Northern Ireland Court Says No Right To Same-Sex Marriage

A trial court judge in the High Court of Northern Ireland yesterday held that the rights of same-sex couples under the European Convention on Human Rights are not infringed by the law of Northern Ireland which allows them only enter civil partnerships rather than full marriage.  As reported by The Independent, the decision comes in two cases heard together.  A press release by the court describes the opinion in one of the cases.  The judge pointed out that the European Court of Human Rights has already held that same-sex marriage is not a right under the Convention.  The judge observed, however:

To the frustration of supporters of same sex marriage the Assembly has not yet passed into law any measure to recognise and introduce same sex marriage. Their frustration is increased by the fact that the Assembly has voted by a majority in favour of same sex marriage, but by reason of special voting arrangements which reflect the troubled past of this State, that majority has not been sufficient to give the vote effect in law.

The Democratic Unionist Party has blocked passage of a law to allow same-sex marriage in Northern Ireland, even though it is recognized in the Irish Republic, England, Scotland and Wales. Law & Religion UK reports on the decision.

USCIRF Issues New Report on Blasphemy Laws Around the World

The U.S. Commission on International Religious Freedom this week released a report titled Respecting Rights? Measuring the World’s Blasphemy Laws. The report Overview describes the content:

This report examines and compares the content of laws prohibiting blasphemy (“blasphemy laws”) worldwide through the lens of international and human rights law principles.... This study seeks to evaluate the language and content of blasphemy laws to understand what aspects of these laws adhere to—or deviate from—international and human rights law principles.

Particularly useful to researchers is the Compendium of Laws set out as an Annex to the Report which reproduces the actual language of blasphemy provisions in the more than 70 nations that have such provisions.

Survey Reveals References To God or The Divine In Every State Constitution

In a study posted yesterday, Pew Research Center finds that "God or the divine is mentioned at least once in each of the 50 state constitutions and nearly 200 times overall."  The researchers add:

Of the 116 times the word [God] appears in state constitutions, eight are in the Massachusetts constitution, and New Hampshire and Vermont have six references each. Perhaps surprisingly, all three of these states are among the least religious in the country, according to a 2016 Pew Research Center analysis.

International Criminal Court Orders Reparations For Attack On Religious Buildings In Mali

In a press release, the International Criminal Court summarized its 61-page opinion in Prosecutor v. Al Madhi, (ICC, Aug. 17, 2017) imposing reparations on  Al Faqi Al Mahdi who had previously been convicted of war crimes for his part in attacking ten mausoleums that were part of the cultural heritage in Timbuktu, Mali:

Today, 17 August 2017, Trial Chamber VIII of the International Criminal Court ... issued a Reparations Order in the case of The Prosecutor v. Ahmad Al Faqi Al Mahdi, concluding that Mr Al Mahdi is liable for 2.7 million euros in expenses for individual and collective reparations for the community of Timbuktu for intentionally directing attacks against religious and historic buildings in that city. Noting that Mr Al Mahdi is indigent, the Chamber encourages the Trust Funds for Victims ("TFV") to complement the reparations award and directed the TFV to submit a draft implementation plan for 16 February 2018.

Vaccination of Children In Temporary State Custody Over Parental Religious Objection Is Not Authorized

In In re Elianah T.-T., (CT Sup. Ct., Aug. 15, 2017), the Connecticut Supreme Court held that the state's Commissioner of Children and Families is not authorized to require vaccination of children who are in temporary custody of the state where parents object to the vaccination. Here the parents' objection was based on religious beliefs. The statute allowing the Commissioner to authorize medical treatment of children in temporary state custody is not broad enough to include authorizing preventive care. Justice Rogers joined by Justice Eveleigh filed a concurring opinion.  AP reports on the decision.

Israel's High Court Says Women Must Be Allowed To Serve As Rabbinical Court Administrators

Times of Israel reports that Israel's High Court of Justice ruled yesterday that women must be allowed to serve in administrative positions as directors of rabbinical courts.  Previously they have been precluded from serving by a rule providing that to be eligible for that administrative position, the person must be eligible to serve as a city rabbi.  According to the Times:

The new requirements ordered by the court on Wednesday are that the candidate be a resident of Israel, possess a rabbinical court advocate license or a law practicing license along with a master’s degree in Jewish law or Talmud, have at least seven years of experience in rabbinical court appearances, and possess “character and lifestyle befitting a director of rabbinical courts.”

Roy Moore Moves To Run-Off Against Luther Strange In Alabama U.S. Senate Primary

As reported by AP and the New York Times, former Alabama Supreme Court Chief Justice Roy Moore came in first, capturing 38.9% of the vote, in yesterday's Alabama Republican primary for U.S. Senate. He will face incumbent Luther Strange, who received 32.8% of the vote, in the second round of the primary on Sept. 26.  Moore was removed as Chief Justice in 2003 when he refused to obey a court order to remove a Ten Commandments monument that stood on the state courthouse grounds.  After being re-elected as Chief Justice, last year he was suspended from his position for instructing probate judges to deny marriage licenses to same-sex couples. (See prior posting.)

