Suit Over Mosque Settlement Remanded To State Court

Litigation over site plan approval for construction of a mosque in Bernards Township, New Jersey continues. In May, the Township reached settlements with the Islamic Society of Basking Ridge and with the U.S. Justice Department under which the Township will permit the mosque to be built. (See prior posting.) However, township residents continue to challenge the settlement. (See prior related posting.)  One of the suits contends that proper notice was not given of the meetings that approved the settlements.  That suit was originally filed in state court, but removed to federal court by defendants.  Now in Smith v. Township of Bernards, (D NJ, Nov. 29, 2017), the New Jersey federal court to which the case was removed has remanded the case to state court.  It found that the suit does not raise any federal law issue, even though one of the settlements was incorporated into a federal court order. Thomas More Law Center issued a press release announcing the court's decision.

Recent Articles of Interest

From SSRN:

• Ronald Niezen, Power Through Testimony: Reframing Residential Schools in the Age of Reconciliation (Foreword), (March 2017, ISBN: 978-0774833899).
• Katherine M. Franke & Elizabeth Reiner Platt, Amicus Brief to U.S. Supreme Court in Masterpiece Cakeshop v. Colorado Human Rights Commission, (Columbia Public Law Research Paper No. 14-566 (Oct. 2017)).
• Paul Johnson, Robert M. Vanderbeck & Silvia Falcetta, Religious Marriage of Same-Sex Couples: A Report on Places of Worship in England and Wales Registered for the Solemnization of Same-Sex Marriage, (November 24, 2017).
• Steven G. Calabresi, The Free Exercise of Religion, (Northwestern Public Law Research Paper No. 17-26 (Nov. 2017)).
• Douglas NeJaime & Reva Siegel, Religious Accommodation, and Its Limits, in a Pluralist Society, (Religious Freedom and LGBT Rights: Possibilities and Challenges for Finding Common Ground (Robin Fretwell Wilson & William N. Eskridge, Jr. eds., Cambridge Univ. Press 2018 Forthcoming).
• Santiago Legarre, A New Natural Law Reading of the Constitution, (78:3 Louisiana Law Review (2018 Forthcoming)).
• Ellen P. Aprill, Amending the Johnson Amendment in the Age of Cheap Speech, (University of Illinois Law Review On-Line (Forthcoming)).
• Khaled A. Beydoun & Abed Ayoub, Executive Disorder: The Muslim Ban, Emergency Advocacy, and the Fires Next Time, (22 Michigan Journal of Race & Law 215 (2017)).
• Abenaa Owusu-Bempah, Hate Crime and the Legal Process: Options for Law Reform, (LSE Law - Policy Briefing Paper No. 29 (Nov. 2017)).
• Robert Leckey, Judging in Marriage's Shadow, (Feminist Legal Studies, Forthcoming).

From SSRN (Comparative religion and law, jurisprudence):

• Jainlin Chen, Chapter 2, The Law and Religious Market Theory: China, Taiwan and Hong Kong, (Cambridge University Press 2017).
• Joseph E. David, Love, Law and the Judeo-Christian Separation-Individuation,(November 15, 2017).
• Joseph E. David, Divinity, Law, and the Legal Turn in the Study of Religions, (May 15, 2017).
• Lua K. Yuille, Creating a Babel Fish for Rights & Religion: Defining 'Rights' Through Sacred Texts, (25 Transnational Law & Contemporary Problems 309-361 (2016)).

From SSRN (Islamic law and society):

• Intisar A. Rabb, The Curious Case of Bughaybigha, 661–883: Land and Leadership in Early Islamic Societies, (Justice and Leadership in Early Islamic Courts, Edited by Intisar A. Rabb and Abigail Krasner Balbale (2017)).
• Fajri Matahati Muhammadin & Hanindito Danusatya, De-Secularizing Legal Education in Indonesia: Examining the 'Introduction to Jurisprudence' Textbooks on Norm Classification, (International Seminar on Islamic Civilization and Thought (2017), Conference Proceeding).

