Christian Church Heads In Jerusalem Protest Two Government Actions

In Israel this week, the heads of the major Christian denominations in the country-- Greek Orthodox, Armenian Orthodox, Latin Catholic, and Ethiopian Orthodox-- signed a joint statement (full text) protesting two recent actions by the Israeli government, calling them "a systematic attempt to undermine the integrity of the Holy City of Jerusalem and the Holy Land, and to weaken the Christian presence."  As explained by the Jerusalem Post:

The first is a Jerusalem District Court ruling from last month saying that the purchase of three major compounds adjacent to Jaffa Gate in the Old City were carried out legally, and as a result, were transferred from the Greek-Orthodox church to the rightwing NGO Ateret Kohanim Yeshiva....

The second issue is a bill proposed by the Kulanu MK Rachel Azaria which is signed by 39 other MKs across the political spectrum, that seeks to nationalize lands owned by churches in west Jerusalem and sold to private entrepreneurs....

Churches leased the disputed properties in west Jerusalem to the Jewish National Fund, mainly in the 1950s, parts of which ... [were then] sold to residents living there. In the next 20-50 years the lease periods will end, and the churches have reportedly sold parcels of the land to private entrepreneurs – a deal that ... creates future uncertainty....

The bill proposes to compensate all sides that would be harmed from the nationalizing of land.

Recent Articles of Interest

From SSRN:

• David Herzig & Samuel D. Brunson, A Diachronic Approach to Bob Jones: Religious Tax Exemptions after Obergefell, (Indiana Law Journal, Forthcoming).
• Arif A. Jamal, Considering Freedom of Religion in a Post-Secular Context: Hapless or Hopeful?, (Oxford Journal of Law and Religion, Forthcoming).
• Ellen P. Aprill, Religious Organizations, Refuge for Undocumented Immigrants, and Tax Exemption, (Loyola Law School, Los Angeles Legal Studies Research Paper No. 2017-28 (2017).
• Carlo A. Pedrioli, Pope Francis and the Limits of Freedom of Expression, (Comparative Perspectives on Freedom of Expression 197 (Russell L. Weaver, Steven I. Friedland & Mark D. Cole eds., 2017)).
• Steven W. Bender, The Teachings of Pope Francis Symposium: Toward a Common Good for Our Common Home, (Seattle University Law Review, Vol. 40, No. 1167, 2017).
• Rebecca Ruth Gould, Punishing Violent Thoughts: Islamic Dissent and Thoreauvian Disobedience in Post-9/11 America, (Journal of American Studies, Forthcoming).

From SSRN (Non-US Law):

• Jeroen Temperman, The European Convention on Human Rights & Parental Rights in Relation to Denominational Schooling, (11:2-3 Religion & Human Rights: An International Journal (2017), pp. 142–152).
• Benjamin L. Berger, Freedom of Religion, (Oxford Handbook of the Canadian Constitution, Nathalie Des Rosiers, Patrick Macklem and Peter Oliver, eds, Oxford: Oxford University Press, 2017, Forthcoming).
• Sylvia Tamale, Controlling Women’s Fertility in Uganda, (International Journal on Human Rights, SUR 24, Vol. 13, No. 24, 117 - 128, 2016).
• Diya Uberoi & Beatriz Galli, Refusing Reproductive Health Services on Grounds of Conscience in Latin America, (December 10, 2016).
• Shalu Nigam, Fighting for the Justice in the Patriarchal Courts, (August 29, 2017).

From SmartCILP:

• Barbara Massie, Examining the Foundations: Comparing Islamic Law and the Common Law of the United States,11 Liberty University Law Review 525-557 (2016).

Court Upholds California Requirement That Health Plans Cover Abortions

In Foothill Church v. Rouillard, (ED CA, Sept. 1, 2017), a California federal district court upheld against a free exercise challenge letters from the California Department of Managed Health Care requiring private health insurers to remove all limitations on or exclusions of abortion services from their health care policies.  Three churches sued arguing that this prevents them from providing their employees with health insurance that is consistent with their Christian teachings.  The court in dismissing plaintiffs' amended complaint held, however, that the Department's letters were neutral and generally applicable, and thus consistent with the free exercise clause.  Plaintiffs also alleged that the Department had granted an exception to one health care plan, allowing it to exclude coverage for abortion except in the case of rape or incest, but has not granted an exception for a policy that excludes abortion coverage in all cases. The court said, however, that plaintiffs did not allege that a plan with total exclusions had been submitted, or that an exemption for it had been rejected. WND has additional background. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Niederberger v. Guyll, 2017 U.S. Dist. LEXIS 135552 (WD AR, Aug. 24, 2017), an Arkansas federal district court dismissed an inmate's complaint about problems with this kosher meals.