Court Dismisses Claim That Solar Project Infringes Sacred Indian Mounds

The Springfield Republican reports that on Friday a Massachusetts federal district court dismissed a lawsuit that sought to stop development of a 6-acre solar farm in Shutesbury, Massachusetts. Plaintiffs contended that the property contained sacred Indian mounds and sacred stone landscapes.  According to the paper:

Two archaeologists ... had found no evidence of sacred structures or burial mounds on the property. However, the plaintiffs claimed that only a "tribal historic preservation officer" could make that determination.

In dismissing the case, [Judge] Mastroianni concluded that the plaintiffs and their consultants have no legal right to enter the property.

The religious land use statute "does not create a substantive right for a person to carry out religious activities on property owned or controlled by another," and the Historic Preservation Act only covers federal or federally assisted projects.

State Department Releases 2016 International Religious Freedom Report

Yesterday the State Department released its 2016 International Religious Freedom Annual Report (full text). In remarks on the Report, Secretary of Sate Tillerson highlighted concerns about religious liberty in Iran, Saudi Arabia, Turkey, Bahrain, China, Pakistan and Sudan. Importantly, Tillerson also emphasized the State Department's conclusion that ISIS is engaged in genocide as well as in crimes against humanity:

As we make progress in defeating ISIS and denying them their caliphate, their terrorist members have and continue to target multiple religions and ethnic groups for rape, kidnapping, enslavement, and even death.

To remove any ambiguity from previous statements or reports by the State Department, the crime of genocide requires three elements: specific acts with specific intent to destroy in whole or in part specific people, members of national, ethnic, racial, or religious groups. Specific act, specific intent, specific people.

Application of the law to the facts at hand leads to the conclusion ISIS is clearly responsible for genocide against Yezidis, Christians, and Shia Muslims in areas it controls or has controlled.

ISIS is also responsible for crimes against humanity and ethnic cleansing directed at these same groups, and in some cases against Sunni Muslims, Kurds, and other minorities. 

More recently, ISIS has claimed responsibility for attacks on Christian pilgrims and churches in Egypt.

The protection of these groups – and others subject to violent extremism – is a human rights priority for the Trump administration.

We will continue working with our regional partners to protect religious minority communities from terrorist attacks and to preserve their cultural heritage.

The full report surveys the state of religious freedom in some 195 countries around the world.

8th Circuit Upholds Nebraska's Funeral Picketing Law

In Phelps-Roper v. Ricketts, (8th Cir., Aug. 11, 2017), the U.S. 8th Circuit Court of Appeals upheld Nebraska's Funeral Picketing Law against both facial and as-applied challenges brought by members of the Westboro Baptist Church.  WBC has historically picketed military funerals-- which its members consider "patriotic hoopola"-- with anti-gay messages and other messages about national policies that WBC considers opposed to Biblical teachings.  The challenged Nebraska law prohibits picketing within 500 feet of a cemetery, mortuary, or church beginning one hour before and ending two hours after the start of a funeral. In upholding the law, the court concluded:

The rights of all speakers, including Phelps-Roper and others at funerals, to publically express their beliefs are protected by the First Amendment—but are not absolute....  Mourners, because of their vulnerable physical and emotional conditions, have a privacy right not to be intruded upon during their time of grief.... NFPL strikes a balance between these competing interests of law-abiding speakers and unwilling listeners in a way that is not facially unconstitutional. We likewise find that Phelps-Roper has failed to demonstrate that the NFPL was applied to her in an unconstitutional manner.

Omaha World-Herald reports on the decision.

Trial Judge Upholds Catholic School's Refusal To Re-enroll Students After Disruptive Year

NJ Advance Media reports that a New Jersey trial court judge yesterday, in a three-hour long decision read from the bench, upheld a Catholic school's refusal to re-admit two girls for this year after their father sued the school to get one of the girls on the boy's basketball team. The judge agreed with school officials that the parents had been disruptive to the school community, saying that the court does not have the authority "to meddle" in the school's ecclesiastical decision. The Archdiocese of Newark issued a statement on the decision.

Sikh Cadets Sue West Point Over Headgear Requirement

Two cadets who are observant Sikhs and who enrolled in the U.S. Military Academy at West Point filed suit in a Michigan federal district court yesterday contending that the Army has failed to follow its own regulations that allow Sikhs to serve without giving up their Sikh grooming and dress obligations.  The complaint (full text) in New Cadet Candidate Chahal v. Seamands, (ED MI, filed 8/14/2017), asserts that the Sikh cadets

are only welcome to remain at the Academy with their unshorn hair, beards, and turban on one condition: they must agree to wear the West Point “tar bucket”—a decorative hat worn in ceremonial parades a few times each year....