From SmartCILP:

• Shai Silverman, Before the Godly: Religious Arbitration and the U.S. Legal System, 65 Drake Law Review 719-779 (2017).
• Lucien J. Dhooge, The Equivalence of Religion and Conscience, [Abstract], 31 Notre Dame Journal of Law, Ethics & Public Policy 253-292 (2017).

Recent Prisoner Free Exercise Cases

In Eckstrom v. Beard, (9th Cir., Nov. 30, 2017), the 9th Circuit affirmed the dismissal of an inmate's claim that the prison's book policy violates his free exercise rights.

In Shaw v. Kaemingk, 2017 U.S. Dist. LEXIS 195018 (D SD, Nov. 28, 2017), a South Dakota federal district court allowed an inmate to move ahead with his complaint that authorities in numerous ways refused to accommodate his practice of Dorcha Cosàn as well as with his retaliation and other claims.

In Crowder v. Jones, 2017 U.S. Dist. LEXIS 195779 (SD IN, Nov. 29, 2017), an Indiana federal district court refused to find that a federal prison inmate had a Bivens implied private right of action against a prison chaplain for denial of a kosher diet.  The court relied largely on the Supreme Court's June 2017 decision in Ziglar v. Abbasi.

In Ali v. Duboise, 2017 U.S. Dist. LEXIS 196881 (ND OK, Nov. 30, 2017), an Oklahoma federal district court dismissed on qualified immunity grounds a Muslim inmate's complaint that he was told to pray only outside his cell and was threatened, pushed and locked up temporarily when he asked for a more specific location.

In Valerio v. Wrenn, 2017 U.S. Dist. LEXIS 196632 (D NH, Nov. 29, 2017), a New Hampshire federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 196999, Oct. 23, 2017) and allowed an inmate to move ahead with his complaint that his religious freedom was violated when he was subjected to a visual body cavity search in front of other inmates after being denied a privacy screen.

In Abreu v. Jaime, 2017 U.S. Dist. LEXIS 197323 (ED CA, Nov. 29, 2017), a California federal magistrate judge recommended dismissing an inmate's complaint alleging retaliation for appealing denial of Muslim prayers, and alleging denial of religious meals during a transfer.

In Kanatzar v. Cole, 2017 U.S. Dist. LEXIS 198067 (D KS, Dec. 1, 2017), a Kansas federal district court concluded that a Jewish inmate had adequately alleged a claim against two defendants for failure to provide properly prepared kosher food, and was given 30 days to file an amended complaint as to many other claims/

In Silverman v. Humboldt County Correctional Facility, 2017 U.S. Dist. LEXIS 198208 (ND CA, Dec. 1, 2017), a California federal magistrate judge allowed a Jewish inmate to move ahead with his claim seeking a kosher diet.

In Kollock v. Beemer, 2017 Pa. Commw. LEXIS 994 (PA Commnwlth. Ct., Nov. 30, 2017), a Pennsylvania appellate court rejected contentions by an inmate convicted of sexual offenses that the requirement he complete a program which includes admission of guilt in order to obtain parole violates his religious rights.  The inmate contended that this requires him to "bear false witness" against himself.

Suit Challenges Illinois Law Allowing Public Funds to Be Used To Cover Abortions

Last week, various Illinois right-to-life groups and several Illinois legislators filed a taxpayer lawsuit in state court challenging House Bill 40 which is scheduled to go into effect on January 1. The bill eliminates the prior ban on coverage for abortions by the state employees' insurance program and by the state's Medicaid program.  The law also eliminates a prior provision in state law that declared that an unborn child is a human being from the time of conception.  The complaint (full text) in Springfield Right to Life v. Norwood, (IL Cir. Ct., filed 11/30/2017) contends that funds cannot be expended on abortions because no appropriation has been made, and challenges the effective date of the law.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Senate Version of Tax Bill Does Not Include Johnson Amendment Repeal

Vox has made available a "preliminary version" of the final Senate tax reform bill  (full text) passed early Saturday morning.  Repeal of the Johnson Amendment that was part of the House version did not make its way into the version of the bill passed by the Senate.  This will be one of many differences between the House and Senate versions that will need to be resolved by the Conference Committee.

