HHS Seeks Comments on Faith-Based Participation In Programs

The Department of Health and Human Services yesterday published a Release (full text)  in the Federal Register seeking comment on removal of barriers that may exist to participation in HHS programs and grants for faith-based organizations.  The Release says in part:

HHS seeks input from the public and relevant stakeholders on potential changes that could be made to existing HHS regulations or guidance to ensure that faith-based organizations and their religious beliefs and moral convictions are properly accommodated, that faith based organizations are not required to act contrary to their religious beliefs or moral convictions (as a recipient, subrecipient, contractor, sub-contractor, or otherwise) or are otherwise not restricted, excluded, substantially burdened, discriminated against, or disproportionately disadvantaged in HHS-conducted or funded programs or activities (including those administered by state and local governments) because of their religious character, identity, beliefs, or moral convictions

HHS also seeks input on whether faith-based organizations could face potential obstacles to participation in state or locally funded programs, or restrictions on their privately funded activities, because of HHS requirements imposed on state and local governments as a condition of receiving HHS funding.

Catholic Philly reports on the Release.

Indiana Sex Offenders Not Banned From Churches

In John Doe 1 v. Boone County Prosecutor, (IN App., Oct. 24, 2017), the Indiana Court of Appeals held that the state's sex offender law does not prohibit serious sex offenders from attending their church, even if the church conducts Sunday school or provides child care at the same site.  Indiana law prohibits "serious sex offenders" from entering "school property."  The Court concluded:

Churches and religious instruction are not schools, nor do they become so by use of the popular and common name of “Sunday school.”

Zionsville (IN) Times Sentinel reports on the decision.

New Jersey Sues Township Over Attempts To Exclude Orthodox Jews

Yesterday, New Jersey's Attorney general filed a religious discrimination suit against Mahwah Township.  The complaint (full text) in Porrino v. Township of Mahwah, (NJ Super. Ct., filed 10/24/2017) is summarized in a press release from the Attorney General's Office:

Likening the conduct of Mahwah township officials to 1950s-era “white flight” suburbanites who sought to keep African-Americans from moving into their neighborhoods, Attorney General Christopher S. Porrino announced today that the State has filed a Superior Court complaint against the Mahwah Township Council and the Township of Mahwah alleging that, in an effort to stave off a feared influx of Orthodox Jewish persons from outside New Jersey, it approved two unlawfully discriminatory ordinances.

One of those ordinances discriminated by banning non-New-Jersey-residents from using Mahwah’s public parks, the State alleges. The other – an ordinance amendment – discriminated by effectively banning the posting, on utility poles, of plastic strips called “lechis” that denote the boundaries of an eruv used by Sabbath-observant Orthodox Jews. The complaint also challenges actions the township has taken to have an existing eruv removed.

[Thanks to Steven H. Sholk for the lead.] 

Court Rejects Objections To Refusal To Reschedule Trial Dates For Alleged Religious Reasons

In People v. Alliance Warburg Capital Management, (NY Cty. Sup. Ct., Oct. 17, 2017), a New York trial court rejected religious free exercise arguments by defendant who had been convicted of defrauding investors out of over $4 million.  Defendant objected to the court's refusal during trial to agree to hold no sessions on Fridays-- though only one session was in fact held on a Friday.  The state did not object to defendant's request.  The court found defendant's religious claims to insincere.  Defendant claimed to be Jewish and contended that "he was an adherent of Kabbalah Judaism and that the tenets of that faith required an observance with respect to "sundown in Israel, not just sundown here in the U.S...."

The court observed that defendant had repeatedly used religion to perpetrate his frauds.  It concluded:

The right to the free exercise of religion is one of our most precious liberties. The use of religion to perpetrate fraud, on the other hand, is abhorrent. This Court, as others, obviously does not make every decision to vindicate a principle. Often, efficiency and the agreement of the parties are controlling. In this case, however, the principle was also important. It was important that Mr. Canady not use religion to defraud the court — as he had done on multiple prior occasions to defraud his victims.

Supreme Court Dismisses As Moot Remaining Travel Ban Challenge On Its Docket

Yesterday, as President Trump's prior Executive Order barring admission of refugees expired and a new Executive Order took effect, the U.S. Supreme Court issued an order (full text) in Trump v. Hawaii in which it had previously granted review to decide on the constitutionality of the President's second travel ban.  In the order the Court vacated the judgment below and remanded to the 9th Circuit with instructions to dismiss as moot the challenge to the prior Executive Order.  Justice Sotomayor dissented from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted. The Court earlier dismissed another challenge on similar grounds. (See prior posting.)

New Executive Order Restarts Refugee Admissions With Increased Vetting

President Trump today issued an Executive Order (full text) resuming the admission of refugees to the United States, but with increased vetting.  The Executive Order provides rather cryptically for a 90-day review period to determine "whether any actions taken to address the risks to the security and welfare of the United States presented by permitting any category of refugees to enter this country should be modified or terminated..."  Politico reports on the meaning of this provision as provided by administration officials:

The order initiates a new 90-day review period for the administration to conduct an “in-depth threat assessment” of the 11 countries, according to a senior administration official.

The administration did not disclose the 11 countries, but based on statements from senior administration officials they appear to be: Egypt, Iran, Iraq, Libya, Mali, North Korea, Somalia, South Sudan, Sudan, Syria and Yemen. All except for North Korea are majority-Muslim.

During the 90-day review period, refugee admissions from the 11 nations will be permitted on a case-by-case basis if the person’s entry is in the national interest and “poses no threat to the security or welfare of the United States,” the official said.

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.