Coach Loses Bid To Pray On 50-Yard Line

In Kennedy v. Bremerton School District, (9th Cir., Aug. 23, 2017),  the U.S. 9th Circuit Court of Appeals affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a widely publicized challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games.  The appeals court concluded that Coach Joseph Kennedy was not likely to succeed on the merits of his free speech claim  It held that in kneeling and praying on the 50-yard line, Kennedy was speaking as part of his public employment.  His employer had the right to order him not to speak in his official capacity in the manner which he did.  The court added:

On Friday nights, many cities and towns across America temporarily shut down while communities gather to watch high school football games. Students and families from all walks of life join “to root for a common cause” and admire the young people who step proudly onto the field.... While we “recognize the important role that public worship plays in many communities, as well as the sincere desire to include public prayer as a part of [these] occasions,” such activity can promote disunity along religious lines, and risks alienating valued community members from an environment that must be open and welcoming to all.... That is why the “preservation and transmission of religious beliefs and worship is a responsibility and a choice committed to the private sphere, which itself is promised freedom to pursue that mission.”

Judge Smith filed a concurring opinion to express his view that the school district's actions actions were also justified to avoid violating the Establishment Clause. The majority held that it need not reach the Establishment Clause issue.  Kitsap Sun reports on the decision.

Religious Order Loses Attempt to Stop Pipeline

In Transcontinental Gas Pipeline Co., LLC v. Permanent Easement for 2.14 Acres, (ED PA, Aug. 23, 2017), a Pennsylvania federal district court held that Transcontinental Pipeline Co. has the right to condemn and take immediate possession of property of the Adorers of Christ religious order so that the company can build its Atlantic Sunrise Pipeline.  The court said in part:

Adorers claim that they "exercise their religious beliefs by, among other things, caring for and protecting the land they own," and that their efforts to "preserve the sacredness of God's Earth" are integral to the practice of their faith.  However, the Adorers have failed to establish how Transco's possession of the right of way on their land will in any way affect their ability to practice their faith and spread their message. They have not presented one piece of evidence that demonstrates how their religious beliefs will be abridged in any way.

Fired Pastor's Contract Suit Dismissed Under Ministerial Exception and Excessive Entanglement Doctrines

In Lee v. Sixth Mount Zion Baptist Church of Pittsburg, (WD PA, Aug. 22, 2017), a Pennsylvania federal district court dismissed a breach of contract claim brought by a pastor against the church that had terminated his employment.  Rev. William Lee claims that the church breached his contract by not compensating him under the clause relating to termination without cause. the church argued that Lee was terminated for failing to fulfill his duties and responsibilities under the contract. The court dismissed on ministerial exception and excessive entanglement grounds, saying in part:

[T]he “ministerial exception” recognizes the right of a religious institution in exercising its First Amendment guarantee of religious liberty and autonomy in matters ecclesiastical to terminate from employment a Pastor such as Rev. Lee. Rev. Lee’s dispute with the Church regarding his termination from employment fully implicates such rights....

The Church argues that where Rev. Lee failed in spiritual stewardship, financial stewardship and responsiveness to Church leadership, as determined by the Church and its Congregation, his termination was for cause under § 12.3.... 

[T]he Court concludes that any determination whether Rev. Lee failed in his spiritual and financial stewardship and responsiveness to Church leaders is a matter best left to the Church alone. Otherwise, the Court and jury would need to probe how the Church evaluated spiritual success and leadership under its doctrine.... Prohibited considerations of ecclesiastical hierarchy are directly implicated in the assessment that Rev. Lee did not adequately respond to Church leadership.

India's Supreme Court Invalidates Triple Talaq Divorces For Muslims

India's Supreme Court today, by a vote of 3-2, invalidated the Sunni Muslim practice of divorce by triple talaq.  In Bano v. Union of India, (India S.Ct., Aug. 22, 2017), in 3 opinions spanning 395 pages, three justices agreed (in 2 separate opinions) that triple talaq is invalid.  Two other justices concluded that the practice is not unconstitutional, but urged the government to legislate on the matter within 6 months and would have enjoined use of the divorce procedure during that period.

Justice Nariman's opinion, joined by Justice Lalit concluded:

it is clear that this form of Talaq is manifestly arbitrary in the sense that the marital tie can be broken capriciously and whimsically by a Muslim man without any attempt at reconciliation so as to save it. This form of Talaq must, therefore, be held to be violative of the fundamental right contained under Article 14 [Right to Equality] of the Constitution of India. In our opinion, therefore, the 1937 Act [Muslim Personal Law (Shariat) Application Act], insofar as it seeks to recognize and enforce Triple Talaq ... must be struck down as being void to the extent that it recognizes and enforces Triple Talaq.