Developments In Church Eligibility For FEMA Aid

As previously reported, three Texas churches have filed suit in federal district court challenging FEMA's policy of refusing disaster aid for houses of worship. FEMA, which is in the process of reviewing its policy, has refused to answer the complaint despite the court setting a Dec.1 deadline. According to the Houston Chronicle, just before the deadline passed, a group of civil rights organizations filed an amicus brief defending FEMA's policy.  Three hours after that brief was filed, federal district judge Keith P. Ellison who was assigned to the case recused himself, without explanation.

Meanwhile, as reported by Christian Times, on Thursday the House Transportation and Infrastructure Committee approved and sent on to the full House H.R. 4460, the Disaster Recovery Reform Act (full text). Section 211 of that bill amends 42 USC Sec. 5172 to add:

A church, synagogue, mosque, temple, or other house of worship, and a private nonprofit facility operated by a religious organization, shall be eligible for [disaster relief] ..., without regard to the religious character of the facility or the primary religious use of the facility.

Canada Reports 2016 Hate Crime Statistics

Earlier this week, Statistics Canada released its report on Police-Reported Hate Crimes 2016, saying in part:

Police reported 460 hate crimes targeting religious groups in 2016, 9 fewer than in the previous year. These accounted for one-third of all hate crimes in Canada.

Following a notable increase in hate crimes against the Muslim population in 2015, police reported 20 fewer in 2016 for a total of 139. The decrease in police-reported hate crimes against Muslims was the result of fewer reported incidents in Quebec (-16), Alberta (-8) and Ontario (-6).

Similarly, after an increase in 2015, hate crimes against Catholics also decreased, from 55 to 27 in 2016. Ontario reported 16 fewer incidents, and declines were also seen in Quebec (-7) and the Atlantic provinces (-5).

In contrast, hate crimes against the Jewish population grew from 178 to 221 incidents. Increases were seen in Ontario (+31), Quebec (+11) and Manitoba (+7).

European Court Advocate General Opines On Eid al-Adha Slaughterhouses

In Moskeeën v. Gewest, (ECJ Adv. Gen., Nov. 30, 2017), the Advocate General of the European Court of Justice concluded in his recommendation to the court that Belgian authorities had not infringed the religious freedom of Muslims by ending the practice of creating temporary slaughterhouses to be used for Eid al-Adha.  His opinion reads in part:

90.      Inasmuch as it cannot, in my opinion, be held that any limitation of freedom of religion results from the general obligation to use approved slaughterhouses, the question of whether such a limitation is justified does not arise.

91.      Nevertheless, in the event that the Court of Justice does not support that conclusion and considers that the obligation to use approved slaughterhouses, which alone is being challenged in this case, constitutes an interference with freedom of religion in that it prevents practising Muslims from fulfilling their religious obligation during the Feast of the Sacrifice, I am of the opinion that there would then be no legitimate objective in the public interest such as might justify the existence of a limitation of that freedom.

The Court issued a press release summarizing the Opinion.

Believer In Mark of the Beast Entitled To Unemployment Comp

In Kaite v. Unemployment Compensation Board of Review, (PA Commnw. Ct., Nov. 29, 2017), a Pennsylvania appellate court reversed the Unemployment Compensation Board of Review and held that a suspended employee whose unemployment compensation claim was rejected was justified in refusing to comply with an employer's fingerprinting requirement. Petitioner Bonnie Kaite contended that "she was raised to believe that any marking on the hands or head is the mark of the devil and will prevent her from getting into heaven...."  The court went on to say:

The United States Supreme Court has held that a conditioning of the availability of benefits upon an employee’s willingness to violate a cardinal principle of her religious faith effectively penalizes the free exercise of her constitutional liberties. Sherbert v. Verner, 374 U.S. 398, 406 (1963).

Penn Live reports on the decision. [Thanks to Tom Rutledge for the lead.] 

