Recent Articles of Interest

From SSRN:

• Philip J. Candreva, Playground or Church? Implications for Public Administration from Trinity Lutheran v. Comer, (Public Administration Review, Forthcoming).
• Julie Ringelheim, State Religious Neutrality as a Common European Standards? Reappraising the European Court of Human Rights Approach, (Oxford Journal of Law and Religion, Vol. 6, no.1, p. 1-24 (2017)).
• Scott W. Gaylord, Is a Cake Worth a Thousand Words? Masterpiece Cakeshop and the Impact of Antidiscrimination Laws on the Marketplace of Ideas, (Tennessee Law Review, Vol. 85, Forthcoming).
• Mark Strasser, Obergefell's Legacy, (24 Duke Journal of Gender Law & Policy 61-88 (2016)).

From SmartCILP:

• Heidi Liu & Caleb C. Wolanek, Applying Strict Scrutiny: An Empirical Analysis of Free Exercise Cases, 78 Montana Law Review 275-312 (2017).
• Symposium, The Teachings of Pope Francis: Toward a Vision of Social Justice and Sustainable Capitalism? (Introduction by Steven W. Bender; articles by Michael Kaufman, Steven A. Ramirez, Nicholas Capaldi, Gilbert Paul Carrasco, Iryna Zaverukha, Russell Powell, Dean Vincent Rougeau, Amelia J. Uelmen). 40 Seattle University Law Review 1167-1415 (2017).
• Rev. John C. Lentz Jr., The Bystander in the Bible, 2017 Utah L. Rev. 661-705.
• Marcia L. McCormick, Religious Privilege to Discriminate as Religious Freedom: From Charitable Choice to Faith Based Initiatives to RFRA and FADA, 56 Washburn Law Journal 229-243 (2017).
• John R. Dorocak, How Might a Church's Tax-Exempt Status (and Other Advantages) Be Revoked Procedurally for Opposition to Same-Sex Marriage or Be Defended Possibly as Free Exercise of Religion?, [Abstract], 53 Willamette Law Review 161-184 (2017).
• Sarah M. Stephens, Freedom From Religion: A Vulnerability Theory Approach to Restricting Conscience Exemptions in Reproductive Healthcare, 29 Yale Journal of Law & Feminism 93-121 (2017).

Pakistan Troops Clash With Islamic Protesters Who Accuse Law Minister of Blasphemy

According to a report yesterday from BBC News, the government of Pakistan has deployed troops to the city of Islamabad to deal with protesters who have been blocking a key highway interchange for several weeks.  Protesters from the Islamist Tehreek-i-Labaik Ya Rasool Allah Party  are demanding the firing of Law Minister Zahid Hamid, claiming that he is guilty of blasphemy because of a provision in his 2017 Election Reform Bill passed by the National Assembly.

Here is the issue, as explained by Daily Pakistan. Under prior law, the nomination form that a candidate for office was required to complete included the following for all Muslim candidates:

I, the above mentioned candidate, solemnly swear that--

(i) I believe in the absolute and unqualified finality of the Prophethood of Muhammad (Peace be upon him), the last of the prophets and that I am not the follower of anyone who claims to be a Prophet in any sense of the word or of any description whatsoever after Prophet Muhammad (Peace be upon him), and that I do not recognize such a claimant to be Prophet or a religious reformer, nor do I belong to the Qadiani group or the Lahori group or call myself an Ahmadi.

In the 2017 legislation, this statement became an unsworn declaration by the candidate. Hamid said that this was a clerical error, and earlier this month Pakistan's National Assembly amended the 2017 Bill to restore this anti-Ahmadi provision as a sworn statement in the candidate nomination form. (TheNation).  That apparently did not assuage protesters' objections.  AP reports that at least 6 people were killed and 200 wounded in clashes yesterday between police and protesters in Islamabad.  Other opposition members of Parliament have different kinds of objections to other parts of the 2017 Bill.

UPDATE: Reuters (11/28) reports on the negotiated settlement of the conflict, though the military's role in the negotiations has raised questions.