 For them, wearing the tar bucket over, or in place of, their turbans would desecrate their religious values....

The suit claims that requiring the cadets to wear the "tar bucket" violates their rights under the 1st and 5th Amendments and under RFRA.  Courthouse News Service reports on the lawsuit.

Australian Commission Recommends That Child Sex Abuse Learned In Confession Must Be Reported To Authorities

Australia's Royal Commission into Institutional Responses to Child Sexual Abuse yesterday issued a release  (which includes links to full text) announcing its publication of a report titled Criminal Justice.  The report puts forward 85 recommendations for reforms aimed at providing fairer responses to victims of institutional child sexual abuse. Here is the Commission's summary of its recommendations on disclosure of abuse learned by clergy during confessions:

The report recommends making failure to report child sexual abuse in institutions a criminal offence. This recommendation extends to information given in religious confessions. Clergy should not be able to refuse to report because the information was received during confession.

Persons in institutions should report if they know, suspect or should have suspected a child is being or has been sexually abused.

The Royal Commission heard of cases in religious settings where perpetrators who made a religious confession to sexually abusing children went on to reoffend and seek forgiveness. The report recommends there be no exemption, excuse, protection or privilege from the offence granted to clergy for failing to report information disclosed in connection with a religious confession.

AP reports on the Commission's action.

4th Circuit: Federal Law Does Not Entitle Disabled Students To Education In Their Religious Traditions

In M.L. v. Smith, (4th Cir., Aug. 14, 2017), the U.S. 4th Circuit Court of Appeals held that the Individuals with Disabilities Education Act (IDEA) does not require a public school system to instruct disabled Orthodox Jewish students in the customs and practices of their religion as part of the statutorily assured "free appropriate public education."  M.L.'s parents wanted his individualized education program to include instruction that would prepare M.L. for life in the Orthodox Jewish community.  The court concluded, however, that the school's only duty is to provide access to the same kind of secular education offered to others. Americans United issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Kevin H. Govern, International Humanitarian Law (IHL): Five Key Dynamics Shaping the Global Landscape, Security, and Freedom of Religion and the Way Ahead, (Chapter 4 in The Persecution and Genocide of Christians in the Middle East - Prevention, Prohibition, & Prosecution, Edited by Ronald J. Rychlak and Jane F. Adolphe (Angelico Press, 2017)).
• Caroline Mala Corbin, Government Employee Religion, (Arizona State Law Journal, Forthcoming).
• Lotem Perry-Hazan & Oshrat Perelstain, Mobilizing Ethnic Equality in Admissions to Schools: Litigation, Politics, and Educational Change, (Journal of Educational Change, Forthcoming).
• David B.Oppenheimer, Dr. King's Dream of Affirmative Action, (August 7, 2017).
• Joel Harrison, Autonomy and the Liberal Imagination in Jane Calderwood Norton's Freedom of Religious Organizations, (July 16, 2017).
• Scientia Moralitas, International Journal of Multidisciplinary Research, Vol. 2, No. 1, 2017. (Articles by Ioan Gheorghe Rotaru; Ganoune Diop; Mihaela Alexandra Tudor; and Cosmin Tudor Ciocan; Godina Bojan, Arpad Kovacs; Arthur Wagner, Alexandru Bulearcă).
• Donna Farag, From Tweeter to Terrorist: Combatting Online Propaganda When Jihad Goes Viral, (American Criminal Law Review, Vol. 54, No. 4, 2017).
• Catherine Jean Archibald, Transgender Bathroom Rights Post-Obama, (Forthcoming, Tennessee Journal of Race, Gender, and Social Justice).
• Shawn Fields, Is it Bad Law to Believe a Politician? Campaign Speech and Discriminatory Intent, (San Diego Legal Studies Paper No. 17-297, 2017).

From SSRN (Islamic Law):

• Joshua T. Carback, On Sharia in American Family Law: Confronting the Dangers of Legal Pluralism, (January 17, 2016).
• Jaber Seyvanizad, WMD Under Islamic International Law, (International Journal of Law, Volume 3; Issue 1; January 2017; Page No. 12-16).

Suit Seeks To Protect Eruv In New Jersey Township

A suit was filed last week in New Jersey federal district court against the Township of Mahwah, NJ, seeking to prevent its use of a zoning ordinance that prohibits signs on utility poles as a basis to require Orthodox Jews to dismantle an eruv that was set up in a portion of the township.  The eruv, created by agreement with the local utility company, makes use of lechis (thin plastic pipes) on utility poles.  The complaint (full text) in Bergen Rockland Eruv Association, Inc. v. Township of Mahwah, (D NJ, filed 8/11/2017), contends that the township's enforcement actions target the Orthodox Jewish community's exercise of religion, and thus violates the 1st and 14th Amendments as well as RLUIPA. NorthJersey.com reports on the lawsuit. [Thanks to Steven A. Sholk for the lead.]

