Trinity Lutheran Decision Does Not Apply to Neutral Ban on Funds to Private Schools

As reported by the Detroit Free Press, a Michigan state Court of Claims judge held this week that the U.S. Supreme Court's Trinity Lutheran decision is not a basis for lifting a preliminary injunction issued earlier this month barring payment of $2.5 million the legislature had allocated to private schools to cover the cost of complying with state mandates. That injunction was based on a Michigan state constitutional provision that bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school".  In Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI Ct. Cl., July 25, 2017), the court said in part:

... the Court concludes at this juncture that the constitutional provision at issue in this case, Article 8, § 2 of the Michigan Constitution, can be understood as falling within the category of neutral and generally applicable laws, rather than n provision that singles out the religious for disfavored treatment....  [T]his Court is disinclined to extend the Trinity Lutheran decision to a case that plainly does not involve express discrimination.

DOJ, EEOC File Opposing Briefs On Title VII and LGBT Discrimination

On Wednesday, the Department of Justice filed an amicus brief (full text) with the U.S. Second Circuit Court of Appeals in the court's en banc rehearing in Zarda v. Altitude Express, Inc.  In the case the Justice Department argued that "Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination."  That position directly contradicts the position taken by the EEOC in an amicus brief (full text) filed last month in the same case.  The EEOC argued that sexual orientation discrimination claims "fall squarely within Title VII’s prohibition against discrimination on the basis of sex." BuzzFeed reports on the Justice Department's brief.

Gov. Sam Brownback Picked As Ambassador For International Religious Freedom

The White House announced on Wednesday that President Trump will nominate Kansas Governor Samuel Brownback to be Ambassador at Large for International Religious Freedom. Before becoming governor, Brownback served for 15 years as U.S. senator where he was a key sponsor of the International Religious Freedom Act of 1998.  Reactions to Brownback's nomination varied. In a press release, the ACLU said in part:

... throughout his tumultuous tenure, Gov. Brownback worked tirelessly to erode the protections that the First Amendment affords for the separation of church and state.  More troubling, Gov. Brownback has been one of the nation's leading proponents of the notion that people, businesses, and even governments should be able to discriminate against others because of their own religious beliefs.

On the other hand, Liberty Counsel's press release applauded the nomination, saying in part:

Innocent people around the world are imprisoned, tortured, and persecuted for their faith. Christians and religious minorities are suffering more persecution than at any time in history. Gov. Brownback has proven that he will fight for religious freedom and will do an excellent job defending this sacred freedom around the world.

New York Times reported on the President's choice.

Court Interprets Vaccination Provision In Custody Decree

In In Re the Paternity of: G.G.B.W., (IN App., July 26, 2017), an Indiana appeals court held that the mother of a minor child should be held in contempt of a custody decree when she refused for religious reasons to have the child vaccinated.  A decree consented to by the mother and father of the child provided:

If the child attends a school that requires vaccinations for enrollment, and the child will be denied enrollment unless she receives the vaccinations, then the child will be given the required vaccinations for enrollment.

The court held that this requires the child be vaccinated upon enrollment in a school that requires its students to be vaccinated, even when a religious exemption from the vaccination requirement was available under Indiana statutes, saying:

If the parties intended the religious objection exemption to apply, they most likely would not have included the vaccination provision in the agreement at all, because a religious objection would always trump a school’s vaccination requirement and the provision would be meaningless.

The father was particularly concerned because of the danger that would be posed to his twin infant children if they were around the older child who was not vaccinated. Indiana Lawyer reports on the decision.

Catholic School Teacher Stripped of Tenure May Sue

In Mis v. Fairfield College Preparatory School, 2017 Conn. Super. LEXIS 3741 (CT Super., June 20, 2017), a Connecticut trial court refused to dismiss a suit by a tenured teacher at a Jesuit prep school whose employment was terminated by the president of the school. The president insisted that teacher Jason Mis engaged in "moral misconduct" when he took an unauthorized ride in a golf cart at a country club during a fundraising fashion show for the school.  Mis requested a committee hearing on his dismissal, as provided for in the school's handbook.  The hearing committee concluded that Mis had not engaged in moral misconduct, and that termination of his tenure was not supported.  Nevertheless the school terminated Mis, who then sued for breach of contract and defamation.  The court rejected the school's attempt to raise the ministerial exception as a bar to jurisdiction.  It went on to hold that the suit may be adjudicated using neutral principles of law without deciding between competing definitions of moral misconduct.