Recent Prisoner Free Exercise Cases

In Brooks v. Walsh, (9th Cir., Nov. 22, 2017), the 9th Circuit upheld a qualified immunity defense in an inmate's suit because "it would not have been clear to every reasonable official that it was unlawful to require Brooks to fill out a Faith Group Affiliation Declaration form in order to reinstate his participation in the Common Fare diet after Brooks' voluntary withdrawal."

In King v. Stach, 2017 U.S. Dist. LEXIS 190788 (WD WA, Nov. 17, 2017), a Washington federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 191891, Oct. 19, 2017) and dismissed a Muslim inmate's complaint that unsanitary conditions in his safety/ observation cell made it impossible for him to perform his prayers, and that a corrections officer told him that he would be better off praying to Jesus.

In Veach v. Henderson County Detention Center, 2017 U.S. Dist. LEXIS 193177 (WD KY, Nov. 22, 2017), a Kentucky federal district court dismissed an inmate's complaint that on one occasion he was not given his Jewish meal tray.

In Rivera v. Davey, 2017 U.S. Dist. LEXIS 193607 (ED CA, Nov. 22, 2017), a California federal magistrate judge ordered dismissal unless an amended complaint is filed of an inmate's complaint that he was denied equal access to the facility's chapel for Jewish prayer services and holy day events.

Catholic Bishops Oppose Parts of Senate's Tax Reform Draft

Earlier this week, the chairman of the U.S. Conference of Catholic Bishops' Committee on Domestic Justice and Human Development issued a letter (full text) (press release)  criticizing the current version of the Senate's Tax Cuts and Jobs Act.  The letter calls for the Senate to amend its draft "to better ensure a just and moral framework for all."  While supporting some aspects of the bill, the Bishops expressed concern over a number of the provisions, analyzing them in light of six moral principles the Bishops had set fort in a statement on tax reform last October. Many of the criticisms focus on "care for the poor and concern for families."  Among the specific concerns expressed were opposition to repeal of the Affordable Care Act mandate without more comprehensive health care reform; concern that families with more than three children will find themselves in a worse tax situation that at present; concern that stricter rules regarding children’s social security numbers for the Child Tax Credit will make it difficult for immigrants to receive the benefit; and inadequate tax incentives for charitable giving.

Federal Court Strikes Texas' "Dismemberment Abortion" Ban

In Whole Woman's Health v. Paxton, (WD TX, Nov. 22, 2017), a Texas federal district court struck down Texas' ban on abortions performed through the standard dilation and evacuation procedure-- a procedure that the Texas law terms "dismemberment abortions."  The court said, in its 27-page opinion:

... [T]he Act prohibits the performance of an outpatient standard D&E abortion unless fetal demise occurs in utero before the fetus is removed from the woman. It is also undisputed that after approximately 15 weeks of pregnancy and before a fetus is viable, nationwide the most common second-trimester abortion is a standard D&E without inducing in utero fetal demise....

... [T]he State's legitimate interest in fetal life does not allow the imposition of an additional medical procedure on the standard D&E abortion  procedure not driven by medical necessity. Here the State's interest must give way to the woman's right. The Act does more than create a structural mechanism by which the State expresses profound respect for the unborn. The Act intervenes in the medical process of abortion prior to viability in an unduly burdensome manner.

Courthouse News reports on the decision. [Thanks to Scott Mange for the lead.]

UN Criminal Tribunal Convicts Mladić of Genocide and Crimes Against Humanity In Bosnian Conflict

Yesterday, in its final Trial Judgment, the United Nations International Criminal Tribunal for the Former Yugoslavia announced that Ratko Mladić, former Commander of the Bosnian Serb Army, has been found guilty of participating in joint criminal enterprises that committed genocide, crimes against humanity and violations of the laws or customs of war during the years 1992 to 1995.  The Tribunal, after a trial that extended over four years, found Mladić guilty on 10 of the 11 counts brought against him, including his participation in a joint criminal enterprise (JCE) to eliminate the Bosnian Muslims in Srebrenica:

The Chamber found that Mladić intended to carry out the objective of the Srebrenica JCE by destroying the Bosnian Muslims in Srebrenica, by killing the men and boys and forcibly removing the women, young children, and some elderly men. The Chamber therefore found Mladić guilty of genocide, persecution, murder, extermination, and the inhumane act of forcible transfer.

