Brazil's Supreme Court Upholds Denominational Religious Classes In Public Schools

Brazil's Constitution, Article 210, provides: "Minimum curricula shall be established for elementary schools.... The teaching of religion is optional and shall be offered during the regular school hours of public elementary schools...." As reported by Folha de S. Paulo and La Croix, on Wednesday, by a 6-5 vote, Brazil's Supreme Court held that this allows teachers in public schools to promote their specific religious beliefs, so long as the classes are optional.  The dissenters argued that religion classes in public elementary schools must be non-confessional, that is, not connected to a specific religion.  The case grew out of a challenge by the Prosecutor General's Office to a 2008 Agreement between Brazil and the Vatican allowing multi-confessional religious instruction in Brazil's public schools.

District Court Nominee's Prior Speeches Create Concern

As previously reported, earlier this month President Trump nominated Texas Assistant Attorney General Jeff Mateer for a federal district court judgeship in Texas.  Mateer was previously general counsel and executive vice president of the First Liberty Institute.  Now, according to Wednesday's San Antonio Express-News, Texas Senator John Cornyn is expressing concern over the nomination after CNN discovered speeches in which Mateer referred to transgender children as part of "Satan’s plan" and defended the use of gay "conversion therapy."

Trump Nominates Religious Liberty Expert For Seat On 5th Circuit

Yesterday President Trump announced (among other nominations) the nomination of Kyle Duncan for a seat on the U.S. 5th Circuit Court of Appeals. Much of Duncan's career has been devoted to religious liberty concerns.  Reporting on the nomination, the Baton Rouge Advocate calls Duncan a "conservative Christian legal warrior."

An unusually deep record of Duncan's views on First Amendment issues is available.  From 2004-2008, he was an Assistant Professor of Law at the University of Mississippi where he taught courses on constitutional law, church-state relations, and free speech. (Bio.)  Duncan's publications include:

• Secularism's Laws: State Blaine Amendments and Religious Persecution, 72 Fordham L. Rev. 493 (2003).
• Bringing Scalia's Decalogue Dissent Down from the Mountain, 2007 Utah L. Rev. 287 [LEXIS link].
• Prosecution Responses To Internet Victimization: Child Pornography and First Amendment Standards, 76 Miss. L. J. 677 (2007).
• Subsidiarity and Religious Establishments in the United States Constitution, 52 Vill. L. Rev. 67 (2007).
• Misunderstanding Freedom from Religion: Two Cents on Madison's Three Pence, 9 Nev. L.J. 32 (2008).

From 2012- 2014 Duncan served as general counsel for the Becket Fund for Religious Liberty.  He was lead counsel in the Supreme Court case of Hobby Lobby Stores v. Burwell which concluded that the Affordable Care Act's contraceptive coverage mandate violates religious rights of objecting small businesses under RFRA.  Here is the merits brief that Duncan's team filed in the case.

Now a partner in the Washington, D.C. law firm of Scherr Duncan, his web page includes links to nearly a dozen news interviews and blog posts in which Duncan talks about religious liberty issues.

EEOC Files Two Religious Accommodation Suits

On Wednesday the EEOC announced the filing of two separate religious discrimination lawsuits.  One suit (press release) was brought against the Sacramento, California-based supermarket chain Raley's for refusing to continue accommodating the religious needs of a Jehovah's Witness employee. The employee was fired after insisting that she needed to attend religious meetings on Wednesday evenings and Sunday afternoons.

In a second suit (press release), the EEOC sued  the Florida-based Publix Supermarket chain for refusing to accommodate a Ratafarian new hire's religious need to wear his hair in dreadlocks.

Nuns Lose Challenge To Pipeline

In Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order.  The nuns say their religious beliefs require them to protect and preserve creation.  The court held that the Natural Gas Act sets out a procedure for challenging a FERC grant of a certificate to build an interstate pipeline.  Plaintiffs here did not follow those procedures which require first that challengers request a rehearing from the agency, and then review by the Court of Appeals.  The court concluded that the Religious Freedom Restoration Act does not supersede the exclusive jurisdiction provision of the Natural Gas Act. Lancaster Online reports on the decision. (See prior related posting.)

Controversy Brews Over Holiday Display of Pentagram Monument

Controversy over December holiday displays has begun early this year in Boca Raton, Florida.  A city ordinance allows residents to put up unattended displays during the holiday season in Sanborn Square, a city park.  According to yesterday's Christian Times, a local teacher has filed an application to set up a 300-pound metal Pentagram honoring Satan this December.  The display would include captions such as "In Satan We Trust," "One Nation under Antichrist" and "May the Children Hail Satan."  The teacher also wants to set up a Freedom From Religion Nativity Display.  A local pastor has reacted by saying: "It’s evil, it’s the essence of evil. I will take the responsibility for taking the sledgehammer and knocking it down."