2nd Circuit: Pregnancy Discrimination Claim Against Synagogue Can Proceed

In Shultz v. Congregation Shearith Israel of the City of New York, (2d Cir., Aug. 10, 2017), the U.S. 2nd Circuit Court of Appeals held that giving an employee a notice of termination of employment can be an "adverse employment action" under Title VII of the 1964 Civil Rights Act even though the notice is rescinded before the date that the firing becomes effective.  The court thus allowed a long-time Program Director for a New York synagogue to move ahead with her claim that she was given a termination notice because of disapproval of the fact that she was pregnant at the time of her recent marriage.  The court also allowed her to move ahead with her claim under the Family Medical Leave Act. [Thanks to Rabbi Michael Simon for the lead.]

Recent Prisoner Free Exercise Cases

In Hoever v. Belleis, (11th Cir., Aug. 10, 2017), the 11th Circuit held that denial of an English language Bible and devotional materials to an inmate for 20 days while in disciplinary confinement did not impose a substantial burden on his religious exercise.

In Harris v. Holmes, 2017 U.S. Dist. LEXIS 124062 (D NJ, Aug. 7, 2017), a New Jersey federal district court refused to issue a preliminary injunction against a prison's new policy on purchase of religious oils.

In Dunn v. Todd, 2017 U.S. Dist. LEXIS 124302 (ND NY, July 10, 2017), a New York federal district court dismissed with leave to amend an inmate's complaint that he was unable to contact his pastor and family.

In Keaton v. Ponte, 2017 U.S. Dist. LEXIS 124303 (SD NY, Aug. 4, 2017), a New York federal district court dismissed with leave to amend an inmate's complaint about strip searches in the chapel area.

In Shields v. Ahern, 2017 U.S. Dist. LEXIS 125424 (ND CA, Aug. 8, 2017), a California federal district court dismissed a Muslim inmate's complaints regarding halal meals, hiring of a Muslim chaplain, group prayer and study, religious items and books, and receiving packages from an Islamic vendor.

In Buckley v. County of San Mateo, 2017 U.S. Dist. LEXIS 125420 (ND CA, Aug. 8, 2017), a California federal district court dismissed with leave to amend a former inmate's complaint that his free exercise rights were infringed because Kosher meals provided were not actually Kosher and he was not allowed to wear certain religious items outside of his cell.

In Zapata v. Ducart, 2017 U.S. Dist. LEXIS 125453 (ND CA, Aug. 8, 2017), a California federal district court allowed a Messianic Jewish inmate to move ahead with his complaint that he was not allowed to participate in the kosher diet program.

In Ali v. Romero, 2017 U.S. Dist. LEXIS 125696 (D MD, Aug. 7, 2017), a Maryland federal district court refused to dismiss at least until the prison chaplains had been served an inmate's complaint over the lack of Islamic prayer services.

In Holmes v. Engleson, 2017 U.S. Dist. LEXIS 126228 (ND IL, Aug. 9, 2017), an Illinois federal district court dismissed a Rastafarian inmate's complaint that his dreadlocks and beard were removed forcibly.

In Simmons v. Williams, 2017 U.S. Dist. LEXIS 126294 (SD GA, Aug. 9, 2017), a Georgia federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his action for injunctive relief (but not his damage claims) under the 1st Amendment and RLUIPA for being dragged through a commons area wearing wet boxer shorts, which violated his religious beliefs that he must keep his awrah covered in the presence of others.

Judge Wrongly Relied On Defendant's Christian Religious Background To Enhance Sentence

In Miller v. People of the Virgin Islands, (VI Sup. Ct., Aug. 9, 2017), the Virgin Islands Supreme Court remanded for re-sentencing a case in which defendant plead guilty as an accessory after the fact to embezzlement of funds from a hospital.  The Supreme Court concluded that the sentencing judge wrongly relied on defendant's religion to impose a longer sentence that the one recommended in defendant's plea agreement. The sentencing judge had referred to defendant's "claims to Christianity and her theology degree" in explaining the longer sentence.

Free Exercise Claim Against Hospital Over Diet For Daughter Moves Ahead

In Dixon v. Department of Health and Human Services, (ED MI, Aug. 11, 2017), a Michigan federal district court allowed parents whose daughter was ordered hospitalized for mental health treatment to proceed with several claims.  Among them is a claim that the hospital is violating the parents' free exercise rights by feeding their daughter pork with knowledge of the family's religious beliefs.