement in his free exercise case. Plaintiff complained of a subsequent unrelated delay in accommodating his religious dietary needs.

In Padilla v. Kernan, 2017 U.S. Dist. LEXIS 95993 (SD CA, June 20, 2017), a California federal district court allowed an inmate to move ahead with his suit complaining of denial of kosher meals for more than a year.

In Njos v. Carney, 2017 U.S. Dist. LEXIS 96533 (MD PA, June 21, 2017), a Pennsylvania federal magistrate judge recommended dismissing on qualified immunity and mootness grounds a Jewish inmate's suit over the number of ounces of grape juice he needed for his Sabbath meal religious observance.

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.