The Tribunal rejected a charge of genocide in other municipalities, though it convicted of crimes against humanity and violations of the laws or customs of war in those municipalities.

The Tribunal sentenced Mladić to life in prison.  The judgment may be appealed to the International Residual Mechanism for Criminal Tribunals.

The Criminal Tribunal yesterday also released a summary of the trial judgment and videos (Part I, Part II) of the Tribunal's reading of the judgment.  All the documents in the case, including the indictments and the trial transcripts are available online.  Voice of America reports on the decision.

President Trump's Thanksgiving Proclamation

Today is officially Thanksgiving.  The Thanksgiving Day 2017 Proclamation issued last week by President Trump sets the date.  It also recounts the history of the holiday and then goes on, in part, to say:

Today, we continue to celebrate Thanksgiving with a grateful and charitable spirit.  When we open our hearts and extend our hands to those in need, we show humility for the bountiful gifts we have received.  In the aftermath of a succession of tragedies that have stunned and shocked our Nation -- Hurricanes Harvey, Irma, and Maria; the wildfires that ravaged the West; and, the horrific acts of violence and terror in Las Vegas, New York City, and Sutherland Springs -- we have witnessed the generous nature of the American people.  In the midst of heartache and turmoil, we are grateful for the swift action of the first responders, law enforcement personnel, military and medical professionals, volunteers, and everyday heroes who embodied our infinite capacity to extend compassion and humanity to our fellow man.  As we mourn these painful events, we are ever confident that the perseverance and optimism of the American people will prevail.

...  We also offer a special word of thanks for the brave men and women of our Armed Forces.... As one people, we seek God's protection, guidance, and wisdom, as we stand humbled by the abundance of our great Nation and the blessings of freedom, family, and faith.

9th Circuit: Religious Sect's Attempt to Extort Land and Recruit May Create Basis For Asylum

In Singh v. Sessions, (9th Cir., Nov. 15, 2017), the U.S. 9th Circuit Court of appeals held that an immigration judge was incorrect when he rejected claims for asylum and withholding of removal by Harbans Singh who in India had suffered at the hands of the Dera Sacha Sauda which attempted to extort his land and recruit him for membership.  The court held that this could create a sufficient nexus to find religious or political persecution since "Singh’s refusal to join the DSS was inherently an act of religious expression." The court remanded the case for findings on additional issues. India West reports on the decision.

Another Court Enjoins Trump's Transgender Military Ban

Agreeing with a decision last month by a D.C. federal district court (see prior posting), yesterday in Stone v. Trump, (D MD, Nov. 21, 2017), a Maryland federal district court issued a preliminary injunction against President Trump's ban on transgender individuals serving in the military.  The court said in part:

President Trump’s tweets did not emerge from a policy review, nor did the Presidential Memorandum identify any policymaking process or evidence demonstrating that the revocation of transgender rights was necessary for any legitimate national interest. Based on the circumstances surrounding the President’s announcement and the departure from normal procedure, the Court agrees with the D.C. Court that there is sufficient support for Plaintiffs’ claims that “the decision to exclude transgender individuals was not driven by genuine concerns regarding military efficacy.”

Going beyond the D.C. decision, the court found that plaintiffs have standing to challenge the ban on military spending for sex reassignment surgery and enjoined the Sex Reassignment Surgical Directive as well as the Retention and Accession Directives, pending final resolution of the lawsuit. Washington Post reports on the decision.

