Over Dissent, En Banc Rehearing Denied On Mississippi Conscience Protection Act

In Barber v. Bryant, (5th Cir., Sept. 29, 2017), the U.S. 5th Circuit Court of Appeals by a vote of 12-2 refused to grant an en banc rehearing in a challenge to a Mississippi law (HB 1523) that protects from discriminatory state action anyone who acts on religious or moral beliefs relating to traditional marriage, sex outside of marriage, or transgender rights.  In June, a 3-judge panel held that plaintiffs lack standing to challenge the law. (See prior posting.) Two judges dissented from the denial of an en banc rehearing in an opinion that argues:

... the panel opinion is wrong; the plaintiffs have standing to challenge HB 1523 under Supreme Court and Courts of Appeals precedents. The panel opinion misconstrues and misapplies the Establishment Clause precedent, and, as explained below, its analysis creates a conflict between our circuit and our sister circuits on the issue of Establishment Clause standing.

Court Enjoins Florida Law Restricting Abortion Advice

In Fuldwider v. Senior, (ND FL, Sept. 29, 2017), a Florida federal district court issued a preliminary injunction against enforcement of a Florida statute placing limits on individuals and organizations that provide advice or help to individuals seeking an abortion. Among those challenging the law were a minister and two rabbis who provide religious counseling that sometimes includes discussion of religious beliefs about abortion and sometimes includes referrals to organizations that provide abortions.

The challenged law requires those who provide advice or referrals to register with the state. It requires anyone making a referral to first provide a detailed explanation of abortion, including alternatives. Before referring a minor, the person or agency must also attempt to provide the same explanation to the minor's parents or guardian.  The court summarizes its holding:

This case presents a challenge to a state law that (1) imposes a content-and viewpoint-based requirement to register and pay a fee to engage in speech protected by the First Amendment and (2) makes it a crime not to simultaneously engage in compelled speech that the law describes so vaguely that even the state’s Attorney General does not know what is required. This order grants a preliminary injunction barring enforcement of these provisions.

ACLU issued a press release announcing the decision.

Suit Over Requirement To Remove Hijab For Booking Photo Moves Forward

In G.E. v. City of New York, (ED NY, Sept. 29, 2017), a New York federal district court refused to dismiss at summary judgment stage a free exercise claim by a Muslim woman who was required to remove her hijab for police booking photos.  Initially at the police precinct she was required to remove the head covering, but was allowed to do so in a private room with only a female photographer present.For a subsequent photo at Central Booking, she was required to remove her hijab with men present, despite her request to do so in a private room without men there.  The court said in part:

The City provides nothing in the way of record evidence (or for that matter, legal support) to explain why there were no alternative means of accommodating an arrestee’s religious beliefs at Central Booking at the time when G.E. was arrested – other than to recite the fact that the Central Booking camera was in a fixed location in view of both male and female detainees and staff. Nor does the City explain any resource, staff or other burdens the City would face were it to consider moving the camera, or providing some other accommodation. Not only are these factors central to the rational basis test itself, they are critical to the analysis here because the City did, in fact, change its policy to provide for such accommodation subsequent to G.E.’s arrest.

Various other claims by plaintiff were dismissed.

USCIRF Issues Report On Religious Freedom In Southeast Asia

The U.S. Commission on International Religious Freedom last week issued (press release) a new report titled A Right for All: Freedom of Religion or Belief in ASEAN. The report surveys religious freedom in each of the ten nations that make up the Association of Southeast Asian Nations.  The 35-page report concludes in general:

ASEAN and the individual Member States have an inconsistent record protecting and promoting human rights, and even more so with respect to freedom of religion or belief.

