Religion Clause

Thursday, October 19, 2017

USCIRF Condemns Pakistan's Blasphemy Convictions of Ahmadis

The U.S. Commission on International Religious Freedom issued a press release yesterday condemning Pakistan for sentencing three Ahmadis to death for blasphemy. Voice of America reports that the three were sentenced Wednesday by a court in Pakistan's Punjab province. The men were arrested in 2014 after village residents claimed they were tearing down a religious poster-- apparently an anti-Ahmadi poster. Ahmadis consider themselves Muslims, but Pakistan does not recognize them as such and considers them heretics. USCIRF called on Pakistan to repeal their blasphemy laws and to release those in prison on blasphemy charges.

Court Dismisses Parents' Complaint of Coerced Baptism of Son

In Defibaugh v. Big Brothers/ Big Sisters of Northeast Ohio Board of Trustees, (ND OH, Oct. 16, 2017), an Ohio federal district court dismissed a suit by parents of a minor child who contend that the mentor assigned by a juvenile court to their minor son coerced him into being baptized against the wishes of his parents. They also claim that their son's guardian ad litem preached to the family about Christianity. The court held that the various defendants were not state actors or had judicial immunity. Friendly Atheist blog has more on the case.

4th Circuit: Latin Cross War Memorial Violates Establishment Clause

In American Humanist Association v. Maryland-National Capital Park and Planning Commission, (4th Cir., Oct. 18, 2017), the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a 40-foot tall Latin Cross on government property created as a World War I Veterans' Memorial violates the Establishment Clause. The majority summarized its holding:

The monument here has the primary effect of endorsing religion and excessively entangles the government in religion. The Latin cross is the core symbol of Christianity. And here, it is 40 feet tall; prominently displayed in the center of one of the busiest intersections in Prince George’s County, Maryland; and maintained with thousands of dollars in government funds. Therefore, we hold that the purported war memorial breaches the “wall of separation between Church and State.”

Chief Judge Gregory, dissenting in part, said:

I conclude that a reasonable observer would understand that the Memorial, while displaying a religious symbol, is a war memorial built to celebrate the forty-nine Prince George’s County residents who gave their lives in battle. Such an observer would not understand the effect of the Commission’s display of the Memorial—with such a commemorative past and set among other memorials in a large state park— to be a divisive message promoting Christianity over any other religion or nonreligion. A cross near a busy intersection "need not be taken as a statement of governmental support for sectarian beliefs...."

Baltimore Sun reports on the decision.

Church Can Move Ahead With RLUIPA Challenges To Zoning Refusal

In Hunt Valley Baptist Church, Inc. v. Baltimore County, Maryland, (D MD, Oct. 17, 2017), a Maryland federal district court held that a Baptist church can proceed with challenges under RLUIPA as well as with Free Exercise and Equal Protection challenges to the county's refusal to grant it a special exception under its zoning laws to allow construction of a place of worship and related facilities. The court said in part:

... [T]he Church has stated a substantial burden claim under 42 U.S.C. §2000cc(a)(1) because it has plausibly alleged that it had a reasonable expectation that it could build a house of worship on the Property if it satisfied the conditions. Moreover, the Church alleges that it complied with all of the objective standards under BCZR § 502.1 for the grant of a special exception. ....

HVBC has adequately alleged that it was treated less favorably than other religious denominations, and that the rejection of its application for a special exception ―was substantially motivated by hostility and animus toward the Church and its religious character, practices and denomination.

UPDATE: The court filed an amended opinion on Oct. 24, involving a change on the last page of the opinion as to dropping one of the defendants.

Another Court Enjoins Enforcement of Third Travel Ban

In International Refugee Assistance Project v. Trump, (D MD, Oct. 17, 2017), a Maryland federal district court became the second court (see prior posting) to bar enforcement of most of the third version of President Trump's travel ban. As did the Hawaii federal district court the day before, the Maryland federal court held that the Presidential Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality. Disagreeing with the Hawaii federal court, it held that the government had made an adequate fining of "detrimental interest" to justify the ban.

Reaching an issue that the Hawaii court had avoided, the Maryland federal court concluded that, like the prior two bans, the third travel ban also violates the Establishment Clause. It concluded that the third version of the ban is merely "the inextricable re-animation of the twice-enjoined Muslim ban." The court said in part:

... [A] simple check on the demographics of the geographic area affected by the Proclamation, with a combined population that is predominantly Muslim, reveals that its impact closely aligns with religious affiliation.... Likewise, the inclusion of two non-majority Muslim nations, North Korea and Venezuela, does not persuasively show a lack of religious purpose behind the Proclamation. The Venezuela ban is qualitatively different from the others because it extends only to government officials, and the ban on North Korea will, according to Department of State statistics, affect fewer than 100 people....