In Troutman v. Miami Correctional Facility, 2017 U.S. Dist. LEXIS 136753 (ND IN, Aug. 25, 2017), an Indiana federal district court allowed a Muslim inmate to move ahead with complaints that he was not permitted to attend Friday worship services after the end of his work shift, that his firing from his prison job was motivated by religious and racial animus, and with certain retaliation claims.

In Sears v. Thomas, 2017 U.S. Dist. LEXIS 137998 (SD FL, Aug. 25, 2017), a Florida federal magistrate judge recommended dismissing an inmate's complaint that he was not permitted to keep a chain and cross purchased from a non-approved vendor.

In Diaz v. Wall, 2017 U.S. Dist. LEXIS 139421 (D RI, July 10, 2017), a Rhode Island federal magistrate judge recommended dismissing an inmate's complaint that he was not allowed to attend religious services while in segregation for narcotics trafficking or while in High Security.

In Williams v. New York State Office of Mental Health, 2017 U.S. Dist. LEXIS 140151 (ED NY, Aug. 29, 2017), a New York federal magistrate judge recommended dismissing complaints by plaintiff, who had been committed to a psychiatric center, that defendants interfered with exercise of his faith as an Orthodox Jew practicing holostic medicine, including by medication injections and refusing to allow him to attend worship services.

In Meeks v. Sorsi, 2017 U.S. Dist. LEXIS 140721 (D NV,Aug. 31, 2017), a Nevada federal district court allowed an inmate to move ahead with his claim that defendant refused to open cell doors and the activity room for early Ramadan prayer. Defendants argued that plaintiff had changed his religion from Muslim to Moorish Science Temple of America.

In Mares v. LePage, 2017 U.S. Dist. LEXIS 140796 (D CO, Aug. 31, 2017), a Colorado federal magistrate judge recommended dismissing because of pleading defects an inmate's complaint regarding impediments to his changing his religion to Judaism and receiving a kosher diet.

In Fletcher v. United States, 2017 U.S. Dist. LEXIS 141932 (D AZ, Aug. 30, 2017), an Arizona federal district court dismissed a complaint by an inmate who was a member of the Asatru religion that his right to a religious fast and to use ceremonial grounds were impeded.

In Washington v. Gilmore, 2017 U.S. Dist. LEXIS 142055 (WD PA, Aug. 31, 2017), a Pennsylvania federal magistrate judge recommended dismissing an inmate's claims of denial of access to religious literature. UPDATE: The court adopted the magistrate's recommendation at 2017 U.S. Dist. LEXIS 150754 (Sept. 18, 2017).

Civil Rights Suit By Catholic School Principal Dismissed Under Ministerial Exception Doctrine

In Nolen v. Diocese of Birmingham in Alabama, (ND AL, Sept. 1, 2017), an Alabama federal district court invoked the ministerial exception doctrine to dismiss a suit by a former principal of a Catholic elementary school who was fired from her position.  Plaintiff claimed she was fired for protecting Hispanic students and families from racial discrimination. Defendant claimed she was fired for embezzling funds.  After dismissing plaintiff's civil rights and breach of contract claims under the ministerial exception doctrine, the court dismissed her remaining state law defamation and interference with contract claims without prejudice so they could be refiled in state court.