Suit Challenging Indiana Charter School Law Mostly Survives Motion To Dismiss

In Indiana Coalition for Public Education v. McCormick, (SD IN, Nov. 29, 2017), an Indiana federal district court refused to dismiss standing and Establishment Clause challenges by an education advocacy group to the provision in Indiana's Charter School Act that gives religious institutions the power to authorize charter schools.  The court said in part:

Authorizers make important decisions about who may establish charter schools and under what circumstances a charter school may be established, which includes details such as the educational methodology the school will employ. Additionally, charter schools are publicly funded and, insofar as they draw students from public school corporations, their funding may result in a shift of public funds away from other schools. These decisions, when made by a religious institution, may raise Establishment Clause concerns....

The court however dismissed federal and state constitutional challenges to a provision that allows religious authorizers’ to receive an administrative fee of 3% of state funding.

Trump's Retweets of Islamophobic Videos Distress British Leaders

The Independent this morning reports that Donald Trump's retweeting of Islamophobic videos first posted by Jayda Fransen, deputy leader of the far-right Britain First movement, has caused consternation among British leaders. 

Suit In Belgium Challenges Wallonia's Ban On Kosher Slaughter

In Belgium yesterday, the Coordinating Committee of Jewish Organizations of Belgium (CCOJB) filed suit in the country's Constitutional Court challenging a law passed in May by the parliament of the Walloon Region that effectively bans kosher and halal slaughter.  A similar lawsuit is likely to be filed early next year challenging a similar law passed in July by the parliament of Flanders-- where half of Belgium's Jews live and where many kosher slaughtering facilities are located.  Reporting on the lawsuit, European Jewish Press quote the president of CCOJB who said:

Irrespective of its justification, a ban on kosher meat production sends a message to Belgian Jews that they can choose between living in Belgium and practicing their religion, but they cannot do both. It sends a clear message to Belgium’s Jewish and Muslim communities that they are not welcome here. This is a violation of Belgian constitutional principles,  EU law, and the freedom of religion enshrined as a fundamental right - we will challenge it as such, in Wallonia and in Flanders.”

While the law was pending, a regional court had questioned its constitutionality. (See prior posting.)

DC Archdiocese Sues Over Rejection of Christmas Season Bus Ads

The Washington, D.C. Catholic Archdiocese yesterday filed suit in federal district court against the Washington Metropolitan Area Transit Authority after WMATA rejected ads designed to be placed on the exterior of buses promoting the Archdiocese's "Find the Perfect Gift" Campaign.  The complaint (full text) in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (D DC, filed 11/28/2017), describes the ads:

the advertisements depict, in minimalist style, a starry night, with silhouettes of a small group of shepherds and sheep standing on a hill. All of the advertisements refer to an Internet site, FindThePerfectGift.org, which contains links to Mass schedules, opportunities for charitable service, information about religious holiday traditions, and reflections on the meaning of the Advent and Christmas seasons. The advertisements also refer to a social-media hashtag, #PerfectGift.

The WMATA advertising Guidelines prohibit ads that "promote or oppose any religion, religious practice, or belief."  The complaint alleges that the Guidelines as applied to this ad violate the Archdiocese's 1st amendment free speech and free exercise rights, RFRA, as well as denying it equal protection and due process.  The Archdiocese issued a press release announcing the filing of the lawsuit.

Magazine Profiles Christian Advocacy Organization

The Nation today published a long article titled The Christian Legal Army Behind ‘Masterpiece Cakeshop’: A special investigation into the rise of Alliance Defending Freedom.  Here is a short excerpt:

The overarching story highlighted in this substantial body of ADF’s briefs—most of which are available in public databases—is the organization’s painstaking construction, case by case and argument by argument, of a legal narrative asserting that Christians are under threat of persecution from the advance of LGBTQ and reproductive rights, as well as from secular schools and universities, and that the law must allow Christians to disregard, disobey, or even dismantle laws protecting those rights in order to protect their own rights to free speech and the free exercise of religion.

