Preliminary Injunction Refused: Settlement In Mosque Zoning Dispute Stands

In Youkhanna v. City of Sterling Heights, (ED MI, June 28, 2017), a Michigan federal district court refused to issue a preliminary injunction to prevent enforcement of a consent judgment entered into by the city of Sterling Heights.  The consent judgment allows the American Islamic Community Center to construct a mosque on land in the city.  Plaintiffs live near the mosque site.  Some are Chaldean Christians form Iraq and one is an Assyrian Christian from Syria.  They allege that their religious groups in Iraq and Syria have been subjected to violence by ISIS.  The court held that plaintiffs had not shown a likelihood of success on their constitutional and statutory claims regarding the validity of the consent judgment and the conduct of the meeting at which it was approved. (See prior related posting.)

Diocese and Parishes May Be Single Employer For Purposes of Title VII

In Clement v. Roman Catholic Diocese of Erie, (WD PA, June 16, 2017), a Pennsylvania federal magistrate judge refused to dismiss a Title VII sexual hostile work environment claim against two Catholic parishes and the Catholic Diocese of Erie.  Plaintiff served as Facilitator of Religious Education Programs in three parishes. In the case, the Diocese contended that plaintiff was employed only by the parishes, and the parishes claimed that individually each does not employ at least 15 individuals, the minimum number required before Title VII applies.  The court concluded that at this early stage of the litigation, evidence of the dual chain of command over defendant's position and the intermingling of parish and Diocese business affairs raises a reasonable expectation that discovery could reveal sufficient evidence to treat the Diocese and parishes as a single employer.  GoErie reports on the decision.

No Taxpayer Standing To Challenge North Carolina Conscience Law Excusing Magistrates From Performing Marriages

In Ansley v. Warren, (4th Cir., June 28, 2017), the U.S. 4th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to North Carolina's Senate Bill 2 which allows state magistrates who have religious objections to same-sex marriage to recuse themselves from performing all marriages.  (See prior posting.)  The court said in part:

The outcome here is in no way a comment on same-sex marriage as a matter of social policy. The case before us is far more technical—whether plaintiffs, simply by virtue of their status as state taxpayers, have alleged a personal, particularized injury for the purposes of Article III standing. Based on a century of Supreme Court precedent, we conclude that they have not.

Asheville Citizen-Times reports on the decision.

Man Destroys New 10 Commandments Monument At Arkansas Capitol

As previously reported, on Tuesday a 6-foot tall granite replica of the Ten Commandments was installed on the grounds of the Arkansas State Capitol.  According to Arkansas Online, less than 24 hours later a 32-year old Arkansas man drove a vehicle into the monument, destroying it. Police have arrested Michael Tate Reed, charging him with defacing objects of public respect, trespassing on Capitol grounds and first-degree criminal mischief.  Reed apparently live streamed his actions on Facebook.  Apparently Reed is the same person who 3 years ago similarly destroyed a Ten Commandments monument on the Oklahoma statehouse grounds. (See prior posting.) State Senator Jason Rapert who sponsored the Arkansas legislation authorizing the monument says that a new monument has already been ordered.

Michigan Supreme Court Holds Ecclesiastical Abstention Doctrine Is Not Jurisdictional

In Winkler v. Marist Fathers of Detroit, Inc., (MI Sup. Ct., June 27, 2017), the Michigan Supreme Court held that the ecclesiastical abstention doctrine:

requires a case-specific inquiry that informs how a court must adjudicate certain claims within its subject matter jurisdiction; it does not determine whether the court has such jurisdiction in the first place.

The court explained:

What matters ...  is whether the actual adjudication of a particular legal claim would require the resolution of ecclesiastical questions....

With that understanding, the Supreme Court remanded the case to the Court of Appeals for it to decide whether Michigan's Persons With Disabilities Civil Rights Act applies to religious schools.  At issue in the case is a Catholic high school's denial of admission to a student who contends that the denial was because of her learning disability.

Judge Denies New Counsel to Murder Defendant Claiming Religious Conflict With Attorney

Wichita Eagle reported yesterday that a Kansas trial court judge has denied the request by a defendant in a murder case who wants new counsel.  Defendant Rachael Hilyard, charged with decapitating Micki Davis, the mother of her ex-boyfriend, says she has an extreme religious conflict with her attorney.  She says her lawyer will not get her a psychological evaluation.  In a letter to the court, Hilyard said in part:

The victim in my case was a Jehovas Witness. I think he is one as well.  I am Catholic & this was a crime of God. I am requesting a change of counsel..... On a different case, this would be irrelevant. However, I am Catholic & and the head of a Jehovas Witness was found in my kitchen sink. I think she may have been a high ranking member in this religion.

Davis' family says she was not a Jehovah's Witness.

In Unusual Church Autonomy Dispute, Catholic School Can Require Immunization of All Students

In a case with an unusual twist, a Florida state appeals court yesterday upheld the policy of a Catholic school requiring immunization of all students, even when a parent has religious objections to immunization.  In Flynn v. Estevez, (FL App., June 27, 2017), the appeals court held that under the church autonomy doctrine, a civil court cannot require a religious school to comply with the provision in Florida law that allows parents to object on religious grounds to immunization of their children. It said in part:

...[T]he application of the statutory exemption to the Diocese is problematic due to the intramural ecclesiastical kerfuffle that underlies this dispute. The Diocese has a religiously-based immunization policy with which one of its members disagrees; Mr. Flynn seeks the power of the State to compel the Diocese to depart from its point-of-view and admit his non-immunized son. But doing so would further his own religious views at the expense of the Diocese’s on the topic of immunizations. We are convinced that a secular court should not be making the judgment as to which side’s religious view of immunization is to be respected.... Unlike other church autonomy cases, the unique feature of this one is that both parties assert Catholic religious doctrine as the basis for their litigation positions, which cautions against a secular court wading into the squabble.... 