Justice Joseph concluded that "triple talaq is against the basic tenets of the Holy Quran and consequently, it violates Shariat."  He continued:

The whole purpose of the 1937 Act was to declare Shariat as the rule of decision and to discontinue anti-Shariat practices with respect to subjects enumerated in Section 2 which include talaq. Therefore, in any case, after the introduction of the 1937 Act, no practice against the tenets of Quran is permissible.... What is held to be bad in the Holy Quran cannot be good in Shariat and, in that sense, what is bad in theology is bad in law as well.

Chief Justice Khehar, Joined by Justice Nazeer, concluded that triple talaq is protected by Article 25 of the Constitution that protects freedom of religion, saying in part:

It is not for a court to determine whether religious practices were prudent or progressive or regressive. Religion and ‘personal law’, must be perceived, as it is accepted, by the followers of the faith. And not, how another would like it to be (-including self-proclaimed rationalists, of the same faith). Article 25 obliges all Constitutional Courts to protect ‘personal laws’ and not to find fault therewith. Interference in matters of ‘personal law’ is clearly beyond judicial examination....

However, he qualified this by calling on the government to modify the situation by legislation, saying:

[we] are satisfied, that this is a case which presents a situation where this Court should exercise its discretion to issue appropriate directions under Article 142 of the Constitution. We therefore hereby direct, the Union of India to consider appropriate legislation, particularly with reference to ‘talaq-e-biddat’. We hope and expect, that the contemplated legislation will also take into consideration advances in Muslim ‘personal law’ – ‘Shariat’, as have been corrected by legislation the world over, even by theocratic Islamic States....

Till such time as legislation in the matter is considered, we are satisfied in injuncting Muslim husbands, from pronouncing ‘talaq-e-biddat' as a means for severing their matrimonial relationship. The instant injunction, shall in the first instance, be operative for a period of six months.

The Quint reports on the decision.

Suit Says School Personnel Harassed Children and Family of Devil-Worship Cult Leader

NewsOK reports on a suit filed in an Oklahoma state court yesterday against Putnam (OK) school officials by the leader of a Devil-worshiping cult and his wife who contend that their children were mistreated in school because of their religion and that the family was subjected to false allegations of improper parenting.  Adam Daniels is dastur of the Dakhma of Angra Mainyu, which describes itself on its website as anti-Catholic and anti-Christian. It became known for the Black Mass that it sponsored in 2014.  The lawsuit, seeking $300,000 in damages, claims that the Daniels children were bullied and harassed in school by teachers and other students. It also contends that false reports by school officials to child welfare authorities led to 40 visits from Child Protective Services personnel.

Recent Prisoner Free Exercise Cases

In Chaparro v. Ducart, (9th Cir., Aug. 14, 2017), the 9th Circuit affirmed the dismissal of an inmate's complaint that he was removed from the chapel ducat list for failing to attend a chapel service.

In Rush v. Malin, 2017 U.S. Dist. LEXIS 126529 (SD NY, Aug. 9, 2017), a New York federal district court reinstated a claim against a prison chaplain for failing to submit the Eid ul-Fitr event packet for the Shi'a Muslim inmates in 2014.

In Robinson v. Cate, 2017 U.S. Dist. LEXIS 126557 (ED CA, Aug. 8, 2017), a California federal magistrate judge recommended dismissing as moot a Muslim inmate's religious diet claims because recent changes in regulations now allow him to opt for either a kosher of Halal-compliant diet.

In Thomas v. Bzoskie, 2017 U.S. Dist. LEXIS 129512 (D MN, Aug. 14, 2017), a Minnesota federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 130019, May 8, 2017) and dismissed a Muslim inmate's complaint that authorities refused to permit Muslim communal worship and refused to allow him to wear a kufi or keep a prayer rug or prayer oil in his cell.

In Rivera v. Michigan Department of Corrections, 2017 U.S. Dist. LEXIS 128973 (WD MI, Aug. 14, 2017), a Michigan federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 129768, July 13, 2017) and dismissed complaints by an inmate over refusal to allow mail from Moorish Science Temple of America-1928 Grand Body, and telling plaintiff to tear up his religious preference form listing that group.

In Dyson v. Federal Bureau of Prisons, 2017 U.S. Dist. LEXIS 130184 (D DC. Au. 15, 2017), a D.C. federal district court dismissed as no properly the subject of a habeas corpus action an inmate's complaint that he was forced to consume fluids and provide a urine sample while he was fasting for Ramadan.

In Carter v. Myers, 2017 U.S. Dist. LEXIS 130286 (D SC, Aug. 15, 2017), a South Carolina federal district court allowed plaintiff to move ahead with her claim for nominal damages and injunctive relief growing out of jail authorities requiring her to remove her hijab for her booking photo. The magistrate's recommendation in the case is at 2017 U.S. Dist. LEXIS 130581, July 5, 2017.

