Recent Prisoner Free Exercise Cases

In Entler v. Gregoire, (9th Cir., Oct. 6, 2017), the 9th Circuit held that an inmate who was sanctioned for threatening to sue after he was given a job assignment inconsistent with his religious beliefs has a valid retaliation claim.

In Finley v. Cox, (9th Cir., Oct. 6, 2017), the 9th Circuit upheld a trial court's dismissal of complaints by inmates that they were offered a common fare religious diet instead of pre-packaged kosher meals.

In Michalski v. Semple, 2017 U.S. Dist. LEXIS 166524 (D CT, Oct. 6, 2017), a Connecticut federal district court allowed Native American inmates to move ahead with their complaint that defendants suspended their religious services for several months, denied collective smudging, restricted access to the sweat lodge, denied adequate ceremonial foods, and provided an unequal amount of chaplains, supplies, literature and educational opportunities.

In Hamrick v. Baird, 2017 U.S. Dist. LEXIS 168197 (SD IL, Oct. 11, 2017), an Illinois federal district court allowed an inmate to move ahead with a damage claim against a former warden for restrictions on his engaging in daily group prayers, but suggested additional briefing on whether damages are available under RFRA.

In Shorter v. Romero, 2017 U.S. Dist. LEXIS 168920 (SD FL, Oct. 11, 2017), a Florida federal magistrate judge recommended allowing an inmate to move ahead with his claim that he was not allowed to attend Christian religious services.

In Nible v. Fink, 2017 U.S. Dist. LEXIS 170015 (SD CA, Oct. 12, 2017), a California federal magistrate judge recommended dismissing an inmate's claims against certain defendants growing out of the refusal to allow him to receive a package containing runes that he had ordered.

Texas Engaged In Viewpoint Discrimination In Removal of Bill of Rights Nativity Display

In Freedom From Religion Foundation, Inc. v. Abbott, (WD TX, Oct. 13, 2017), a Texas federal district court held that Texas Governor Greg Abbott and the Texas State Preservation Board violated the free speech rights of Freedom From Religion Foundation when, at the governor's order, FFRF's Bill of Rights nativity display was removed from the state capitol rotunda where it had been erected under a limited public forum policy. (See prior related posting.)  The governor claimed that the display did not serve a "public purpose" because of its mocking and satirical tone.  The court held that whether the exhibit was removed because of its satiric tone or because of its non-theistic point of view, either motive constitutes impermissible viewpoint discrimination.

The court went on to deny summary judgment to defendants on FFRF's Establishment Clause claim because material questions of fact remain as to defendants' purpose in excluding the exhibit.  It rejected the governor's claim of qualified immunity as to the free speech claim, but granted it as to the Establishment Clause claim. Friendly Atheist blog has more on the decision.

New Delhi Reacts To Diwali Fireworks Ban

Today's New York Times reports on the impact in New Delhi of a ruling by India's Supreme Court reinstating a ban, motivated by environmental concerns, on the sale of fireworks in the National Capital Region. In September, the court had temporarily suspended the ban. Traditionally the Hindu festival of Diwali-- celebrated this Thursday-- has been marked by extensive fireworks.  However last year the fireworks led to ten days of dangerous pollution in New Delhi and led to a temporary closing of public primary schools.

Trump Addresses Values Voter Summit

Yesterday, President Trump gave a 30-minute address (full text) to the 2017 Values Voter Summit in Washington, D.C., becoming the first sitting President to address the annual event.  His remarks focused largely on themes of faith and of religious liberty. Here are some excerpts:

George Washington said that “religion and morality are indispensable” to America’s happiness, really, prosperity and totally to its success.  It is our faith and our values that inspires us to give with charity, to act with courage, and to sacrifice for what we know is right. 

The American Founders invoked our Creator four times in the Declaration of Independence -- four times.  (Applause.)  How times have changed.  But you know what, now they're changing back again.  Just remember that.  (Applause.) 

Benjamin Franklin reminded his colleagues at the Constitutional Convention to begin by bowing their heads in prayer. 