Roy Moore Wins Republican Runoff In Alabama

Former Alabama Supreme Court Chief Justice Roy Moore won yesterday's Alabama Republican U.S. Senate primary runoff, prevailing over Luther Strange who has served in the U.S. Senate for six months.  Moore won by a vote of 55% to 45%. (Official results).

As reported by CNN:

Moore now faces Democratic nominee Doug Jones in a December general election in the race to replace Attorney General Jeff Sessions.

Moore's win Tuesday night will thrust his long history of homophobic and racially tinged remarks into the spotlight.

He has campaigned on a platform of placing Christianity at the center of public life. In 2003, Moore was removed as state Supreme Court chief justice for refusing to take down a Ten Commandments monument. He was re-elected to the job, and then ousted again in 2016, when he refused to follow the US Supreme Court's ruling legalizing same-sex marriage.

Though Alabama is a solidly red state, Democrats hope Jones, a former federal prosecutor who rose to prominence by leading the government's case against two perpetrators of the 16th Street Baptist Church bombing, can make the race competitive.

Here is additional background on Moore from Wikipedia.

Moore Tweeted from his victory rally: "There's one person you don't see on this stage that's done more for my campaign than anybody, and that's almighty God."  In a second Tweet, he added: "We have to return to the acknowledgment of God, and the United States Constitution."

Saudi Decree Will Allow Women To Obtain Divers Licenses

Saudi Arabia's King Salman yesterday issued a Royal Decree (full text) which for the first time allows the issuance of drivers licenses to women.  As reported by Reuters, Saudi Arabia has been the only country that bars women from driving.  The new rules will be implemented by June 2018 after a high-level committee of ministries recommends how to implement the changes. The decree reads in part:

We also refer to what the majority of the Council of Senior Scholars agreed on, which is that the original Islamic ruling in regards to women driving is to allow it, and that those who have opposed it have done so based on excuses that are baseless and have no predominance of thought. The scholars see no reason not to allow women to drive as long as there are legal and regulatory guarantees to avoid the pretexts (that those against women driving had in mind), even if they are unlikely to happen.

And because the country - with the help of God - is the guardian of Islamic values, it considers preserving those values one of its priorities, in this matter and in others, and will not hesitate to take any means to ensure the security and safety of its society.

Suit Charges School With Retaliating Against Student Who Challenged Religious Viewpoints

Denver Post reported yesterday on a federal lawsuit filed by a former Delta County, Colorado High School student who contends that her grades were reduced and her college applications undercut because of her opposition to injection of religious views into classes and school assemblies. The lawsuit claims:

Defendants retaliated upon plaintiff Fisk, threatened, punished and censored her, for expressing her opinions on religion, abortion, sex education, and drug education in an attempt to chill, deter and restrict (her) from freely expressing her opinions.

EEOC Sues Over Dress Code Accommodation

EEOC announced Monday that it has filed suit against Georgia Blue, a Mississippi- based chain of restaurants which refused to grant an employee a religious accommodation to allow her to wear a blue skirt instead of the required blue jeans.  A job offer to Kaetoya Watkins to work as a restaurant server was rescinded when she told the company that her Apostolic Pentecostal religious belief requires her to wear only skirts or dresses.  AP reports on the lawsuit.

Today Is "See You At the Pole" Day

Today is "See You At the Pole" day in public and private schools in the U.S. and around the world.  The SYAP website describes the event:

All around the globe, in every time zone, students will be gathering at their flagpoles, praying for their school, friends, families, churches, and communities. SEE YOU AT THE POLE is a day committed to global unity in Christ and prayer for your generation.

Christian Post says that 1 million students will participate in the event this year, which is held before school (7:00 am local time).

Pastor's Suit Against VA Over Prayer Content Dismissed For Lack of Standing

In Youngblood v. United States Department of Veterans Affairs, 2017 U.S. Dist. LEXIS 156522 (MD FL, Sept. 25, 2017), a Florida federal district court dismissed for lack of standing a suit by a Baptist pastor who feared that VA officials would not allow him to offer prayers on VA property consistent with his religious beliefs.  At a memorial ceremony, Pastor Gene Youngblood offered an invocation specifically criticizing former secretary of State Hilary Clinton.  This led to a complaint that Youngblood had violated VA regulations that bar demonstrations or services on VA property that support or oppose current U.S. government policy. In dismissing Youngblood's suit seeking an injunction to prevent his future exclusion from VA property, the court said in part:

In short, the Complaint claims injury because Defendants will consider Pastor Youngblood's past noncompliance in determining whether to allow future ceremonies on VA property. While Pastor Youngblood claims the "threat of future exclusion of Plaintiff from VA property is both great and immediate" he fails to plead specific facts as to how that is so. Instead, Pastor Youngblood sets forth general and vague allegations regarding injury...

