U.S. Will Announce New Vetting Rules That Will Allow Refugees From All Countries To Enter

USA Today, quoting the Wall Street Journal [subscription required], reports that the White House today will announce a new vetting process that will allow refugees from all countries to enter the U.S. again. President Trump's controversial travel ban, as it applies to refugees, expires today.

Britain's Court of Appeal Invalidates Sex-Segregated Classes In Co-Ed Faith Schools

In HM Chief Inspector of Education v. Interim Executive Board of Al-Hijrah School, (EWCA, Oct. 13, 2017), the England and Wales Court of Appeal held that a Muslim school which admits both boys and girls, but for religious reasons separates them into sex-segregated classes, violates the Equality Act 2010.  The opinion of Etherton, MR (joined by Beatson, LJ) concluded that the separation operates to discriminate against both boys and girls, saying in part:

An individual girl pupil cannot socialise and intermix with a boy pupil because, and only because, of her sex; and an individual boy pupil cannot socialise and intermix with a girl pupil because, and only because, of his sex. Each is, therefore, treated less favourably than would be the case if their sex was different.

They also point out:

It is common ground that the School is not the only Islamic school which operates such a policy and that a number of Jewish schools with a particular Orthodox ethos and some Christian faith schools have similar practices. 

In a separate opinion, Lady Justice Gloster argued that on the facts of this case, it should be found that the school's practice also has a more detrimental effect on girls than on boys.  She said in part:

One does not need to be an educationalist, a sociologist or a psychiatrist to conclude that a mixed sex school: (i.) which, whether intentionally or otherwise, tolerates an environment where extreme and intolerant contemporary views about the role and physical subservience of women, and the entitlement of men physically to dominate and chastise them, are on display, or available to read, in the school library; (ii.) whose teachers approve the expression by the pupils of gender stereotyped views about the roles of women as homemakers and child minders and the role of men as the breadwinners; (iii.) where girls are always required to wait for an hour during the school day so that the boys can take a break first; and (iv.) where no, or no sufficient, consideration is given to promoting equal  opportunity, is a school where a strict sex segregation policy subjects girls to a greater risk of extreme and intolerant views and is likely to reinforce or create misogynist attitudes amongst the boy pupils towards them.

She also points out that the Equality Act contains an exception for single-sex schools, i.e. schools that only admit students of one sex.

The Court also issued a press summary of its decision.  Schools Week reports on the decision.

Recent Articles of Interest

From SSRN:

• Rex Ahdar, Is Freedom of Conscience Superior to Freedom of Religion?,(October 17, 2017).
• Teresa Stanton Collet, The Urgency of Restoring the Catholic (and Catholic) Nature of Higher Education, (Leisure and Labor Conference, Ignatius Press (2017, Forthcoming)).
• Hillel Y. Levin, Why Some Religious Accommodations for Mandatory Vaccinations Violate the Establishment Clause, (Hastings Law Journal, Vol. 68, 2017).
• Terri Day & Danielle Weatherby, Contemplating Masterpiece Cakeshop, (Washington and Lee Law Review, Forthcoming).
• Michael A. Helfand, When Judges are Theologians: Adjudicating Religious Questions, (Forthcoming, Research Handbook on Law & Religion (Rex Ahdar ed., Edward Elgar Publishers 2018).
• Jill E. Family, Trump's Travel Ban and the Limits of the US Constitution, (El Espacio de Libertad, Seguridad y Justicia de la UE ante el CEDH, edited by Juan Ignacio Ugartemendía and Henri Labayle, 2018 Forthcoming).
• Robin Fretwell Wilson, Being Transgender in the Era of Trump: Compassion Should Pick Up Where Science Leaves Off, (Forthcoming, University of California Irvine Law Review).
• Reem Bahdi, Persona Non Grata: A Muslim Pilot, National Security and the Supreme Court of Canada, (Osgoode Hall Law Journal (55.1), Forthcoming).
• Re'em Segev, Should Law Track Morality?, (Criminal Justice Ethics, Vol. 36. No. 2, pp. 205-223, 2017).
• John Picton, Egoism and the Return of Charitable Gifts, (In R. Hickey, & H. Conway (Eds.), Modern Studies in Property Law (Vol. 9, pp. 175-194). Oxford: Hart (2017)).

Recent Prisoner Free Exercise Cases

In Davis v. Heyns, 2017 U.S. App. LEXIS 20377 (6th Cir, Oct 16, 2017), the 6th Circuit affirmed dismissal of an Muslim inmate's complaint that the only religious diet he could receive was the vegan diet.

In Cooper v. Bower, 2017 U.S. Dist. LEXIS 171529 (WD KY, Oct. 17, 2017), a Kentucky federal district court dismissed for failure to exhaust administrative remedies an inmate's complaint that he was not allowed to receive a copy of the Quran which had been ordered for him.