Wedding Website Designer Has Standing To Challenge One of Colorado's Civil Rights Laws

In 303 Creative, LLC v. Elenis, (D CO, Sept. 1, 2017), a website designer challenged the constitutionality of two anti-discrimination provisions of Colorado law that protect, in part, against discrimination on the basis of sexual orientation.  One provision prohibits any place of public accommodation from withholding services on the basis of sexual orientation.  The second prohibits publishing of any communication that indicates services will be withheld on the basis of sexual orientation.  Plaintiff wants to promote and create wedding websites, but, because of her religious beliefs, not for same-sex couples. A Colorado federal district court held that plaintiff has standing to challenge the prohibition on publishing discriminatory communications since she plans to post a statement indicating that she will not create websites that violate her religious beliefs. However she does not have standing to challenge the ban on withholding services because a number of steps would need to occur before any enforcement of that provision against her would become likely.  The court also postponed any ruling on the merits pending the U.S. Supreme Court's decision on a similar issue in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. ADF issued a press release announcing the decision.

Trump Declares Sept. 3 As National Day of Prayer For Hurricane Victims

President Trump yesterday issued a Proclamation (full text) declaring Sept. 3 as a "National Day of Prayer for the Victims of Hurricane Harvey and for our National Response and Recovery Efforts." The Proclamation reads in part:

As response and recovery efforts continue, and as Americans provide much needed relief to the people of Texas and Louisiana, we are reminded of Scripture's promise that "God is our refuge and strength, a very present help in trouble."  Melania and I are grateful to everyone devoting time, effort, and resources to the ongoing response, recovery, and rebuilding efforts.  We invite all Americans to join us as we continue to pray for those who have lost family members or friends, and for those who are suffering in this time of crisis.

New Illinois Law Creates Scholarship Tax Credit Program That Includes Religious Schools

As reported by DNA Info,  yesterday, Illinois Gov. Bruce Rauner signed SB 1947 (full text), a law overhauling education funding in the state. The bill includes provisions for up to $75 million in tax credits for a Scholarship Tax Credit Program described by America magazine:

The program works by giving individuals or corporations who donate to scholarship-granting organizations a 75 percent tax credit on donations, worth up to $750,000. Under the law, up to $75 million in credits will be granted annually starting next fiscal year. The program will expire after five years unless lawmakers extend it.

Proponents say the program will help to provide scholarships for 6,000 to 10,000 students in religious and other private schools statewide. These scholarships must go to households with an annual income below 300 percent of the federal poverty level, or about $73,000 for a family of four.

[Thanks to Blog From the Capital for the lead.] 

Challenge To First Travel Ban Is Settled

A Settlement Agreement (full text) has been reached in Darweesh v. Trump, (ED NY, Aug. 31, 2017), one of the challenges to President Trump's now-superseded first travel ban.  As described by the New York Times:

Under the settlement agreement, the federal government is required to identify and send a letter to every individual who was improperly barred from entering the country under the original travel ban, providing a list of free legal services organizations that can help recipients obtain visas or other entry documents. Approval is not guaranteed, but the government agreed to process their applications in good faith.

Illinois Creates Muslim American Advisory Council

Last week, Illinois Gov. Bruce Rauner signed the Illinois Muslim American Advisory Council Act (full text).  The law creates a 21-member Council whose purpose is to advise the Governor and state legislature

on policy issues impacting Muslim Americans and immigrants; to advance the role and civic participation of Muslim Americans in this State; to enhance trade and cooperation between Muslim-majority countries and this State; and to build relationships with and disseminate information to, in cooperation with State agencies, boards, and commissions, Muslim American and immigrant communities across this State.

Texas Governor Declares Day of Prayer In Aftermath of Hurricane

In response to Hurricane Harvey and its aftermath, Texas Governor Greg Abbott yesterday issued a Proclamation (full text) declaring Sunday, Sept. 3 as a Day of Prayer in Texas.  The Proclamation reads in part:

I urge Texans of all faiths and religious traditions and backgrounds to offer prayers on that day for the safety of our first responders, public safety officers, and military personnel, healing of individuals, rebuilding of communities and the restoration of the entire region struck by this disaster.