Today Is Alabama Senate Primary Runoff Between Moore and Strange

Today in Alabama, Republican voters go to the polls in the runoff U.S. Senate primary race between incumbent Luther Strange and former Alabama Supreme Court Chief Justice Roy Moore.  Moore is known for his high profile battles in which he refused to remove a Ten Commandments monument from the Alabama Supreme Court building and his defiance of the U.S. Supreme Court's same-sex marriage ruling.  Al.com reports that in his final campaign rally last night, Moore told a large crowd: "For whatever reason, God has put me in this election at this time and all of the nation is watching."

Trump Issues New, More Targeted Version of Travel Ban

President Trump yesterday issued a Proclamation (full text) (press release) (White House background document) setting out a more targeted version of his travel ban.  The travel restrictions in the prior ban expired yesterday, while the refugee restrictions in the prior ban extend to Oct. 24.  The new ban focuses around a "baseline for the kinds of information required from foreign governments" to allow U.S. vetting of immigrants and non-immigrants. The Administration determined that 7 nations fail to meet these standards: Chad, Iran, Libya, North Korea, Syria, Venezuela, and Yemen, and travel to the U.S. by nationals of those countries is largely banned. (Though restrictions on Venezuela are limited to travel here by government officials.) The Administration also found that Iraq does not meet the baseline standards, but excludes its nationals from new restrictions. A ban is placed on admission of immigrants from Somalia, even though it technically meets the baseline criteria. The Proclamation separately sets out the scope of the restrictions on each of the covered nations, tailoring each to the individual situations. (Fact Sheet; FAQs).

As reported by Reuters, these developments are likely to have an effect on the challenges to the prior travel ban pending in the courts.  The Supreme Court is scheduled to hear oral arguments on those challenges on Oct. 10. (See prior posting.) Yesterday the Administration asked the Supreme Court to consider receiving additional briefs to address the effects of the new Proclamation on the pending cases. Washington Post has additional reporting on the new Presidential Proclamation.

UPDATE: In an Order (full text) dated Sept. 25, the U.S. Supreme Court ruled:

The parties are directed to file letter briefs addressing whether, or to what extent, the Proclamation issued on September 24, 2017, may render cases No. 16-1436 and 16-1540 moot. The  parties should also address whether, or to what extent, the  scheduled expiration of Sections 6(a) and 6(b) of Executive Order No. 13780 may render those aspects of case No. 16-1540 moot.

EEOC Sues Doctor Over Required Bible Sessions For Employees

The EEOC last week filed suit against a Texas physician who required employees to attend daily meetings involving Bible study and the application of religious principles to employees' personal lives.  The complaint (full text) in EEOC v. Shepherd, (ND TX, filed 9/20/2017) seeks relief on behalf of 4 employees who were dismissed over objections to the meetings or over personal lifestyles. Courthouse News Service reports on the lawsuit.

California Lions Club Sues To Control Cross In Park

According to the East Bay Times, on Sept. 11 the Albany, California Lion's Club filed suit in federal court against the city and several city officials in a dispute involving a 20-foot cross in the city's Albany Hill Park. The cross was constructed in 1971 on privately-owned land.  It was transferred to the city in 1973 as part of a controversial land deal in which the city created Albany Hill Park. Before the transfer to the city, the Lion's Club was granted an easement to allow it to maintain the cross. In December 2015, the city cut power to the cross, contending that a utility line running to it was unsafe. It cut power again in 2016 until the local utility PG&E took responsibility for the power line to assure that the cross would be lit for the Christmas and Easter seasons. According to the Times report, the suit:

asks for permanent injunctions preventing the city from depriving the Lions Club of using its easement, preventing interference in utility service, hampering the Lions Club’s free speech rights and exercise of religion, and demands an order to force the city to sell or divest ownership of the land with the cross on it. The suit also asks for damages and legal fees.

Court Says Private Investigator Invaded Privacy of Buddhist Temple

In Vo v. Mason, (CA App., Sept. 19, 2017), a California state appellate court held that plaintiff Thuy Thanh Vo was likely to prevail on her state constitutional invasion of privacy suit against a neighbor and those working with him who are trying to prevent Vo from using her property as a Buddhist Temple without zoning approval.  Posing as someone who wanted to study Buddhism and pray, one of the defendants who is a private investigator took photos of religious ceremonies at Vo's property.  The court's finding of a probability of success led the court to deny a SLAPP motion to dismiss Vo's suit.