Trump Administration Reverses Policy Allowing Transgender Individuals To Serve In Military

Last year, Obama Administration Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military was being lifted. (See prior posting.) Today, President Trump in a series of three Tweets (1, 2, 3) announced a reversal of that policy, saying:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.

EEOC Files Two Religious Discrimination Suits

Last week, the EEOC filed two religious discrimination cases.  In Michigan, it filed suit against a Tim Horton's franchise for refusing to accommodate an employee who for religious reasons wanted to wear a skirt instead of the pants that are a standard part of the company's uniform. According to the EEOC, the Romulus, Michigan Tim Horton's refused to accept the explanation in a letter from the employee's  Pentecostal Apostolic minister, and fired the employee.

In Maryland, the EEOC filed suit against a security services firm because of its treatment of Muslim security guard Kelvin Davis.  According to an EEOC press release, when Davis complained to management about a racial slur directed at him by his supervisor, the company retaliated against him, among other ways, by revoking the prior accommodation it had granted to allow Davis to wear a beard. Ultimately intolerable working conditions led Davis to resign.

KFC Franchisee Sues Over Right To Sell Halal Chicken

In Illinois, the owner of eight Chicago-area Kentucky Fried Chicken franchises sued the franchisor, KFC, Inc. in federal court after it attempted to enforce a provision in the franchise agreement that effectively would destroy the ability of the 8 stores to sell halal chicken.  In Lokhandwala v. KFC Corp., (ND IL, filed 7/24/2017), the complaint (full text) alleged that in 2016 the company for the first time claimed that it had a long-standing policy of prohibiting religious claims about Kentucky Fried Chicken products.  The policy was aimed at preventing lawsuits and customer confusion.  The Halal Food Disclosure Requirements of Illinois law require sellers of halal food to post a disclosure statement identifying the distributor and slaughter facility. Plaintiff alleges contract law claims, as well as claims under the Illinois Franchise Disclosure Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act. Courthouse News Service reports on the lawsuit.

Injunction Extended To Protect Iraqi Nationals From Immediate Deportation

In Hamama v. Adducci, (ED MI, July 24, 2017), a Michigan federal district court, in a 35-page opinion, issued a new preliminary injunction-- extending the one issued earlier this month-- preventing some 1444 Iraqi nationals with deportation orders from being removed while they attempt to convince immigration courts that their return will subject them to persecution, torture and possible death.  The Iraqis involved are Chaldean Christians, Kurds, and Sunni and Shiite Muslims.  The court said in part:

... all Petitioners will be targeted for torture or death based solely on their association with America.... Further, the perpetrators will not be limited to just ISIS, whose fortunes and influence may wax and wane with time. The record demonstrates that other Sunni groups, Shi’a militias backed by Iran, as well as Iraq’s own internal security forces, harbor  prejudice towards those affiliated with America, which will manifest itself in the form of torture and extrajudicial killings.... All Petitioners are also at risk due to the media coverage of their criminal records.... And it appears that most Petitioners are religious minorities who will face persecution at the hands of ISIS, other sectarian militias, or Iraq’s own forces.

Detroit Free Press reports on the decision.

Canadian Court Convicts 2 FLDS Leaders of Polygamy

In the Canadian province of British Columbia yesterday, a trial court found two former bishops of the FLDS Church guilty of polygamy.   The two, who were part of the FLDS colony in Bountiful, B.C., married multiple women in so-called celestial marriages.  Canadian Press reports that James Oler who was married to five women, and Winston Blackmore who was married to 25 women in celestial marriages, were convicted after an earlier 12-day. Blackmore's lawyer plans to appeal on constitutional grounds. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Barnes v. Annucci, 2017 U.S. Dist. LEXIS 110564 (ND NY, July 14, 2017), a New York federal magistrate judge recommended that a Nation of Islam inmate be allowed to move ahead with his complaint that during a cell search, authorities confiscated and discarded three of his kufis.