Religious liberty is enshrined in the very first amendment of the Bill of Rights.  And we all pledge allegiance to -- very, very beautifully -- “one nation under God.”  (Applause.)  

This is America’s heritage, a country that never forgets that we are all -- all, every one of us -- made by the same God in Heaven.  (Applause.) ....

We have also taken action to protect the conscience rights of groups like the Little Sisters of the Poor.  You know what they went through.  (Applause.)  What they went through -- they were going through hell.  And then all of the sudden they won.  They said, how did that happen?  (Laughter.) 

We want to really point out that the Little Sisters of the Poor and other people of faith, they live by a beautiful calling, and we will not let bureaucrats take away that calling or take away their rights.  (Applause.)

We are stopping cold the attacks on Judeo-Christian values.  (Applause.)  Thank you.  Thank you very much.  And something I've said so much during the last two years, but I'll say it again as we approach the end of the year.  You know, we're getting near that beautiful Christmas season that people don't talk about anymore.  (Laughter.)  They don't use the word "Christmas" because it's not politically correct.  You go to department stores, and they'll say, "Happy New Year" and they'll say other things.  And it will be red, they'll have it painted, but they don't say it.  Well, guess what?  We're saying “Merry Christmas” again.  (Applause.)

House of Representatives Ban On Secular Invocations Is Constitutional

In Barker v. Conroy, (D DC, Oct. 11, 2017), the D.C. federal district court rejected challenges to rules of the U.S. House of Representatives which do not allow an atheist to deliver a secular invocation as a guest chaplain. Plaintiff who is co-president of the Freedom From Religion Foundation challenged the practice after his request for inclusion as a guest chaplain was denied.  The court rejected plaintiff's Establishment Clause, Equal Protection Clause and RFRA  claims, saying in part:

Despite Mr. Barker’s repeated attempts to characterize his claims as not challenging the constitutionality of legislative prayer, the reality is that his request to open the House with a secular invocation, which resulted in the denial of his request to serve as a guest chaplain, was a challenge to the ability of Congress to open with a prayer...

The court also rejected a claim that the policy violates the constitutional prohibition on religious tests for any "office or public trust under the United States," concluding that the position of guest chaplain is not an office or position of public trust.

Court Rejects Challenges To Policies Protecting Muslim Women Booking Photos

In Schlussel v. City of Dearborn Heights, (ED MI, Oct. 11, 2017), a Michigan federal district court rejected various challenges by a journalist to a partial denial of her state Freedom of Information Act request for booking photos and videos that were taken of a Muslim woman with her hijab removed.  The city denied the request under the state FOIA's privacy exception.  In the meantime the city had modified its booking procedures-- in response to litigation-- to allow women to continue to wear their hijabs or burkas in booking photos.

The court rejected claims by plaintiff, who was female and Jewish, that her equal protection rights were violated because the photos and videos in question had been released to a Muslim male who was the Muslim woman's lawyer.  The court also rejected a claim that the city's new booking policy violates the Establishment Clause because it applies only to Muslim women.

Ecclesiastical Abstention Requires Dismissal of Suit Over Student's Forced Withdrawal From High School

In In re the Episcopal School of Dallas, Inc., (TX App, Oct. 11, 2017), a Texas state appellate court held that the ecclesiastical abstention doctrine applies to a faith-based school, even though the school was not owned or operated by a church, saying in part:

[T]he Does cite no authority for the premise that the ecclesiastical abstention doctrine requires a showing that an institution’s “primary purpose” is religion. More importantly, asking this Court to examine and compare the contours of different religions or measure the internal application of Episcopal precepts to the school’s policies or its conduct here seeks to have us engage in the exact analysis the First Amendment precludes. 

It ordered the trial court to dismiss for lack of jurisdiction a suit by a high school student who was forced to withdraw from school because of marijuana use during his lunch hour and his conduct surrounding investigation of the incident.  the court concluded:

The Does’ claims all concern a faith-based organization’s internal affairs, governance, administration, membership, or disciplinary procedures and are protected religious decisions. Thus, the Does’ suit has no secular aspect for the courts to consider.