Recent Articles of Interest

From SSRN:

• Rahman Apalara, Striking a Balance: Freedom of Expression and the Prohibition of Hate Speech and Offensive Remarks, (September 11, 2017).
• Nadia N. Sawicki, A Common Law Duty to Disclose Conscience-Based Limitations on Medical Practice, (Chapter 13 in Law, Religion, and Health in the United States (Lynch, Holly Fernandez, I. Glenn Cohen, and Elizabeth Sepper eds., 2017).
• Nomi Maya Stolzenberg, From Eternity to Here: In Search of the Origins of Secularism, (USC Legal Studies Research Papers Series No. 17-20 (2017)).
• Adam J. White, Justice Scalia's Soulcraft as Statecraft, (June 15, 2017).
• Noa Ben-Asher, Faith-Based Emergency Powers, (Harvard Journal of Law and Gender, Forthcoming).
• Steven J. Heyman, The Light of Nature: John Locke, Natural Rights, and the Origins of American Religious Liberty, (Marquette Law Review, Forthcoming).
• Terri Lynn Helge, Rejecting Charity: Why the IRS Denies Tax Exemption to 501(C)(3) Applicants, (Pittsburgh Tax Review, Vol. 14, No. 1, 2016).

From SSRN (Non-U.S. Law):

• Ming-Sung Kuo & Hui-Wen Chen, The Brown Moment in Taiwan: Making Sense of the Law and Politics of the Taiwanese Same-Sex Marriage Case in a Comparative Light, (Columbia Journal of Asian Law, Forthcoming).
• Mehdi Shadmehr, Khomeini's Theory of Islamic State and the Making of the Iranian Revolution, (September 16, 2017).
• Jikon Lai, Lena Rethel & Kerstin Steiner, Conceptualizing Dynamic Challenges to Global Financial Diffusion: Islamic Finance and the Grafting of Sukuk, (Review of International Political Economy, 2017).
• Aklavya Anand & Shailesh Kumar, Public Domain of Personal Laws: An Inquiry from the Perspectives of Conflict of Interests and Identities, (NLSIU Journal of Law and Public Policy, Volume IV, Special Issue, 2017).

From SmartCILP:

• Wim Decock, Law, Religion, and Debt Relief: Balancing Above the 'Abyss of Despair' in Early Modern Canon Law and Theology, [Abstract], 57 American Journal of Legal History 125-141 (2017).
• Anton Sorkin, Graduation Ceremonies: A Prayer for Balancing Sponsorship and Censorship, 41 Southern Illinois University Law Journal 345-402 (2017).

Recent Prisoner Free Exercise Cases

In Paliotta v. State of Nevada ex rel Nevada Department of Corrections, (NV Sup. Ct., Sept. 14, 2017), the Nevada Supreme Court held that the trial court erred when it used the centrality test instead of the sincerely held belief test to decide if an inmate of the Thelemic faith was entitled to receive a kosher diet or a traditional Egyptian diet.

In Brown v. Solomon, 2017 U.S. Dist. LEXIS 150611 (WD NC, Sept. 15, 2017), a North Carolina federal district court allowed an inmate to move ahead with his efforts to reinstate separate religious services for Jehovah's Witnesses.

In Neely-Bey Tarik-El v. Conley, 2017 U.S. Dist. LEXIS 151714 (SDIN, Sept. 19, 2017), an Indiana federal district court dismissed on qualified immunity grounds a suit by an inmate claiming that his rights were violated when prison authorities disciplined him for violating a resolution of the Moorish Science Temple of America prohibiting him from actively engaging in MSTA religious services.

In Sabin v. Karber, 2017 U.S. Dist. LEXIS 152476 (WD MI, Sept. 20, 2017), a Michigan federal district court dismissed complaints by a Messianic Christian prison ministry that mail it sent into prisons was being rejected.

In Evans v. Lopez, 2017 U.S. Dist. LEXIS 153274  (ED CA, Sept. 15, 2017), a California federal magistrate judge allowed an inmate to move ahead with his complaint that he was denied Ramadan meals that he had bee approved to receive.

Court Upholds Anti-Discrimination Law Over Wedding Videographer's Challenge

In Telescope Media Group v. Lindsey, (D MN, Sept. 29, 2017), a Minnesota federal district court in a 63-page opinion rejected a challenge to a provision of the Minnesota Human Rights Act that requires plaintiffs, owners of a videography business that plans to offer wedding videos, to serve same-sex couples.  Responding to plaintiffs' free speech arguments, the court said in part:

Posting language on a website telling potential customers that a business will discriminate based on sexual orientation is part of the act of sexual orientation discrimination itself; as conduct carried out through language, this act is not protected by the First Amendment.

Plaintiffs also argued that the law, as applied, unconstitutionally affects the content of their videos. However the court concluded:

The MHRA’s application to the Larsens’ wedding video business, as a content neutral regulation of conduct with an incidental effect on speech, survives intermediate scrutiny.

The court went on to reject plaintiffs' free exercise challenge, finding that the law is neutral and of general applicability.