In Tanksley v. Litscher, 2017 U.S. Dist. LEXIS 130340 (WD WI, Aug. 15, 2017), a Wisconsin federal district court in a lengthy opinion upheld prison officials' refusal to allow an inmate serving a long sentence for sexual assault of a child to obtain Hermetic Order of the Golden Dawn  Initiatory Tarot cards because some of the cards depict nude human figures.

In Irvin v. James, 2017 U.S. Dist. LEXIS 130810 (ED CA, Aug. 15, 2017) a California federal magistrate judge recommended dismissing a list of claims by a Muslim inmate relating to denial of chapel access, denial of religious foods (including dates), denial of prayer oil, kufis and religious packages, and failure to hire a Muslim chaplain.

In Bynum v. Poole, 2017 U.S. Dist. LEXIS 131063 (MD NC, Aug. 17, 2017), a North Carolina federal magistrate judge recommended denying summary judgment to a Muslim inmate who complained about cancellation of a Jumah Service on one Friday.

Tolling Provision Applies While Priest Is Outside State On Orders of Church Superiors

In Commonwealth v. McCormick, 2017 Mass. App. Unpub. LEXIS 791 (MA App., Aug. 15, 2017), a Massachusetts state appeals court upheld the convictions of a Catholic priest on five counts of rape of a child.  The court rejected defendant's argument that the statute of limitations tolling provision violates the federal Establishment Clause and his free exercise rights under the Massachusetts Declaration of Rights. The state statute of limitations excludes from the computation of time under the limitations period any time during which the defendant is not "usually and publicly a resident" of Massachusetts.  Plaintiff was outside the state during periods in which he was working at a camp on the orders of his superiors in the Catholic church.

Australian Catholic Bishops React To Planned Plebiscite On Same-Sex Marriage

As reported earlier this month by CBC News, Australia's government is planning a mail survey beginning Sept. 12 of Australians on the issue of same-sex marriage. However it is facing a court challenge arguing that the government does not have authority to conduct this type of plebiscite without obtaining authority from Parliament.  Meanwhile the Sydney Morning Herald reported yesterday that Catholic bishops in Australia have threatened that if same-sex marriage is legalized, parish employees, including teachers in Catholic schools, who marry a same-sex partner may well be fired.

Recent Articles of Interest

From SSRN:

• Nicholas Aroney, Religious Authority in Public Spaces: The Challenge of Jurisdictional Pluralism, (August 11, 2017).
• John Infranca, (Communal) Life, (Religious) Liberty, and Property, Michigan State Law Review, (Forthcoming).
• Dwight G. Newman, Implications of the Ktunaxa Nation / Jumbo Valley Case for Religious Freedom Jurisprudence, (in Dwight Newman, ed., Religious Freedom and Communities (Toronto: LexisNexis, 2016)).
• Caroline Mala Corbin, 'Terrorists are Always Muslim But Never White': At the Intersection of Critical Race Theory and Propaganda, (Fordham Law Review, Forthcoming).
• Paul H. Robinson & Sarah M. Robinson, 1963 – Birmingham Church Bombing – Civil Rights, (In Tragedy, Outrage & Reform: Crimes that Changed Our World, (Paul H. Robinson & Sarah M. Robinson, eds., Forthcoming)).

Court Dismisses Church Trustee Challenges As Moot

In Johnson v. Barnes, (IN App., Aug. 17, 2017), an Indiana appellate court dismissed as moot a case in which the trial court had removed three trustees of the Pilgrim Baptist Church and ordered new elections. Those former trustees challenged the trial court's action in removing them.  The appeals court held that since new elections have been held, the choice of trustees by church members in those elections is controlling.

4,000 Faith Leaders Oppose Repeal of Johnson Amendment

As reported by Americans United, this week a letter signed by more than 4,000 faith leaders from all 50 states (full text) was sent to members of Congress urging them to keep the Johnson Amendment in the Internal Revenue Code.  That Amendment, which Donald Trump has promised to repeal, prohibits non-profits, including houses of worship, from supporting or opposing candidates in political elections. The letter says in part:

Faith leaders are called to speak truth to power, and we cannot do so if we are merely cogs in partisan political machines. The prophetic role of faith communities necessitates that we retain our independent voice.....

Changing the law to repeal or weaken the “Johnson Amendment” – the section of the tax code that prevents tax-exempt nonprofit organizations from endorsing or opposing candidates – would harm houses of worship, which are not identified or divided by partisan lines. Particularly in today’s political climate, engaging in partisan politics and issuing endorsements would be highly divisive and have a detrimental impact on congregational unity and civil discourse.

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.