Church, Not Town, Owns Cemetery

In First Congregational Church of Harwich v. Eldredge, (MA Land Ct., Aug. 18, 2017), the Massachusetts Land Court held that the First Congregational Church of Harwich rather than the Town of Harwich has title to a cemetery adjacent to the Church and also has title to the Memorial Garden in which cremated remains of Church member families are buried. The litigation was filed when the Church objected to the Town's plans to move to another area of the cemetery the cremated remains that are now buried above unmarked and unknown graves.  The court said in part:

[L]ike the Church, the Town and the Cemetery Commission are entrusted to honor the dead. They have a special duty to honor the remains of those deceased whose descendants can no longer be found. Their authority does not extend to the power to order the existing cremains disinterred, but they are authorized to care for and preserve the area of the Memorial Garden under which the unidentified graves are located. The Cemetery Commission is permitted to take actions necessary for the preservation of these grave sites and to ensure that they are not further disturbed, including the power to bar any further interring of cremains in the Memorial Garden directly over the unmarked graves. The Church may continue to inter cremains in other areas of the Cemetery over which there are no ancient burial grounds.

Cape Cod Chronicle has a more extensive report on the decision.

West Virginia County Settles Suit By Lesbian Couple Who Were Harassed By Clerk

Americans United announced yesterday that Gilmer County, West Virginia has agreed to settle a lawsuit brought by a lesbian couple who were harassed by a county clerk when they applied for a marriage license. Deputy Clerk Debbie Allen told the couple that they were an abomination to God. (See prior posting.) Under the settlement, the county apologized to the couple and issued a public statement admitting wrongdoing.  The County has also paid damages and has agreed to employee training to avoid future abuse.

Mattis Will Take Time Implementing Trump's Policy On Transgenders In Military

Yesterday Secretary of Defense Jim Mattis issued a Statement (full text) on the manner in which he intends to implement President Trump's recent Memorandum barring enlistment of transgender individuals in the military and calling for a study of how to deal with transgender individuals currently serving. Mattis said in part:

Our focus must always be on what is best for the military’s combat effectiveness leading to victory on the battlefield.  To that end, I will establish a panel of experts serving within the Departments of Defense and Homeland Security to provide advice and recommendations on the implementation of the president’s direction.  Panel members will bring mature experience, most notably in combat and deployed operations, and seasoned judgment to this task.  The panel will assemble and thoroughly analyze all pertinent data, quantifiable and non-quantifiable.... 

Once the panel reports its recommendations and following my consultation with the secretary of Homeland Security, I will provide my advice to the president concerning implementation of his policy direction.  In the interim, current policy with respect to currently serving members will remain in place. 

Preliminary Injunction Denied To Students Opposed To Transgender Bathroom Access Policy

In Doe v. Boyertown Area School District, (ED PA, Aug. 25, 2017), a Pennsylvania federal district court refused to issue a preliminary injunction to bar a school district from continuing its year-old practice of allowing transgender students to use the bathrooms and locker rooms corresponding to their gender identity. Plaintiffs are students who claim that their right to privacy, as well as Title IX, are violated by the school's policy. According to the court:

At bottom, the plaintiffs are opposed to the mere presence of transgender students in locker rooms or bathrooms with them because they designate them as members of the opposite sex and note that, inter alia, society has historically separated bathrooms and locker rooms on the basis of biological sex to preserve the privacy of individuals from members of the opposite biological sex.

In a 142-page opinion the court held that plaintiffs had no shown that they are likely to succeed on the merits, saying in part:

The plaintiffs have not identified and this court has not located any court that has recognized a constitutional right of privacy as broadly defined by the plaintiffs.... 

WFMZ-TV News reports that an appeal is planned.

8th Circuit: OK To Ban Religious Leafleting On Plaza of Sports Arena

In Ball v. City of Lincoln, Nebraska, (8th Cir., Aug. 29, 2017), the U.S. 8th Circuit Court of Appeals held that the city did not infringe the free speech rights of a city resident who insisted on handing out Christian religious literature in the plaza area of a municipal sports arena to those attending high school basketball tournaments. A majority of the 3-judge panel held that the entire plaza area is a non-public forum, and the policy barring leafleting in that area is reasonable. Judge Melloy dissented in part, concluding that a portion of the plaza area is a traditional public forum. Lincoln Journal-Star reports on the decision.