Mr. Flynn claims the Diocese’s vaccination policy must be actually rooted in a specific religion doctrine, tenet, or text, and that its “general concern about the ‘common good’” is a religiously ineffectual basis for invoking the abstention doctrine. Though the trial court wasn’t presented with the specific religious basis for the Diocese’s new policy, we find no fault in its conclusion that “immunizations of children attending Catholic schools is an issue of faith, discipline, and Catholicism [that] can only properly be determined by the church and not by the civil courts.” Courts are in no more of a position to compel the Diocese to provide a sufficient quantum of passable proof that its view of immunization is consistent with the Catholic faith than to do so as to Mr. Flynn’s personal views of Catholic doctrine on the very same subject.

News Service of Florida reports on the decision.

Florida Enacts Student Religious Liberty Law

On June 12, Florida Governor Rick Scott signed SB 436, the Florida Student and
School Personnel Religious Liberties Act (full text) (legislative history). The law becomes effective July 1.  As summarized by the Florida Department of Education:

The bill requires school districts to treat a student’s voluntary expression of a religious viewpoint on an otherwise permissible subject the same as the district treats a secular viewpoint.... The bill also requires districts to allow students to wear religious clothing, accessories and jewelry to the extent secular items with symbols or messages are also allowed.

The bill requires that students be allowed to pray or participate in religious activities or gatherings before, during and after school, to the same extent secular activities or clubs are allowed.... The bill requires school districts to give religious groups the same access to school facilities and ability to announce or advertise meetings as given to secular groups.

Finally, the bill requires all school districts to adopt a policy creating a limited public forum for student speakers at school events where students speak publicly and cannot discriminate against voluntary religious expression by a student on an otherwise permissible subject....

Ten Commandments Monument Erected On Arkansas Statehouse Grounds

NPR News reports that yesterday a 6-foot tall granite replica of the Ten Commandments was installed on the grounds of the Arkansas State Capitol.  In 2015, the state legislature enacted legislation authorizing the monument, to be financed privately. (See prior posting.)  State Senator Jason Rapert, the sponsor of the legislation, told reporters yesterday:

We have a beautiful Capitol grounds but we did not have a monument that actually honored the historical moral foundation of law. And today we have now, through the support of people all over the country, mostly from Arkansas, been able to erect this monument at zero taxpayer expense.

The ACLU says it will file suit to get the monument removed.

Supreme Court Remands School Aid Cases For Reconsideration In Light of Trinity Lutheran Decision

The U.S. Supreme Court yesterday, in light of its decision this week in Trinity Lutheran Church of Columbia, Inc. v. Comer, sent back to the lower courts for reconsideration school aid cases from Colorado and New Mexico.  All the cases remanded involved reliance on state Blaine amendments to invalidate aid to religious schools.  In three consolidated cases from Colorado, the Court granted certiorari, vacated the judgments below, and remanded to the Supreme Court of Colorado for further consideration. The Colorado cases are Doyle v. Taxpayers for Public Education, (Docket No. 15-556), Douglas City School District v. Taxpayers for Public Education,  (Docket No. 15-557), and Colorado State Board of Education v. Taxpayers for Public Education, (Docket No. 15-558). (June 27, 2017 Order List).  In the cases, the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. (See prior posting.)

In New Mexico Association of Nonpublic Schools v. Moses, (Docket No. 15-1409), the Supreme Court also granted certiorari, vacated the judgment and remanded to the Supreme Court of New Mexico for further consideration. In the case, the New Mexico Supreme Court struck down a New Mexico statute that allows the state to lend secular textbooks to private and parochial school students. (See prior posting.)

British Regulator Issues Guidance On Religious Beliefs In Pharmacy Practice

Britain's General Pharmaceutical Council, the regulator for pharmacists, pharmacy technicians and registered pharmacies in England, Scotland and Wales, this month issued a Guidance Document for pharmacy professionals titled In Practice: Guidance on Religion, Personal Values and Beliefs. Here is an excerpt from the document:

In some cases, a pharmacy professional’s religion, personal values or beliefs may influence their day-to-day practice, particularly whether they feel able to provide certain services.... 

Pharmacy professionals have the right to practise in line with their religion, personal values or beliefs as long as they act in accordance with equalities and human rights law and make sure that person-centred care is not compromised....

If a pharmacy professional is unwilling to provide a certain service, they should take steps to make sure the person asking for care is at the centre of their decision-making, so they can access the service they need in a timely manner and without hindrance.

[Thanks to Law & Religion UK for the lead.]

Court Says Kaporos Ceremony Not Covered By Unfair Competition Law

In Animal Protection and Rescue League, Inc. v. Chabad of Irvine, (CA Super. Ct., June 23, 2017) a California trial court ruled that a challenge by an animal rights group to the Jewish pre-Yom Kippur ritual of kaporos should be dismissed.   The suit alleged violations of California's Unfair Competition Law which prohibits unlawful business practices, contending that the manner in which chickens used in the ritual were kept, slaughtered and disposed of violates various state and local laws.  The court held however that the kaporos ceremony is not a "business act or business practice," explaining:

Chabad-Irvine's purchase of chickens for the participants to use in the ... Kaporos ritual does not transform its conduct from that of a synagogue meeting ... the religious and spiritual needs of the community to that of a commercial enterprise....

... [M]any religious services or ceremonies result in donations being solicited and made (e.g. when offering plates or baskets are passed among a congregation during a religious service...). But that does not convert those religious activities, rituals and observances into business practices.

First Liberty issued a press release announcing the decision and also provides links to the pleadings and court orders in the case. Orange County Register reported on the decision.

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.