Indonesian Christians Get Temporary Stay of Deportation

In Devitri v. Cronen, (D MA, Nov. 27, 2017), a Massachusetts federal district court issued a temporary injunction barring the federal government from removing 51 Indonesian Christians who fear religious persecution if their final Orders of Removal are implemented. As explained by the court:

In 2010, Immigration and Customs Enforcement (“ICE”) instituted a humanitarian program called Operation Indonesian Surrender, through which Petitioners were granted Orders of Supervision, allowing them to seek employment and subjecting them to certain mandatory conditions. Petitioners also received temporary stays of removal that were renewed over multiple years. In the summer of 2017, these individuals were informed that they would be removed from the United States.

Petitioners claim that they need additional time to exercise their statutory right to move to reopen their cases based on changed country conditions that arose after their Orders of Removal became final. The court asked the government for additional briefing on how long the temporary injunction should remain in effect to give a reasonable time to file a motion to reopen.  ACLU issued a press release announcing the court's decision.

China Bans Tours To The Vatican

According to a report yesterday by UCA News, in China the State Tourism Bureau has sent a directive to travel agencies instructing them to end tours to the Vatican.  Travel agencies were instructed to remove the Vatican and St. Peter's Basilica from their list of tour destinations.  Any travel agency advertising those destinations will be subject to a fine equivalent to $45,430(US).  The directive apparently stems from the long simmering tensions between Beijing and the Holy See.

Abortion Clinic Buffer Zone Upheld

In Bruni v. City of Pittsburgh, (WD PA, Nov. 17, 2017), a Pennsylvania federal district court, in a case on remand from the 3rd Circuit (see prior posting), granted summary judgment to defendants in a case challenging Pittsburgh's ordinance that imposes a 15-foot buffer zone around abortion clinics and other health care facilities.  According to the court, "the undisputed evidence in this case demonstrates that the Ordinance places only a minimal burden on Plaintiffs’ First Amendment free speech rights."  The court went on:

Plaintiffs argue that the City should have considered any number of other alternatives prior to adopting the Ordinance, including targeted injunctions and/or the enforcement of antiharassment statutes.... [I]n light of the Court’s finding that the current law burdens very little speech to begin with, there is no reason to believe that any of these alternative measures would burden substantially less speech than does the current Ordinance.

BNA Daily Report for Executives [subscription required] reports on the decision.

White House Unveils This Year's Christmas Decorations

In a press release today, the White House announced that this year's White House Christmas decorations are themed "Time Honored Traditions." The press release and an ABC News report describe the decorations, selected by First Lady Melania Trump, in more detail. This year's family Christmas card, signed by the President, the First Lady and their son Barron, reads "Merry Christmas and Happy New Year."

Supreme Court Denies Review In School Board Prayer and Funeral Picketing Cases

Today the U.S. Supreme Court denied certiorari in American Humanist Association v. Birdville Independent School District, (Docket No. 17-178, cert. denied 11/27/2017). (Order List).  In the case, the 5th Circuit upheld a school board's practice of opening its meetings with presentations from students, which often involve a prayer.  It held that legislative prayer cases, not the decisions regarding school prayer, govern this situation. (See prior posting.)

The Supreme Court today also denied review in Phelps-Roper v. Ricketts, (Docket No. 17-427, cert. denied 11/27/2017). (Order List).  In the case the 8th Circuit upheld Nebraska's Funeral Picketing Law against both facial and as-applied challenges brought by members of the Westboro Baptist Church. (See prior posting.)

Massachusetts Court Will Hear Conservative Synagogue Suit Alleging Chabad Takeover

JTA reports on a lawsuit brought by members of a Sharon, Massachusetts Conservative Jewish synagogue that will be heard today in a  Massachusetts trial court.  Members of Temple Adath Sharon, in a lawsuit filed in November 2015, allege that Chabad of Sharon, which was experiencing financial difficulties, worked to have its members elected to the Conservative synagogue's board and as its officers in order to obtain a transfer of the synagogue's building and assets to Chabad.  It also claims that the April 2015 meeting that elected the board and officers was not properly announced and conducted. Chabad denies the allegations.