An Unusual Prisoner Case Finds NGE Should Be Held To Be A Religion

In a somewhat surprising prisoner free exercise decision this week, a Virginia federal district court held that the Virginia Department of Corrections violated RLUIPA and the First Amendment when it refused to recognize the Nations of Gods and Earths (NGE) as a religion and instead designated it a gang or "Security Threat Group."  In Coward v. Robinson, (ED VA, Aug. 28, 2017), the court in a 47-page opinion citing what was clearly an extensive evidentiary record concluded that "there is insufficient evidence in this record to conclude that the NGE is a violent, racially supremacist gang."  It went on: "Even if the Department could show that designating the NGE as a gang subject to a zero
tolerance policy serves a compelling interest, it cannot demonstrate that its policies are the least restrictive means of furthering that interest."

A number of things make this case interesting. It was initially filed in 2010. Appeals in the case (sub. nom. Coward v. Jabe) wound their way up to the 4th Circuit three separate times.  In one of its opinions, the 4th Circuit held that even though it had held NGE is not a religion in an unrelated 2012 case, that decision was based on the evidence at trial, and did not mean that NGE would not found to be a religion in other cases.  Finally, unlike the vast majority of prisoner cases which are argued pro se, here plaintiff in the proceedings leading to this week's decision had high power counsel.  Plaintiff was represented by two lawyers from Kirkland & Ellis, one of whom had previously been a law clerk for Supreme Court Chief Justice John Roberts.

7th Circuit: Illinois May Apply Education Laws To Bible Colleges

In Illinois Bible Colleges Association v. Anderson, (7th Cir., Aug. 29, 2017), the U.S. 7th Circuit Court of Appeals rejected challenges to three Illinois statutes that require all colleges to obtain state approval before they may issue degrees.  Plaintiffs claimed that applying these statutes to Bible Colleges violates their 1st and 14th Amendment rights. The Court disagreed, saying;

[Plaintiffs] first argue the Illinois regulations violate the Establishment Clause by entangling the government with their religious operations. However, the plaintiffs have not sought ... approval from the State under the applicable statutes. Therefore, there is no basis to believe that the regulations would infringe on their religious beliefs or practices or would unnecessarily entangle the government in religion.... Likewise, the plaintiffs’ Free Exercise claim fails because the statutes are neutral laws of general application and apply equally to secular and religious institutions. The plaintiffs’ Equal Protection claim fares no better: While the state statutes exempt older educational institutions..., when no improper discrimination is involved, the government may include a grandfather clause in legislation without violating the guarantee of Equal Protection. Finally, the student-plaintiff alleges a violation of his right to practice a profession of his choice. But the regulations do not impact that choice. Rather, they merely determine whether he may obtain a degree from specific post-secondary institutions.

French Court Says School Must Offer Muslim Children An Alternative To Pork At Lunch

According to The Guardian yesterday, in France a trial court judge has told local officials that they must re-institute a policy of offering an alternative to pork meals for school lunches. A court in Dijon told officials in Chalon-sur-Saône that a refusal to offer an alternative for Muslim children is not "in keeping with the spirit of the international convention on the rights of children" nor "in the interests of the children." The the mayor of Chalon-sur-Saône, a member of the right wing Les Républicains party, argued that by requiring all children to eat together, the city was upholding the French Republic’s principle of laïcité  (secularism). The city plans an appeal.

Religious Freedom and Holocaust Envoys Escape State Department Cuts

In a move applauded by Senate Foreign Relations Chairman Bob Corker, Secretary of State Rex Tillerson has notified the Senate that he plans to pare down the number of Special Envoys in the State Department. According to CNN, Tillerson will eliminate or downgrade as many as 36 of the nearly 70 special envoy spots. However three special envoy offices will be expanded: those dealing with religious freedom, Holocaust issues and HIV/AIDS.

UPDATE: Here is the full text of Sec. Tillerson's letter to Sen. Corker. It details some of the changes as follows:

The Ambassador-at-Large for International Religious Freedom (IRF) will continue to be an ambassador-level position confirmed by the U.S. Senate, and will be organized under and report to the Under Secretary for Civilian Security, Democracy, and Human Rights (J). Additionally, IRF will assume the functions and staff of the U.S. Special Representative for Religion and Global Affairs, U.S. Special Representative to Muslim Communities, U.S. Special Envoy to the Organization of Islamic Cooperation, and Special Advisor for Religious Minorities in the Near East and South/Central Asia.