NY Appeals Court Rules On Custody After Divorce of Hasdic Jewish Couple

In Weisberger v. Weisberger, (NY App., Aug. 16, 2017), a New York appellate court modified a trial court's custody order in a divorce proceeding.  At issue was the party's original agreement regarding the Jewish religious upbringing of their children. That agreement provided that the mother would raise the children in the "Hasidic practices of ultra Orthodoxy." The parties had divorced after the mother revealed that she was attracted to women rather than men.  When the mother changed the family's religious practices (and also began living with a transgender man), the trial court awarded the father full custody of the children.  The appeals court modified that order, returning custody to the mother with increased visitation rights for the father, and provided the father would have custody of the children during Jewish holidays.  It also ruled:

While we respect the parties' right to agree to raise their children in a chosen religion ... the weight of the evidence does not support the conclusion that it is in the children's best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares.... 

This is not to say that it would be in the children's best interests to become completely unmoored from the faith into which they were born and raised.... [I]t is in the children's best interests to continue to permit the father to exercise final decision-making authority over the children's education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices.... [W]e deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother's proposal ... to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so.... Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.

JTA reported on the decision in an article published this week. [Thanks to Rabbi Michael Simon for the lead.]

9th Circuit Affirms Enforceable Scope of Travel Ban

In State of Hawaii v. Trump, (9th Cir., Sept. 7, 2017), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's decision on the scope of President Trump's second travel ban executive order. The court affirmed the lower court's injunction barring enforcement of the Executive Order against

(1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.

Honolulu Star Advertiser has more on the decision.

Nominees For Federal Bench In Texas Have Religious Liberty Defense Background

Dallas News reports that among the 16 judgeship nominations announced by the White House yesterday are two nominations to Texas federal district courts of individuals with extensive backgrounds in issues of religious liberty.  Jeff Mateer, currently First assistant Attorney General of Texas, was previously general counsel and executive vice president of the First Liberty Institute. Matthew J. Kacsmaryk is currently Deputy General Counsel to First Liberty Institute.  First Liberty describes itself as "the largest legal organization in the nation dedicated exclusively to protecting religious liberty for all Americans."

Australia's Top Court Upholds Planned Mail Survey of Voters On Same-Sex Marriage

In Wilkie v. Commonwealth of Australia, (High Ct. Australia, Sept. 7, 2017), Australia's highest court unanimously upheld the government's plan to conduct a voluntary survey by mail of the country's voters on whether same-sex marriage should be legalized.  At issue in the case was whether the government acted properly when it used a law permitting expenditures which are urgent and unforeseen to fund the survey.  As reported by news.com.au:

Ballots with the question, “Should the law be changed to allow same-sex couples to marry?” will be sent to households across the nation on September 12....

If a majority of people vote in favour, a vote will then be held in parliament which [Prime Minister Malcolm] Turnbull says he expects will make same-sex marriage legal. If Australians vote no, Mr Turnbull has said the parliamentary vote will not proceed.

The postal survey was conceived after Australia's Senate voted against government sponsored legislation for a binding plebiscite. Interestingly, advocates of marriage equality were among those challenging the plebiscite, arguing that Parliament should legalize same-sex marriage without this preliminary vote. (Marriage Equality Information Sheet).  Law & Religion Australia last month had a lengthy post on the religious liberty implications of the substantive legislation that is being considered.

7th Circuit Nominee Questioned On Religious Beliefs and Judicial Duties

The Senate Judiciary Committee yesterday held hearings on the nominations of four federal judges and the nominee to head the Justice Department's Civil Rights Division. (Video of full hearings).  One of the nominees, Notre Dame Law Professor Amy Coney Barrett, tapped for a seat on the U.S. 7th Circuit Court of Appeals, faced extensive questioning stemming from a background report from the Alliance for Justice. That report focuses in part on a 1998 law review article titled Catholic Judges in Capital Cases that was co-authored by Barrett.  This led to several exchanges with senators on the role a judge's religious beliefs play in judicial decision making. Daily Caller reports on the hearing.

FLDS Leader Ordered To Pay $16M In Damages To Child Victim

Utah state trial court judge Keith Kelly on Tuesday ordered Warren Jeffs (who is now in prison) and the polygamous FLDS church that he heads to pay $4 million in compensatory damages and $12 million in punitive damages to Elissa Wall who, at age 14, was pressured to marry her 19 yer old cousin. As reported by the Salt Lake Tribune:

In his ruling, Kelly noted that Jeffs controlled the church and key aspects of Wall’s life. He arranged the marriage to Alan Steed over Wall’s objections and performed the ceremony. Jeffs also pressured Wall to have children with Steed. Miscarriages and a stillbirth followed.

6th Circuit En Banc Upholds Invocations Offered By County Commissioners

In Bormuth v. County of  Jackson, (6th Cir., Sept. 6, 2017),  the U.S. 6th Circuit Court of Appeals sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County, Michigan Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy.  Judge Griffin's majority opinion reasoned:

There is no support for [plaintiff's] granular view of legislative prayer. In this regard, neither Marsh nor Town of Greece restricts who may give prayers in order to be consistent with historical practice....