In Oppenheimer v State of New York, 2017 N.Y. App. Div. LEXIS 5709 (NY App, July 20, 2017), a New York state appeals court held that a Muslim inmate's free exercise claim growing out of a pat frisk by a female corrections officer cannot be asserted in the state Court of Claims.

In Potts v. Holt, 2017 U.S. Dist. LEXIS 113250 (MD PA, July 19, 2017), a Pennsylvania federal magistrate judge recommended dismissing a suit by an inmate complaining about a 4-day interruption of religious meals while prison officials were dealing with a food poisoning outbreak.

In Alster v. Fischer, 2017 U.S. Dist. LEXIS 113348 (W NY, July 20, 2017), a New York federal district court dismissed some claims by a Jewish inmate for failure to exhaust administrative remedies and on other grounds, but permitted him to move ahead with claims of denial of communal celebrations for Sabbaths and holy days; his exclusion from Jewish group events; and lack of Jewish worship space.

In Kindred v. Bell, 2017 U.S. Dist. LEXIS 114195 (ED CA, July 20, 2017), a California federal magistrate judge recommended denying a preliminary injunction to a Native American civil detainee who complained about failure to deliver to him a package containing religious items and about confiscation of a bolo tie.

Recent Articles of Interest

From SSRN:

• Yishai Blank, In Search of the Secular, (Institutionalizing Rights and Religion: Competing Supremacies 126-144 (L. Batnitzky & H. Dagan eds., Cambridge University Press) (2017)).
• Howard Kislowicz, Business Corporations as Religious Freedom Claimants in Canada, (June 16, 2017).
• Michelle Biddulph, We Don't Need No (Catholic) Education — But Why Can't It Be Saved by Section 1? A Comment on Good Spirit School Division No. 204, (Forthcoming, Saskatchewan Law Review (2017)).
• JoAnne Sweeny, Breaking Through Gridlock to Protect Human Rights: The Case for a Congressional Human Rights Committee, (54 S.D. L. Rev. 21 (2017)).
• Syuhaida Idha Abd Rahim, Mohd Asmadi Yakob, Siti Khurshiah Mohd Mansor, & Rukiah Mohamad, Talaqqi Method in Teaching and Learning Islamic Education at Pondok Institutions, (Global Journal of Business and Social Science Review, Vol. 4 (3) 2016. 68-73).
• Laila Refiana Said, Siti Aliyati Albushairi &Gusti Rina Fariany, The Competitiveness Creation Strategy of Islamic Banking, (Global Journal of Business & Social Science Review, Vol. 5(2) 2017. 29-34).
• Javier Martin Reyes, Ni si, ni no, sino todo lo contrario: El Tribunal Electoral, la Iglesia católica y la imposible nulidad de la elección de Gobernador en Aguascalientes (Neither Yes nor No, but the Opposite: The Election Court, the Catholic Church, and the Impossible Nullification of the Gubernatorial Race in Aguascalientes), (February 23, 2017).

From SmartCILP:

• L. Darnell Weeden, Marriage Equality Laws Are a Threat to Religious Liberty, 41 Southern Illinois University Law Journal 211-236 (2017).
• Stephen L. Carter, Scalia, J., Dissenting: A Fragment on Religion, 126 Yale Law Journal 1612-1628 (2017).
• Corri Zoli, The "God Gap" In International Affairs: Missing Cross-Cultural Conversations in International Humanitarian Law and Islamic Jurisprudence, 28 Florida Journal of International Law 273-328 (2016).
• John W. Teeter Jr., Of Blood and the Buddha: A Nichiren Primer on Counseling Clients, [Abstract], 28 Florida Journal of International Law 343-352 (2016).