Pastor's Wife Sues Over Kansas Israel Anti-Boycott Law

The ACLU today filed suit in federal district court in Kansas on behalf of a Mennonite woman challenging a Kansas statute that allows the state to enter contracts with companies or individuals only if they certify that they are not currently engaged in a boycott of Israel.  The complaint (full text) in Koontz v. Watson, (D KA, filed 10/11/2017), explains that Esther Koontz, the wife of a Mennonite pastor, following the recommendation in a resolution passed by the Mennonite Church USA is engaged in a boycott of consumer goods and services offered by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories.  The Kansas State Department of Education refuses to sign a contract with Koontz for her to serve as a teacher trainer in its Math & Science Partnerships program because she refuses to sign a boycott certification.  The complaint alleges that this violates her free speech and associational rights, amounts to viewpoint discrimination, and violates the equal protection clause of the 14th Amendment. The ACLU has also submitted a Memorandum (full text) in support of Koontz's motion for a preliminary injunction.  ACLU issued a press release announcing the filing of the lawsuit.

House Holds Hearings on International Religious Freedom

The House Oversight and Government Reform Committee this morning held hearings on The U.S. Government's Role in Protecting International Religious Freedom.  The prepared testimony of four witnesses who testified is available on the Committee's website.

Court Will Not Enjoin Medical Marijuana Limits In Suit By Minister

In Harris v. City of Clearlake, (ND CA, Oct. 10, 2017), a California federal district court refused to issue a preliminary injunction to prevent the city of Clearlake, California from enforcing its regulations on growing  of medical marijuana against a church that cultivated cannabis for sacramental purposes. The court denied the claim by the church itself because it was not represented by an attorney, and the church's minister who filed the case pro se cannot represent the church since he is not a member of the bar.  As to the claim by the church's minister on his own behalf, the court concluded that the city's regulations are a neutral law of general applicability, and that the minister failed to show that enforcement infringes on his right to use marijuana as a religious sacrament:

[T]he ordinance permits Harris to cultivate six living marijuana plants subject to permitting, enclosure and spatial restrictions. Harris has not shown that six plants are insufficient to meet his personal religious needs, or that he cannot obtain marijuana plants to satisfy his religious needs through other means.

Supreme Court Hears Oral Arguments In Alien Tort Statute Case

Today the U.S. Supreme Court heard oral arguments (full transcript of arguments) in Jesner v. Arab Bank, PLC.  At issue in the case is whether corporations may ever be held liable under the Alien Tort Statute, which allows aliens to sue in U.S. courts for a tort committed in violation of the law of nations or a treaty of the United States. Circuit Courts are split on the issue.  The underlying claims in this lawsuit are described in the petition for certiorari:

Petitioners are victims of terrorist attacks ... that took place between 1995 and 2005 in Israel, the West Bank, and Gaza. In five separate lawsuits ... they alleged that Arab Bank knowingly and intentionally financed this terrorism through activities in New York that led to the suicide bombings and other attacks that caused petitioners’ injuries.... Petitioners also allege that the Bank, through the involvement of its New York branch, knowingly distributed millions of dollars to terrorists and their families on behalf of terrorist front groups.

USA Today reports on today's oral arguments.

Supreme Court Dismisses One Travel Ban Case As Moot

In an Order (full text) issued yesterday, the U.S. Supreme Court dismissed as moot Trump v. International Refugee Assistance Project, the challenge to President Trump's second travel ban. As explained by a USA Today report:

"We express no view on the merits," the justices said in a one-page order.

The decision effectively wipes the record clean in the U.S. Court of Appeals for the 4th Circuit, one of two federal appeals courts that had struck down major portions of Trump's travel ban. That case began in Maryland.

A separate case from the 9th Circuit, based in California, remains pending because it includes a ban on refugees worldwide that won't expire until later this month. But the Supreme Court is likely to ditch that case, which began in Hawaii, as well....

Justice Sotomayor dissented, saying that instead she would dismiss  the writ of certiorari as improvidently granted. This would have maintained the 4th Circuit's opinion as precedent.