Recent Articles of Interest

From SSRN:

• Kyle C. Velte, Why the Religious Right Can't Have Its (Straight Wedding) Cake and Eat It Too: Breaking the Preservation-Through-Transformation Dynamic in Masterpiece Cakeshop V. Colorado Civil Rights Commission, (September 22, 2017).
• Mohamed A. Arafa, The Prohibition of Wearing Veil in Public Schools in Egypt: An Analysis of the Egyptian Supreme Constitutional Court Jurisprudence, (4 Revista de Investigações Constitucionais (Journal of Constitutional Research) 1, (Curitiba, Brasil) (Spring 2017)).
• Perry Dane, A Tale of Two Clauses: Privacy, Religion, and Constitutional Reason, (William & Mary Bill of Rights, Forthcoming).
• Brian Hutler, Religious Arbitration and the Establishment Clause, (Ohio State Journal on Dispute Resolution, Vol. 33, No. 3, 2018).
• Ethan Dazelle, I Take You to Be My [Religiously] Wedded Wife: The Prospect of Civil Marriage and Personality Law Expanding in the Levant, (May 10, 2017).
• Peter Bayer, Deontological Originalism: Moral Truth, Liberty, and, Constitutional 'Due Process', (September 27, 2017).
• Daniele D'Alvia, (Legal) Uncertainty: Takaful between English Common Law and Shari’A Law, (International Review of Law, 2017).
• Professor Rebecca Gould & Shamil Shikhaliev, ‘Beyond the Taqlīd/Ijtihād Dichotomy: Daghestani Legal Thought under Russian Rule’, (Islamic Law and Society, Vol. 24(1-2), p. 142-169, 2017).
• Jenni Millbank, Exploring the Ineffable in Women's Experiences of Relationality with Their Stored IVF Embryos, ((2017) Body & Society).
• Assaf Likhovski, Recent Trends in the Study of the Intellectual History of Law and Jewish Law Scholarship, (Forthcoming in Diné Yisrael (English section)).

Invocation Policy That Excludes Non-Theists Is Unconstitutional

In Williamson v. Brevard County, (MD FL, Sept. 30, 2017), a Florida federal district court held that the invocation practices of the Brevard (FL) Board of County Commissioners violate the Establishment Clause as well as free speech, free exercise, equal protection and various state constitutional provisions.  County Commissioners take turns inviting clergy or others to deliver an invocation at the beginning of each board meeting.  Commissioners, however, will only invite representatives of the faith-based community.  Non-theists may not deliver invocations, though they may speak during the public comment portion of a Board meeting.  The court, in a 69-page opinion, held:

Although the County contends that its invocation practice passes constitutional muster under Town of Greece, the Supreme Court's opinion in that case cannot be read to condone the deliberate exclusion of citizens who do not believe in a traditional monotheistic religion from eligibility to give opening invocations at County Board meetings. Neither Town of Greece nor any other binding precedent supports the County's arguments, and none of the County's asserted justifications for its practice holds water....

For a governmental entity to require, or attempt to require, "religious" content in invocations is, in effect (or, at best, but a step removed from) that entity composing prayers for public consumption or censoring the content of prayer....

Americans United issued a press release announcing the decision.

Reluctant Judge Holds Cross On County Seal Is Unconstitutional

In Freedom From Religion Foundation, Inc. v. County of Lehigh, (ED PA, Sept. 28, 2017), a Pennsylvania federal district court held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test.  However Judge Edward Smith devoted much of his opinion to explaining why he disagrees with the Supreme Court's interpretation of the Establishment Clause:

If the drafters’ intent and the plain text of the Establishment Clause had alone guided the evolution of modern First Amendment jurisprudence and shaped the law applicable to this case, its resolution would be cut-and-dry. By including a Latin cross on the Seal, the County has chosen to celebrate the Christian values important throughout its history. The County has not, however, legally compelled its citizens to practice and conform to Christianity, infringed on freedom of conscience, or created political conflict between the Christian Church and other religious sects. Simply put, the County of Lehigh did not intend to “establish” religion or institute a County religion when it adopted Commissioner Herzog’s design for the Seal. And if it had intended to do so, it has certainly failed—one of the plaintiffs himself testified that per the 2010 census, 49 percent of the County reported no religious affiliation at all....