Ark Encounter Land Transfer Jeopardizes Tax Incentives

WHAS reported Saturday that Ark Encounter theme park may not get the $18 million in sales tax rebate incentives previously promised to it because the land on which the theme park sits has been sold for a nominal amount to a non-profit entity owned by the theme park's founder. The sale for $10 of the theme park land to Ken Ham's Crosswater Canyon-- a breach of contract-- means that Grant County, Kentucky where Ark Encounter is located will lose $700,000 in expected revenue from Safety Assessment fees as well as property taxes, even though the theme park has cost the county $715,000 for extra police and fire personnel. The Safety Assessments do not apply to non-profits. Officials are hopeful that negotiations will resolve the dispute.

UPDATE: According to Cincinnati.com, in  order to preserve its tax incentive, Ark Encounter on July 24 sold the theme park property back to its for-profit entity.

Plaintiffs Awarded Attorneys' Fees In Suit Against County Clerk Kim Davis

In Miller v. Davis, (ED KY, July 21, 2017) a Kentucky federal district court awarded $224,703 in attorney’s fees and costs to plaintiffs who previously obtained a preliminary injunction against Rowan County, Kentucky Clerk Kim Davis.  Davis, citing her religious beliefs, stopped issuing marriage licenses entirely in order to avoid issuing licenses to same-sex couples.  The court yesterday held that plaintiffs were entitled to attorneys' fees because they were the “prevailing party” --they obtained a preliminary injunction that granted the relief they sought. The ultimate dismissal of the case after a change in the law rendered it moot did not change this conclusion.  The court, in a 50-page opinion, said in part:

In this case, the Plaintiffs “prevailed by every measure of victory.” The relief Plaintiffs obtained—the ability to secure marriage licenses and marry—was “preliminary” in name only. It is not the “fleeting” success that fails to establish prevailing-party status.  After the Court obtained compliance with the Preliminary Injunction Orders, Plaintiffs received marriage licenses. And once the plaintiff-couples received their marriage licenses, their rights were not subject to revocation….

... Couples continued to receive marriage licenses after the Kentucky General Assembly amended the law – albeit, on a form Davis felt more comfortable with. Therefore, Plaintiffs’ preliminary-injunction success materially altered their legal relationship with Davis, and that court-ordered change was enduring and irrevocable. Accordingly, the Court concludes that the Plaintiffs “prevailed” within the meaning of § 1988 and are entitled to attorneys’ fees.

The court also held that the state of Kentucky, not Rowan County, is liable for the attorneys’ fees. AP reporting on the decision says Davis plans to appeal, but the state of Kentucky has not yet decided whether it will appeal the ruling. [Thanks to Tom Rutledge for the lead.]

Constitutionality Of No-Fly List Upheld

In Mohamed v. Holder, (ED VA, July 20, 2017), a Virginia federal district court upheld the constitutionality of the government's No-Fly List in a challenge by a Muslim American citizen originally from Somalia.  One of plaintiff's challenges implicated religious freedom rights. The court said in part:

He argues that many First Amendment freedoms, such as the free exercise of religion, cannot be fully enjoyed without recognizing the right to travel internationally, such as by traveling to Mecca to fulfill the Islamic duty of hajj....  

There is much to warrant extending the fundamental right to travel or movement to include international travel. As Plaintiff correctly observes, the right to international travel is recognized by international agreements to which the United States is a party, and in today’s world, restricting a person’s right to international travel can, in some circumstances, have as profound an adverse effect on a person’s ability to exercise other liberty interests as a restriction on the right to interstate travel. .... 

Nevertheless, the United States also has a long history of judicially sanctioned restrictions on citizens’ international travel in the interests of foreign affairs and national security that would never have been countenanced with respect to interstate travel.... Moreover, the Supreme Court has strongly implied, though it has not explicitly stated, that there is no fundamental right to international travel.

Church Youth Group Covered By Megan's Law

In State v. S.B., (NJ Sup. Ct., July 20, 2017), the New Jersey Supreme Court held that a youth ministry associated with a church is a "youth serving organization" under Megan's Law. That law prohibits sex offenders whose victims were minors from participating in any way in these youth organizations.  The court emphasized it was deciding a question of statutory interpretation and that no constitutional issue was raised by the parties.  In the case, the defendant whose sexual assault convictions took place in 1991 was a volunteer youth leader, counselor, mentor, and chaperone for children ages 12- 17 in the church's No Limits Youth Ministry. NJ.com reports on the decision.