Vermont Supreme Court: Grant For Church Repairs Is Likely OK

In Taylor v. Town of Cabot, (VT Sup. Ct., Oct. 6, 2017), the Vermont Supreme Court vacated a preliminary injunction that a trial court had issued to block a municipal grant to a historic church for repairs to its building.  The grant came from funds that originated with the federal government but now belonged to the town to use consistent with federal regulations. The court held that plaintiffs have municipal taxpayer standing to challenge the grant under the state constitution's prohibition on compelled support of any place of worship (Chapter I, Article Three). In remanding the case for further proceedings, the court said in part:

The fact that the ultimate recipient of these funds is a church does not itself establish a violation of the Compelled Support Clause; the critical question is whether the funds will support worship. Chittenden Town Sch. Dist., 169 Vt. at 325, 738 A.2d at 550. In fact, denying the UCC secular benefits available to other like organizations might raise concerns under the Free Exercise Clause of the United States Constitution. To meet these concerns, plaintiffs will have to demonstrate that painting the church building and assessing its sills is more like funding devotional training for future clergy, as in Locke, than paying for a new playground surface on church property, as in Trinity Lutheran. Specified repairs to the church building itself admittedly fall somewhere between these two poles. In making their case, plaintiffs must persuade the court either that the Compelled Support Clause categorically precludes the use of public funds to pay for any repairs to a building that serves as a place of worship, without regard to the breadth and neutrality of the program pursuant to which the funding is provided, or that the specific repairs funded under this grant are prohibited. The first proposition is legally questionable; the second is not supported by the record.

Another Suit Challenges Expanded Contraceptive Mandate Religious Exemptions

As previously reported, last week the Trump Administration issued interim final rules expanding religious and conscience exemptions from the Affordable Care Act contraceptive coverage mandate. The ACLU immediately filed suit challenging the new rules.  Now the state of Washington has also filed suit challenging the expanded exemptions.  The complaint (full text) in State of Washington v. Trump, (WD WA, filed 10/9/2017), contends in part that the rules violate the Establishment Clause:

The Religious IFRs [Interim Final Rules] and the corresponding portion of the 2017 Updated Guidelines are intended to and have the effect of advancing, imposing, and endorsing certain religious interests. For example, they permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees (and their dependents). Based on the religious beliefs of an employer or institution of higher education, the Religious IFRs deny women access to contraceptive coverage that the ACA would otherwise secure.

The suit also alleges that the rules violate the equal protection component of the 5th Amendment and violate the Administrative Procedure Act. Washington AG Bob Ferguson issued a press release announcing the filing of the lawsuit.

Suit Challenges Scope of Religious Exemption From Vaccination Requirement

Sunday's Kansas City Star reports on a lawsuit filed recently by the grandparents of a 2-year old objecting on religious grounds to the vaccination of their grandson. While Kansas provides a religious exemption from the vaccination requirement, the complication here is that the toddler is in temporary custody of the Kansas Department for Children and Families, but has been placed in foster care with his grandparents.  This gives the state the right to decide on vaccination, even though the child's grandmother has filed a religious exemption statement with the school.  The suit claims that taking the decision away from the family is a violation of the right to privacy.  It also contends that the Kansas exemption statute is vague and imposes an unconstitutional religious test.  The statute requires a parent or guardian to certify "that the child is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations."  Apparently the state requires the parent or guardian to name the specific religious denomination and its specific doctrine.  The grandparents say that it is impossible for a two year old child to be "an adherent of a religious denomination."

Free Exercise Objections To Forced Hospital Admission on Sabbath Are Dismissed

In Davenport v. Pottstown Hospital Company, LLC, (ED PA, Oct. 6, 2017), a Pennsylvania federal district court dismissed on various grounds the free exercise claims in a lawsuit by a Jewish plaintiff who on his Sabbath, in violation of his religious beliefs, was transported to a hospital by vehicle and coerced into signing voluntary commitment documents.  Also at the hospital his request for Passover kosher meals was ignored. Some of the defendants were dismissed on qualified immunity grounds; others were dismissed on state actor and other grounds.  Plaintiff was permitted to move ahead on his claim for intentional infliction of emotional distress.