While such considerations appear to be a matter of common-sense in determining whether a government has established a religion in violation of the First Amendment, binding precedent has taken the inquiry in a different direction.

FFRF issued a press release announcing the decision.

UPDATE: The judgment ordering a permanent injunction (full text) was entered on Nov. 2, 2017, to become effective 180 days later, and, if an appeal is filed, with a stay (except for any new uses of the seal) while the appeal is pending.

Recent Prisoner Free Exercise Cases

In Rogers v. Jackson, 2017 U.S. Dist. LEXIS 155893 (ED NC, Sept. 25, 2017), a North Carolina federal district court upheld a prison's designation of Five Percenters as a security threat group, as well as upholding restrictions on Nation of Islam. The court also sealed exhibits in the case because they would create a security risk if exposed to inmates.

In Gordon v. Combs, 2017 U.S. Dist. LEXIS 156357 (WD VA, Sept. 25. 2017), a Virginia federal district court allowed a Nation of Islam inmate to move ahead with his complaint that he was not allowed to participate in the fast of Ramadan in 2014.

In Bayadi v. Clarke, 2017 U.S. Dist. LEXIS 156356 (WD VA, Sept. 25, 2017), a Virginia federal district court allowed an inmate to move ahead with his claim under RLUIPA challenging a grooming policy that barred him from growing a beard.

In Rushdan v. Gear, 2017 U.S. Dist. LEXIS 156675 (ED CA, Sept. 25, 2017), a California federal magistrate judge held that an inmate's free exercise rights were not violated when authorities, while allowing him to use both his committed name and his religious name on prison forms, required his list his committed name first.

In Lightner v. Wenderlich, 2017 U.S. Dist. LEXIS 157831 (WD NY, Sept. 25, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his claim that he could not receive a Halal diet containing meat, but dismissed without prejudice his claim regarding access to an Islamic study correspondence course.

In Olds v. Clarke, 2017 U.S. Dist. LEXIS 158328 (WD VA, Sept. 27, 2017), a Virginia federal district court dismissed a Rastafarian inmate's complaint about Common Fare religious diet and transfer of inmates who violate grooming standards.

In Kasel v. Sedgwick County Detention Facility, 2017 U.S. Dist. LEXIS 158598 (D KA, Sept. 27, 2017), a Kansas federal district court gave a Wiccan inmate one month to show cause why his complaint regarding denial of religious services and materials should not be dismissed.

In Chichakli v. Samuels, 2017 U.S. Dist. LEXIS 158703 (WD OK, Sept. 27, 2017), an Oklahoma federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 159964, Aug. 15, 2017) and allowed an inmate to move ahead with his complaint that the diet served him did not comply with kosher standards, but dismissed his complaint regarding access to religious materials and ability to engage in prayer.

In Peyton v. Walrath, 2017 U.S. Dist. LEXIS 158820 (WD VA, Sept. 27, 2017), a Virginia federal district court dismissed a Nation of Islam inmate's complaint regarding unlawful confiscation of religious materials and suspension of NOI group services.  Other complaints were dismissed for failure to exhaust administrative remedies.

In Lawson v. Carney, 2017 U.S. Dist. LEXIS 160030 (ED WA, Sept. 28, 2017), a Washington federal district court dismissed a Jewish inmate's complaint that his kosher diet was suspended for 77 days. UPDATE: The magistrate's recommendation in the case is at 2017 U.S. Dist. LEXIS 160272, Aug. 4, 2017.

Cheerleaders Can Move Ahead With Suit Over Religious-Themed Run-Through Banners

In a long-running dispute, a Texas state appeals court in Kountze Independent School District v. Matthews, (TX App, Sept. 28, 2017), held that run-through banners made and used by high school cheerleaders were private speech rather than government or school-sponsored speech. The cheerleaders sued when the school prohibited their placing religious messages on their banners. The court held that the cheerleaders' private speech is protected by the First Amendment and that the state has waived governmental immunity for suits alleging unconstitutional actions. (See prior related posting.)

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).