Thus, while Defendants assert that the Proclamation’s travel ban was arrived at through the routine operations of the government bureaucracy, the public was witness to a different genealogy, one in which the President—speaking “straight to the American people,” ... announced his intention to go back to and get even tougher than in EO-1 and EO-2....

The reasonable observer using a “head with common sense” would rely on the statements of the President to discern the purpose of a Presidential Proclamation.... Here, those statements do not offer “persuasive” rejection of the President’s prior calls for a Muslim ban, or his stated intention to use a ban on certain “dangerous territory” to effectuate a Muslim ban, ... nor do they show that the stated intention to impose a Muslim ban has been “repealed or otherwise repudiated”

The court, while issuing a nationwide injunction, limited its injunction to visa applicants who have a credible claim of a bona fide relationship with a person or entity in the United States, ad defined in prior litigation on the President's travel bans. It also excluded travelers from Venezuela or North Korea. CNN reports on the decision.

Wednesday, October 18, 2017

Court Bars Enforcement of Most of Trump's Third Travel Ban

In State of Hawaii v. Trump,(D HI, Oct. 17, 2017), a Hawaii federal district court issued a nation-wide temporary restraining order barring enforcement of most portions of the latest, more focused, version of President Trump's travel ban. (See prior related posting.) This version, set out in a Presidential Proclamation and scheduled to take effect today, covers travel to the U.S. by nationals of eight countries. The court banned enforcement of the Proclamation ("EO-3") against nationals of Chad, Iran, Libya, Syria, Yemen, and Somalia. Plaintiffs had not sought a ban on enforcing the provisions barring travelers from North Korea and some travelers from Venezuela. The court summarized:

Ignoring the guidance afforded by the Ninth Circuit that at least this Court is obligated to follow, EO-3 suffers from precisely the same maladies as its predecessor: it lacks sufficient findings that the entry of more than 150 million nationals from six specified countries would be “detrimental to the interests of the United States,” a precondition that the Ninth Circuit determined must be satisfied before the Executive may properly invoke Section 1182(f). Hawaii, 859 F.3d at 774. And EO-3 plainly discriminates based on nationality in the manner that the Ninth Circuit has found antithetical to both Section 1152(a) and the founding principles of this Nation. Hawaii, 859 F.3d at 776–79.

As with the 9th Circuit's earlier decision (see prior posting), this approach allowed the court to avoid reaching plaintiff's argument that the Proclamation amounts to an unconstitutional "Muslim ban." Anticipating an appeal, the court also ruled that it would not stay its Order pending any appeal. CNN reports on the decision.

UPDATE: On Oct. 20, the court converted the TRO to a preliminary injunction. (Full text of order.)

Israeli Court Fines Online "Jews-Only" Job Site

In Israel yesterday a Jerusalem trial court fined the online "Jewish Job List" NIS 40,000 ($11,371) for violating employment discrimination laws. The site which lists jobs for employers who want to only hire Jews was found by the court to violate Israeli laws against employment discrimination on the basis of nationality or religion. According to a report on the case in Hamodia:

The lawsuit received backing from the official government ombudsman for equality in the Labor Ministry, who said in a statement to the court that attempts to persuade the public to hire Jews, and not to hire Arabs, is “a serious violation of civil rights. The message is clear that promoting this kind of discrimination is against the values of the State of Israel, and removing this will be another step in providing an equal-opportunity job market,” he added.

California Governor Vetoes Expanded Labor Protections For Employees of Religious Organizations

On Oct. 15, California Governor Jerry Brown vetoed AB-569 (full text of bill) that would have expanded the employees who are protected against dismissal for their reproductive health choices. The bill provides in part:

The Legislature finds that employees of religiously affiliated institutions are entitled to the same protections as any other employee under the California Labor Code, unless the employee is the functional equivalent of minister, and therefore subject to a “ministerial exception” as developed in First Amendment case law.

California's current Fair Employment and Housing Act does not cover any employees of non-profit religious associations or corporations (Sec. 12940(j)(4)). Governor Brown's veto message said:

The California Fair Employment and Housing Act has long banned such adverse actions, except for religious institutions. I believe these types of claims should remain within the jurisdiction of the Department of Fair Employment and Housing.