In Howard v. Connett, 2017 U.S. Dist. LEXIS 172130 (D NV, Oct. 17, 2017), a California federal district court reduced the punitive damages that had previously been awarded against two specific defendants on an inmate's complaint that his religious items were not returned when he was placed in a different cell, and his equal protection complaint that he was unable to attend Nation of Islam services.  The court refused to reduce punitive damages as to other claims.

In Cripe v. Gliddenn, 2017 U.S. Dist. LEXIS 172393 (SD IL, Oct. 18, 2017), an Illinois federal district court allowed a Jewish inmate to move ahead with his complaint that he was denied a kosher diet.

In Toney v. Harrod, 2017 U.S. Dist. LEXIS 173946 (D KA, Oct. 20, 2017), a Kansas federal district court allowed a Muslim inmate to move ahead against one defendant on his claim that his Ramadan meals were not served early enough.

In Johnson v. Little, 2017 U.S. Dist. LEXIS 174006 (D NV, Oct. 18, 2017), a Nevada federal district court refused to dismiss a Muslim inmate's complaint regarding the timing of his Ramadan meals.

In Moir v. Amdahl, 2017 U.S. Dist. LEXIS 174216 (SD IL, Oct. 19, 2017), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that his prayer rug was confiscated.

In Sassi v. Dutchess County, 2017 U.S. Dist. LEXIS 174507 (ND NY, Oct. 20, 2017), a New York federal district court dismissed with leave to amend an inmate's claim that he was not permitted to access a Bible for seven days and was not permitted to participate in Bible study classes.

Minister May Move Ahead With "As Applied" Challenge to Disturbing-The-Peace Ordinance

In Roy v City of Monroe, (WD LA, Oct. 19, 2017), a Louisiana federal district court allowed plaintiff Clarence Roy to move ahead with an "as applied" First Amendment challenge to Monroe, Louisiana's disturbing-the-peace ordinance.  Roy is a minister who regularly preaches near a bar whose patrons are predominately gays and lesbians.  Police issued a summons for disturbing the peace to Roy when a woman complained that Roy had called her names, told her she was going to hell, and that her father was "the devil."  The court said in part:

In essence, the validity of Roy’s First Amendment as-applied claim “hinges on probable cause for [his] [summons]—a fact question for the jury.” ....  Accordingly, this claim cannot be resolved on summary judgment.... If Sergeant Booth had probable cause to arrest Roy under §12:153, “there could be no First Amendment violation.”...  However, if a jury finds there was no probable cause for Roy’s arrest, his First Amendment claim may be considered as well.

The court however dismissed a facial challenge, as well as a due process challenge, to the same Ordinance.

No Unemployment Benefits Where Religious Objections Leading To Resignation Were Not Disclosed

In Kelly v. Unemployment Compensation Review Board, (Commonwealth Ct. PA, Oct. 17, 2017), a Pennsylvania appellate court affirmed the denial of unemployment compensation benefits to an employee who resigned her job for religious reasons, but did not first inform her employer of her religious concerns.  In the case, petitioner Lori Kelly worked as a project manager for the University of Pittsburgh's Health Science's Tissue Bank. Kelly, who is Catholic, became concerned when she learned that some of the fetal tissue samples whose distribution she facilitated came from aborted fetuses.  However she complained at work only about the contentious relationship she had developed with her immediate supervisor.  The court concluded:

Respectful of Claimant’s religious beliefs, we must nevertheless affirm the order of the Board denying Claimant unemployment compensation benefits under Section 402(b) based on her failure to notify Employer of her religious objections to Employer’s use of fetal tissue in GUDMAP. Such notification would have provided Employer with an opportunity to accommodate her religious objections by transferring her to a project that did not involve the use of fetal tissue.

Quebec Enacts New Religious Neutrality Law

In Canada in Wednesday, Quebec's National Assembly passed Bill 62 (full text) which is designed to assure that those providing government services, including subsidized educational institutions, adhere to principles of religious neutrality.  Exceptions in the Act include those engaged in religious instruction in universities, or to prison or university chaplains.  In a section aimed at burqas, the Act bans both those furnishing government services, and those receiving them, from doing so with their face covered, though accommodations are possible. A UPI report on the new law suggests that it will prevent Muslim women who wear the burqa from visiting libraries or riding public buses.  The Act also provides criteria for granting religious accommodations to public employees. Among other things, any accommodation must be "consistent with the right for equality between women and men," and may "not compromise the principle of State religious neutrality." [Thanks to Scott Mange and Steven H. Sholk for the lead.]

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.

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.

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.