FOIA Lawsuit Seeks Information On Case-By-Case Waiver of Travel Ban

Last week a Freedom of Information Act lawsuit was filed by three advocacy groups-- Muslim Advocates, Americans United for Separation of Church and State, and Southern Poverty Law Center-- seeking information on the waiver provisions of President Trump's second travel ban executive order.  The complaint (full text) in Muslim Advocates v. U.S. Department of State, (D DC, filed 10/5/2017) reads in part:

On June 27, 2017, Plaintiffs submitted a FOIA request ... seeking specific information related to the waiver provisions of Executive Order 13,780 ... allowing the Commissioner of CBP to determine on a case-by-case basis whether a national from one of the six majority Muslim countries identified in the Second Executive Order may gain entry into the country. These documents and information are critical to Plaintiffs’ ability to assist and advise affected travelers, and to understand the scope of the Second Executive Order’s waiver provision and the extent to which the government has implemented or is implementing its policies in a discriminatory or unconstitutional manner.

President Trump's Sept. 24 Proclamation revising the travel ban contains a similar waiver provision. Muslim Advocates issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Nathan S. Chapman, Adjudicating Religious Sincerity, (Washington Law Review, Vol. 92, 2017).
• Jena McGill, 'Now Its My Rights Versus Yours': Equality in Tension with Religious Freedoms, (Alberta Law Review, Vol. 53, No. 3, 2016).
• Mark Strasser, Obergefell, Dignity, and the Family, (19 Journal of Gender, Race and Justice 317-49 (2016)).
• Douglas NeJaime, The Family's Constitution, (32 Constitutional Commentary 413 (2017)).
• Mourad Greiss, Enforcing Abuse of Dominance Under a Sharia-Compliant Competition Law: A Consumer-Welfare Approach? Implications for MENA Competition Authorities, (Global Competition Litigation Review, Issue 3, pp.145-154, 2017).

From SmartCILP:

• Antony Barone Kolenc, Putting Faith in Europe: Should the U.S. Supreme Court Learn from the European Court of Human Rights?, 45 Georgia Journal of International & Comparative Law 1-25 (2016).
• Peter J. Smith & Robert W. Tuttle, God and State Preambles, 100 Marquette Law Review 757-833 (2017).
• Larry A. Golemon, Professional Identity Formation Throughout the Curriculum: Lessons from Clergy Education, [Abstract], 68 Mercer Law Review 649-663 (2017).

Court Says Tax Code's Parsonage Allowance Is Unconstitutional

In Gaylor v. Mnuchin, (WD WI, Oct. 6, 2017), a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. That section allows clergy to exclude from income the rental allowance they receive that is used to rent or provide a home.  In a 2013 decision, the same court reached a similar conclusion, but was reversed on appeal on standing grounds.  Plaintiffs cured those standing issues in the present case. The court summarized it holding:

any reasonable observer would conclude that the purpose and effect of § 107(2) is to provide financial assistance to one group of religious employees without any consideration to the secular employees who are similarly situated to ministers. Under current law, that type of provision violates the establishment clause.

As a remedy, however, the court issued only a declaratory judgment, and gave the parties the opportunity to file supplemental briefs on additional remedies such as a tax refund to plaintiffs who were taxed on their housing allowances from their employer (the Freedom From Religion Foundation), or an injunction of some sort.  FFRF issued a press release announcing the decision. [Thanks to Bob Ritter for the lead.]

Claim of Fraudulent Luring Into Conversion To Christianity Dismissed on Ecclesiastical Abstention Grounds

In Rymer v. Lemaster, (MD TN, Oct. 4, 2017), a Tennessee federal district court adopted a federal magistrate's recommendation of Aug. 30, 2017 (full text) and dismissed on ecclesiastical abstention grounds a suit by a college student against a Baptist minister. Student Lincoln Rymer claimed that Roger Oldham who was acting as his spiritual adviser wrongfully obtained student information about him, and used that information and an attractive female student to lure him into converting to Christianity.  Plaintiff claimed over $15.7 million in damages flowing from the conversion.