In a press release on the governor's veto, ADF described the vetoed bill as one that "would have prohibited churches, religious colleges, religious non-profit organizations, and pro-life pregnancy care centers from having faith-based codes of conduct with regard to abortion and sexual behavior."

Plaintiff Argues that "Make America Great Again" Hat Is Religious Expression

The Gothamist this week reports that a plaintiff in a New York lawsuit against a West Village bar is defending against a motion to dismiss by claiming that his wearing of a "Make America Great Again" hat was religious expression. Plaintiff Greg Piatek, a Philadelphia accountant, sued after he was allegedly insulted by the bartender and eventually removed from the bar because of the message on his hat. He now says that he was discriminated against because of his spiritual beliefs. He argues that these beliefs are related to his sympathy for the victims of 9/11.

Church Feeding Homeless Denied Preliminary Injunction Because No Harm Imminent

In Compassion Church, Inc. v. City of Davenport, Iowa, (SD IA, Oct. 16, 2017), an Iowa federal district court refused to issue a preliminary injunction to prevent interference with a church serving breakfast to the homeless each day. While in April zoning officials had issued a cease-and-desist order requiring the church to stop serving meals until it obtained rezoning, in May the city informed the church that it would not enforce the cease-and-desist order. It also told the church that serving breakfast to the homeless was consistent with its current zoning classification. The court concluded that plaintiffs had not shown the threat of irreparable harm since enforcement against it was unlikely. Quad-City Times reports on the decision.

Tuesday, October 17, 2017

New California Law Bars State Role In Any Future "Muslim Registry"

On Sunday, California Governor Jerry Brown signed into law SB 31, the California Religious Freedom Act (full text). As reported by Law Newz, the bill prevents any participation by local or state agencies in any federal "Muslim Registry" that might be developed. As summarized in part by the Legislative Counsel's office:

The bill would prohibit a state or local agency or a public employee ... from providing or disclosing to the federal government personal information regarding a person’s religious beliefs, practices, or affiliation ... when the information is sought for compiling a database of individuals based on religious belief, practice, or affiliation, national origin, or ethnicity for law enforcement or immigration purposes. The bill would also prohibit a state agency from using agency resources to assist with any government program compiling such a database ... [and] would prohibit state and local law enforcement agencies ... from collecting personal information on the religious beliefs, practices, or affiliation of any individual, except as part of a targeted investigation ... or where necessary to provide religious accommodations.

Government Settles 13 Contraceptive Mandate Cases

According to a press release from Thomas Aquinas College, last Friday 74 plaintiffs in 13 cases around the United States entered a settlement agreement with the federal government in their lawsuits seeking religious exemptions from the Affordable Care Act contraceptive coverage mandate. The settlement comes after the Trump Administration issued new rules providing broadened exemptions to individuals and entities with religious and moral objections to the ACA mandate. (See prior posting.) According to the press release:

Under the terms of the settlement, the government concedes that the HHS Mandate “imposes a substantial burden” on plaintiffs’ “exercise of religion” and, as such, “cannot be legally enforced, under RFRA, against Plaintiffs or their health plans.” The government therefore agrees to treat plaintiffs “as exempt from the Regulations or any materially similar regulation or agency policy.”

Christian School's Zoning Exclusion Did Not Violate RLUIPA

In Tree of Life Christian Schools v. City of Upper Arlington, (SD OH, Oct. 13, 2017), an Ohio federal district court held that Upper Arlington, Ohio's zoning law as applied to a Christian school did not violate the equal terms provision of RLUIPA. In the case which has been in the courts for more than six years, the 6th Circuit Court of Appeals had instructed the district court to determine:

Are there nonreligious assemblies or institutions to which the court should compare Tree of Life Christian Schools because they would fail to maximize income-tax revenue, and if so, would those assemblies or institutions be treated equally to TOL Christian Schools?

The district court concluded:

Plaintiff’s proposed use of the Property as a school is not consistent with the regulatory purpose of the ORC Office and Research District–to maximize income, whereas permitted uses such as banks, hotels/motels, and hospitals do serve that purpose. Plaintiff, a religious school, is treated the same as every other nonreligious assembly or institution, such as secular schools, that do not maximize tax revenue as they are all prohibited from the ORC Office and Research District. Therefore, regardless of what test is applied, there is no nonreligious assembly or institution similarly situated that is being treated better than Plaintiff.

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.