Court Refuses To Dismiss Constitutional Challenges To City's Civil Rights Law

In Country Mill Farms v. City of East Lansing, 2017 U.S. Dist. LEXIS 191658 (WD MI, Nov. 16, 2017), a Michigan federal district court refused to dismiss a number of plaintiff's constitutional challenges to a city's civil rights ordinance. Vendor Guidelines for East Lansing's Farmers' Market required vendors to comply with the civil rights ordinance as a general business practice. Country Mill Farms was denied a vendor permit because, while it hosts weddings at its orchard, it refuses on religious grounds to host same-sex weddings.  It announced its policy in a Facebook post.

The court allowed Country Mill to move ahead with an overbreadth challenge to a portion of the ordinance, saying in part:

The City is wrong that the Ordinance regulates only conduct. The Ordinance also regulates speech. Section 22-32 of the Code defines "harass" as including "communication which refers to an individual protected under this article." Section 22-31 prohibits harassment of any person based on a list of characteristics. And, Section 22-35(b)(2) prohibits the printing and publishing of certain statements and signs based on their content.

The court also refused to dismiss plaintiff's Free Exercise and Establishment Clause challenges (as well as an unconstitutional conditions challenge), saying in part:

Plaintiffs have alleged sufficient facts to state a plausible claim for a violation of their rights under the Free Exercise Clause. Plaintiffs have pleaded facts to support a claim that the City enacted a generally applicable and neutral policy, which was then used to target Plaintiffs' religiously-motivated conduct. The Ordinance did not apply to Plaintiffs in 2016. After the City learned that Plaintiffs would not hold same-sex weddings on their farms because of Plaintiffs' religious beliefs, the City amended the Vendor Guidelines to incorporate the neutral and generally applicable law and applied it to Plaintiffs. As pled, the City's action is a "veiled cover for targeting belief or a faith-based practice." ...

Plaintiffs have pled sufficient facts to state a plausible claim under the Establishment Clause. The facts in the complaint allow the Court to infer that the predominant purpose of the changes to the Vendor Guidelines was motivated by the disapproval of Plaintiffs' religious beliefs.

Various other challenges to the ordinance were dismissed. (See prior related posting.)

US Asks Supreme Court For Full Stay Pending Appeal of Injunction Against 3rd Travel Ban

As previously reported, a week ago the U.S. 9th Circuit Court of Appeals stayed in part the preliminary injunction issued by a Hawaii federal district court against enforcement of President Trump's third travel ban.  Yesterday, the government filed an application (full text) in the case (Trump v. State of Hawaii) seeking to have the preliminary injunction stayed completely while the case works its way through appeals to the 9th Circuit and to the Supreme Court.  According to a report from SCOTUSblog, the Justices have asked the challengers to file a response to the government's application by Nov. 28.

Court Strikes Down Health Clinic Buffer Zone

In Turco v. City of Englewood, New Jersey, (D NJ, Nov. 14, 2017), a New Jersey federal district court struck down as overbroad a city ordinance creating an 8-foot buffer zone around health care and transitional facilities.  The ordinance was a response to militant activists and aggressive protesters who congregated outside an Englewood abortion clinic. The court said in part:

Defendant created a sweeping regulation that burdens the free speech of individuals, not just in front of the Clinic, but at health care and transitional facilities citywide. To meet the narrowly-tailored requirement, Defendant must create an Ordinance that targets the exact wrong it seeks to remedy.

Liberty Counsel issued a press release announcing the decision.

Canadian Christian Couple Sues Over Alberta's Policy On Adoptions

In a lawsuit filed in Canada at the beginning of this month, an Evangelical Christian couple is challenging a decision by the Province of Alberta's Child and Family Services to refuse to approve them to adopt a child.  the refusal stemmed from the couple's Biblical views on marriage, sexuality and gender.  The complaint (full text) in C.D and N.D. v. Province of Alberta, (Q.B. AL, filed 11/1/2017), says that "Child and Family Services considered the Applicants' religious beliefs regarding sexuality a 'rejection' of children with LGBT sexual identities...."  It contends that the decision violates their rights under Canada's Charter of Rights and Freedoms. The Justice Centre for Constitutional Freedoms issued a press release announcing the filing of the lawsuit.