That the prayers reflect the individual Commissioners’ religious beliefs does not mean the Jackson County Board of Commissioners is “endorsing” a particular religion, Christianity or otherwise. For one, while all the Commissioners presumably believe in Jesus Christ, the faiths of Christianity are diverse, not monolithic. The Reformation of the Sixteenth Century spawned an explosion of Christian faiths. Many of those practicing these new Christian faiths sought religious freedom in America and found refuge from the tyranny inflicted by sectarian governments....

We do not know the religious faiths of the 2013-2014 Jackson County Commissioners. The nine “Christian” Commissioners may have included Roman Catholics, Southern Baptists, Mormons, Quakers, Episcopalians, Lutherans, Methodists, and others.

Judges Rogers and Sutton wrote concurring opinions.

Judge Moore's dissent argued:

In the case before us today, the majority is dangerously close to permitting exactly what Justice Alito said Town of Greece obviously does not permit—government officials instructing citizens to participate in sectarian prayer before commencing government proceedings. There is no daylight between polling place workers asking individuals to pray before casting their ballots, as in Justice Alito’s example, and county commissioners asking individuals to pray before participating in local government meetings, as actually happens in Jackson County. This similarity underscores why a tradition that protects the Town of Greece’s right to open its meetings with solemn and respectful prayers, which was targeted at legislators and offered by clergy or volunteers from a variety of faith traditions, does not protect Jackson County’s policy to restrict its legislative prayer practice to government officials themselves asking the public to participate in exclusively Christian prayer.

Judge White wrote a separate dissenting opinion. Courthouse News Service reports on the decision.

New Report on America's Changing Religious Identity

The Public Religion Research Institute yesterday released its report on America's Changing Religious Identity.  According to the Executive Summary:

The American religious landscape is undergoing a dramatic transformation. White Christians, once the dominant religious group in the U.S., now account for fewer than half of all adults living in the country. Today, fewer than half of all states are majority white Christian. As recently as 2007, 39 states had majority white Christian populations. These are two of the major findings from this report, which is based on findings from PRRI’s 2016 American Values Atlas, the single largest survey of American religious and denominational identity ever conducted. This landmark report is based on a sample of more than 101,000 Americans from all 50 states and includes detailed information about their religious affiliation, denominational ties, political affiliation, and other important demographic attributes.

Among the other findings of the Report:

White Christians have become a minority in the Democratic Party. Fewer than one in three (29%) Democrats today are white Christian, compared to half (50%) one decade earlier. Only 14% of young Democrats (age 18 to 29) identify as white Christian. Forty percent identify as religiously unaffiliated.

White evangelical Protestants remain the dominant religious force in the GOP. More than one-third (35%) of all Republicans identify as white evangelical Protestant, a proportion that has remained roughly stable over the past decade. Roughly three-quarters (73%) of Republicans belong to a white Christian religious group.

RLUIPA Suits Over Mosque Construction Are Settled

The Justice Department announced yesterday that a settlement agreement (full text) has been reached in United States v. Bensalem Township, Pennsylvania, as well as in a private suit involving the same underlying facts. In the  suit, the Justice Department alleged that the township violated RLUIPA in denying a zoning variance to permit Bensalem Masjid to construct a mosque on property near a commercial area. (See prior posting.)  The agreements call for approval of use of the property and for the Township to amend its zoning ordinances so they are compliant with RLUIPA. Bucks County Courier Times reports on the settlement.

Jewish Woman Sues Restaurant Over Bacon In Veggie Omelet

Detroit Free Press reports that a lawsuit was filed last week in a Michigan state trial court against a Detroit area Denny's restaurant for including bacon in a vegetarian omelet.  Plaintiff Angela Montgomery is a practicing Jew who for religious reasons does not eat pork products.  Restaurant personnel had apologized to Montgomery, telling her that this was a mistake because the bacon container was next to the containers of vegetables.  A similar lawsuit was filed Aug. 22 by a Yemeni-American Muslim couple  against a Detroit area KFC that had mistakenly included bacon on their chicken sandwiches.

Churches Challenge FEMA's Bar On Disaster Aid To Houses of Worship

This week three Texas churches that suffered significant damage from Hurricane Harvey filed suit against FEMA, challenging its policy that precludes houses of worship from receiving federal disaster assistance aid. The complaint (full text) in Harvest Family Church v. Federal Emergency Management Agency, (SD TX, filed 9/4/2017), relies particularly on the U.S. Supreme Court's recent Trinity Lutheran Church decision in claiming that FEMA's policy unconstitutionally discriminates against churches solely because of their religious status.  Plaintiffs contend:

Were the Churches not religious, their prohibited “worship” services would instead be eligible as “social activities to pursue items of mutual interest”; the impermissible “religious instruction” during religious services would be permissible as “educational enrichment activity”; children’s church and women’s Bible study groups would qualify as a “service or activity intended to serve a specific group of individuals”; and meetings between the clergy and other church leaders would be a “community board meeting.”

Becket issued a press release announcing the filing of the lawsuit.

UPDATE: In a tweet on Friday, President Trump said: "Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others)."

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.