Religion Clause

Tuesday, October 17, 2017

Callista Gingrich Confirmed As Ambassador To The Vatican

According to AP, the U.S. Senate yesterday approved the nomination of Callista L. Gingrich to be Ambassador to the Holy See. The vote was 70-23. The new ambassador is the wife of former House Speaker Newt Gingrich. She is president of Gingrich Productions where she has produced documentaries, including one focusing on Pope John Paul II.

Monday, October 16, 2017

Supreme Court Denies Review In 10 Commandments Case

The U.S. Supreme Court today denied certiorari in Bloomfield, NM v. Felix, (Docket No. 17-60, cert. denied 10/16/2017) (Order List). In the case, a 3-judge panel of the 10th Circuit found that a Ten Commandments monument on a city hall lawn violates the Establishment Clause. (See prior posting.) The full 10th Circuit, over the dissent of two judges, denied en banc review. (See prior posting.) ADF issued a press release on the Supreme Court's denial of review.

Couple Sues Over Catholic Charities Refusal To Allow Adoption

AP reports that a North Dakota couple is suing Catholic Charities for $6.5 million because the organization refused to allow them to adopt a 15-year old girl who was in foster care. The refusal was based on the fact that the adopting couple, in violation of Catholic religious teachings, were living together and were not yet married. Their planned wedding was 5 months away and they had hoped the 15-year old would be a bridesmaid.

Obscene Gesture Directed At Pastor Cannot Support Disorderly Conduct Conviction

In Freeman v. State, (GA Sup. Ct., Oct. 2, 2017), the Georgia Supreme Court held that a congregant could not constitutionally be convicted of disorderly conduct for standing up in the back of the church, raising his middle finger in the air and staring angrily at the pastor. Even though the pastor testified that he felt afraid for his safety at the time, the state Supreme Court held that defendant's raised middle finger constituted constitutionally protected expression. It said in part:

Because there was no showing here that Freeman’s act of silently raising his middle finger from the back of the church during the church service constituted “fighting words” or a “true threat” that would amount to a tumultuous act, his conviction for disorderly conduct under OCGA § 16-11-39 (a) (1) cannot stand.

Atlanta Journal Constitution reported on the decision. [Thanks to TaxProf blog via Steven H. Sholk for the lead.]

Church Charges Zoning Denial Stemmed From Anti-African Discrimination

Mwakilishi reports on a lawsuit filed Oct. 13 in a Maryland federal district court by the Jesus Christ is the Answer Ministries challenging Baltimore County's refusal to rezone residential property purchased by the congregation for use as a church. The church's minister is a native of Kenya and much of the congregation is African. The suit charges that the zoning denial stemmed from opposition by neighbors to those of African heritage, in violation of the 1st and 14th Amendments as well as RLUIPA.

Cert Petitions Filed In Two Religious Liberty Cases

Last week, petitions for certiorari were filed with the U.S. Supreme Court in two cases of interest. On Oct. 10, a cert. petition (full text) was filed in Barber v. Bryant. In the case, the U.S. 5th Circuit Court of Appeals dismissed for lack of standing two suits challenging Mississippi's HB 1523 which protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions on three topics. The protected beliefs are that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth. (See prior posting). An en banc rehearing was denied by a vote of 12-2. (See prior posting.) Washington Blade reports on the petition for review.

On Oct. 12, a petition for certiorari (full text) was filed in Rowan County, North Carolina v. Lund. In the case, the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.) WBTV reports on the filing of the cert. petition.

Sunday, October 15, 2017

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.

Saturday, October 14, 2017

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.

Wednesday, October 11, 2017

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.