Public Shelter's "Blessing of the Animals" Challenged In Court

An Atheist group last week filed suit in a New Jersey federal district court challenging a county-run animal shelter's hosting for the second year in a row of a Blessing of the Animals event.  The complaint (full text) in American Atheists, Inc. v. Bergen County, (D NJ, filed 11/13/2017), objects to the use of public resources and employee time to promote and host a ritual that is performed by Franciscan clergy annually in honor of St. Francis of Assissi. Plaintiffs claim that the county has violated the Establishment Clause, the Equal Protection Clause and several provisions of the New Jersey Constitution.  American Atheists issued a press release announcing the filing of the lawsuit.

Cert. Petition Filed In Suit Over Police Investigation Interference With Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in Sause v. Bauer, (cert. filed 11/17/2017).  In the case, the U.S. 10th Circuit Court of Appeals dismissed on qualified immunity grounds a suit for damages alleging that police who were investigating a noise complaint violated plaintiff's 1st Amendment rights when an officer who had come to her home ordered her to get up and stop praying. (See prior posting.)  First Liberty issued a press release announcing the filing of the petition for review.

Pro-Life Group Sues Over City's Enforcement of Sign Ordinance

A suit was filed last week in a North Carolina federal district court by an anti-abortion group which contends that the city of Charlotte acted unconstitutionally when it applied an ordinance directed at preventing installation of permanent or semi-permanent signs and flyers in the public right of way to prevent plaintiffs' display of placards. The complaint (full text) in Cities4Life, Inc. v. City of Charlotte, (WD NC, filed 11/17/2017) alleges in part:

Defendants, through their enforcement of City Code § 10-212, prohibit speakers from resting their signs on the ground while they are assembled outside of abortion facilities and thereby restrict Plaintiffs’ right to free speech on significant portions of land. This restriction does not apply to many other types of signs whose content is different from those used by Plaintiffs. Defendants thus unconstitutionally restrict Plaintiffs’ rights because of the pro-life messages their signs convey.

Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Preyanun Steannopkao, Phramaha Boonsri Yanavuddho, Suchao Ploychum & Chamnong Kanthik, An Integration of Buddhadharma in Performing Duties of Thai Lawyers, (PSAKU International Journal of Interdisciplinary Research (PSAKUIJIR), Vol. 5, No. 2, (July-December 2016)).
• Richard Albert & Yaniv Roznai, Religion, Secularism and Limitations on Constitutional Amendment, (Edward Elgar Research Handbook on Law & Religion (Rex Ahdar, editor, 2018 Forthcoming)).
• Gautam Bhatia, Equality of Opportunity, Group Subordination, and the Directive Principles: State of Kerala vs N.M. Thomas, (November 15, 2017).
• Andrew Koppelman, Entertaining Satan: Why We Tolerate Terrorist Incitement, (Fordham Law Review, Vol. 86, No. 2, 2017).
• Timothy Zick, Restroom Use, Civil Rights, and Free Speech ‘Opportunism’, (Ohio State Law Journal, Forthcoming).
• Mohammad Fadel, Fiduciary Principles in Classical Islamic Law Systems, (Oxford Handbook of Fiduciary Law, edited by Robert Sitkoff et. al. (Forthcoming)).
• Asmat Ali Khan, Marrying Without the Consent of the Wali (a Case Study of Pakistan) Compatibility of Pakistani Family Laws with UDHR, (November 8, 2017).

From SmartCILP:

• David B. Rosengard, "Three Hots and a Cot and a Lot of Talk": Discussing Federal Rights-Based Avenues for Prisoner Access to Vegan Meals, 23 Animal Law Review 355-403 (2017).
• John Weber, Protecting Against Discrimination or Violating the Freedom of Religion? Balancing One of Americans' Most Important Liberties, [Abstract],46 Journal of Law & Education 415-424 (2017).