Court Enjoins Illinois Law Requiring Referrals Out For Abortions

In National Institute of Family Life Advocates v. Rauner, (ND IL, July 19, 2017), an Illinois federal district court granted a preliminary injunction to plaintiffs, a group of pro-life health care facilities and medical personnel, who object to Illinois SB 1564.  The statute, as a condition of immunity from suit for not performing conscience-infringing health care services, requires objecting personnel to refer the patient elsewhere for the services.  The court, citing other free-expression cases, concluded:

...the amended act under review in this case applies only to health care providers with conscience-based objections to certain legal treatment options such as abortion. Therefore, the court finds that plaintiffs have demonstrated a likelihood of showing that the amended act discriminates against health care providers that are of the point of view that abortion is wrong by compelling only them to speak a message that, from their viewpoint, is abhorrent.

The court issued a preliminary injunction barring enforcement of the statute

to the extent that enforcement would penalize health care facilities, health care personnel, or physicians who object to providing information about health care providers who may offer abortion or who object to describing abortion as a beneficial treatment option.

Christian Post reports on the decision.

Catholic Order Sues To Force Rerouting of Pipeline

A religious Order of Catholic women last week filed suit in a Pennsylvania federal district court contending that a decision of the Federal Energy Regulatory Commission violates the Religious Freedom Restoration Act. The complaint (full text) in Adorers of the Blood of Christ v. Federal Energy Regulator Commission, (ED PA, filed 7/14/2017), contends that FERC's approval of the Atlantic Sunrise Pipeline route running through the religious Order's property, and giving Transcontinental Pipeline Company the power to take the land by eminent domain, substantially burdens the Order's religious belief that it must protect and preserve the land it owns. The suit contends that because FERC could approve an alternative route that goes around the property owned by the Catholic Order, it has not used the least restrictive means to achieve its goal. Adorers announced the lawsuit in a blog post.

Activist's Suit Argues Gay Pride Flags Are Religious Symbols

The San Diego Union Tribune reported yesterday that anti-gay marriage activist Chris Sevier has filed suit against four members of Congress seeking to force them to remove rainbow flags they have in the hallways outside their Congressional offices.  According to the Union Tribune:

Sevier’s 38-page complaint asks the federal District Court in the District of Columbia to determine that “‘homosexuality’ and other forms of self-asserted sex-based identity narratives are a ‘religion,’” and that the colorful banners are a religious symbol for the “homosexual denomination.” ...

Sevier also asked the court to overturn Supreme Court rulings that ended a prohibition against sodomy and federal policies that only recognized opposite-sex marriages, as well as Obergefell V. Hodges, the 2015 ruling that found that same-sex couples have a fundamental right to marry.

Further, he said the members who displayed the flag should be removed from office.

Sevier has previously lost suits, aimed at discrediting same-sex marriage, in which he challenged state refusals to allow him to marry his laptop. (See prior posting.)

Court Dismisses Husband's Suit Over Pastor's Affair With Wife

In Laidlaw v. Converge Midatlantic, 2017 Phila. Ct. Com. Pl. LEXIS 203 (PA Com. Pl., July 19, 2017), a Pennsylvania trial court dismissed a suit brought by a husband who is seeking damages for a sexual affair between his wife and the pastor of the couple's church.  In prior years the pastor had furnished marriage counseling to the couple.  While the suit was framed as claims for negligence, infliction of emotional distress, fraud and defamation, the court held that these are in reality "heart balm" torts which were eliminated by case law and statute in Pennsylvania decades ago.  The court added:

Even if Appellant's claims were not barred as obsolete heart balm torts, the First Amendment to the United States Constitution requires this Court to dismiss them because they would constitute impermissible state intrusion upon religion. Appellant's claims against his church and pastor for the affair are wholly based in religious doctrine, perceived social pressures from his religious community, and his own faith-his personal faith in his pastor and in his church. Therefore, the Court would be forced to interpret and evaluate church canons, discipline, and faith to determine the merit of his claims.