Trump Adds 5 Names To List of Potential Supreme Court Nominees

On Friday, just before White House Counsel Donald F. McGahn delivered the Barbara K. Olson Memorial Lecture at the Federalist Society National Lawyers Convention, the White House issued a release announcing the addition of five names to the President's list of potential Supreme Court nominees. Among the five is Amy Coney Barrett who on Oct. 31 was confirmed for a position on the 7th Circuit after controversy over her views on reproductive rights, abortion, LGBTQ rights, as well as controversy over her statement in a 1988 law review article urging Catholic judges to recuse themselves in capital cases because of Catholic teaching opposing capital punishment. (See prior posting.) Other new names on the President's list are: Britt C. Grant (Georgia Supreme Court Justice); Brett M. Kavanaugh (Judge on the D.C. Circuit);  Kevin C. Newsom (11th Circuit Judge); and Patrick Wyrick (Oklahoma Supreme Court Justice).  The Hill reports on these developments.

Recent Prisoner Free Exercise Cases

In Grief v. Quay,  (2d Cir., Nov. 13, 2017), the 2nd Circuit concluded that a district court should not have dismissed as conclusively non-religious an inmate's claim that stuffed animals are necessary for his religious practice.

In Holt v. Givens, 2017 U.S. Dist. LEXIS 186752 (ND AL, Nov. Nov. 13, 2017),  an Alabama federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 187165, Oct. 17, 2017) and dismissed an inmate's complaint that his prayer oil was seized as contraband.

In Moon v. Jordan, 2017 U.S. Dist. LEXIS 187012 (ED MO, Nov. 13, 2017), a Missouri federal district court dismissed a Muslim inmate's complaint that he was not provided an Arabic language Qur'an, a clock for prayer time, a prayer rug, a bottle for cleaning himself after using the restroom, televised Jumu'ah services, or an Imam, and was not permitted to wear a Kufi.

In Bynum v. Poole, 2017 U.S. Dist. LEXIS 187453 (MD NC, No. 13, 2017), a North Carolina federal magistrate judge recommended dismissing a Muslim inmate's complaint that Jumu'ah services were cancelled on one Friday.

In Hewitt v. Johnson, 2017 U.S. Dist. LEXIS 187649 (D SC, Nov. 14, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 187901, Oct. 26, 2017) and dismissed on qualified immunity grounds denial of an inmate's request for a kosher diet because authorities found his professed belief insincere.

In Muslim v. Carmichael, 2017 U.S. Dist. LEXIS 188522 (WD NC, Nov. 14, 2017), a North Carolina federal district court allowed a Muslim inmate to move ahead wit his damage claim for denial of a Kosher diet and failure to provide an Imam to lead prayer services.

In Johnson v. Fields, 2017 U.S. Dist. LEXIS 189448 (WD NC, Nov. 16, 2017), a North Carolina federal district court upheld disciplinary sanctions that deprived an inmate of his Bible for 24 days.

In Meza v. California Department of Corrections and Rehabilitation, 2017 U.S. Dist. LEXIS 189996 (ED CA, Nov. 15, 2017), a California federal magistrate judge recommended dismissing a Catholic inmate's complaint that because of his alleged gang affiliation he was not allowed to attend his brother's funeral off prison grounds.

In Shabazz v. Secretary Department of Corrections, 2017 U.S. Dist. LEXIS 190725 (MD FL, Nov. 17, 2017), a Florida federal district court issued a temporary restraining order preventing prison authorities from requiring an inmate to shave his beard that he wears for religious reasons.

Sacristan's Suit Dismissed On Ministerial Exception Grounds

In Vosney v. Archdiocese of Hartford, 2017 Conn. Super. LEXIS 4633 (CT Super., Oct. 13, 2017), a Connecticut trial court dismissed on "ministerial exception" grounds a suit by a former administrative assistant and sacristan of a Catholic Church in Connecticut. Plaintiff had claimed that his hours of employment were severely reduced as retaliation for his opposing discriminatory employment practices.