Tuesday, December 05, 2017

Transcript of Oral Arguments In Masterpiece Cakeshop Is Now Available

The transcript (full text) of today's oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is now available.  Amy Howe at SCOTUSblog has posted an analysis of the argument.  She speculates that Justice Kennedy holds the key vote. She also observes:
[M]any of the more liberal justices’ questions seemed to focus on trying to convince their more conservative colleagues that, even if they might be inclined to vote for Masterpiece, it would be next to impossible to write a ruling for the baker that did not, as Justice Stephen Breyer put it, “undermine every civil rights law since year 2.”

SCOTUS Will Hear Arguments In Masterpiece Cakeshop Case Today

The U.S. Supreme Court this morning will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the widely followed case that pits the religious and free speech rights of a Christian bakery owner against the rights of a same-sex couple under Colorado's public accommodation law.  SCOTUSblog has a preview of the arguments, as well as a case page with links to the many briefs filed in the case, to the opinion below and to extensive commentary.  The high profile which the case has assumed is encapsulated in this deck headline from the Christian Science Monitor:
As evidenced by the people who began camping outside the high court for a seat at Tuesday’s oral arguments, the Masterpiece Cakeshop case seems destined to be a historic ruling – with both sides warning that defeat could bring potentially seismic consequences.
Daily Signal has a profile of one of the lawyers who will be arguing before the court today.  The transcript of the oral arguments should become available later today.  I will post a link to it at that time.

Settlement Reached In Correctional Employee's Suit Over Religious Curriculum for Inmates

The state of Tennessee last month agreed to a settlement of $45,948, plus up to $35,000 in attorneys' fees, in a suit that was brought by an employee of a state corrections agency who complained that the program he was required to teach to inmates was heavily religious. The program was based on the book This Ain’t No Practice Life by Michael Burt  Also under the agreement, the employee will leave the agency next June. (Full text of settlement agreement).  The agreement followed a federal district court's entering of a preliminary injunction in favor of the employee last February.  In Baker v. State of Tennessee, (MD TN, Feb. 17, 2017), the court, finding a strong likelihood of an Establishment Clause violation, said:
The fact that the Coaching Program as a whole may have a secular purpose of rehabilitating TDOC inmates and preparing them for release and reentry does not mitigate the fact that there is likely no secular purpose to the inclusion of religious-based content in the Coaching Program’s materials.
Reporting on the settlement, WSMV News adds that the challenged program, which has now been canceled, cost the state $300,000 to implement.

Suit Challenges City's Reparative Therapy Ban

A suit was filed yesterday in Florida federal district court challenging the constitutionality of a Tampa ordinance that prohibits licensed counselors from practicing conversion therapy efforts on minors. Conversion therapy is defined in the ordinance as "efforts to change behaviors. gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex." The complaint (full text) in Vazzo v. City of Tampa, Florida, (MD FL, filed 12/4/2017), contends that the ordinance violates plaintiffs' free speech and free exercise rights as well as rights under various Florida statutes.  Among other things, it argues that the law violates the First Amendment rights of plaintiffs' clients to receive information.  Liberty Counsel issued a press release announcing the filing of the lawsuit.

Monument Challenges Dismissed For Lack of Standing

In American Atheists, Inc. v. Levy County, (ND FL, Dec. 3, 2017), a Florida federal district court dismissed on standing grounds a challenge to a Ten Commandments monument in a courtyard outside county government buildings, as well as a challenge to the county's refusal to allow placement in the same area of a granite bench dedicated to non-believers.  Dismissing plaintiffs' Establishment Clause challenge to the Ten Commandments, the court said in part:
Plaintiffs have failed to meet the injury-in-fact requirement because [plaintiff] Mr. Sparrow is unlikely to encounter the Monument in the future and because his only encounter with the Monument in the past was during a purposeful visit.
Dismissing an equal protection challenge to the refusal of a permit for the monument to atheists, the court held that "Plaintiffs lack standing because they have failed to show redressability."  Their proposal did not comply with guidelines for permissible monuments.  The court concluded:
Had counsel for Plaintiffs devoted more thought to these [standing] issues, then perhaps this Court could have addressed the merits of this dispute. But counsel didn’t, so this case must be dismissed for lack of standing.
Liberty Counsel issued a press release announcing the decision.

Monday, December 04, 2017

Supreme Court Denies Review In Houston Spousal Benefits Case

The U.S. Supreme Court today denied certiorari in Turner v. Pidgeon (Docket No. 17-424, cert. denied 12/4/2017) (Order List).  In the case, the Texas Supreme court gave two Houston taxpayer-voters another chance to challenge the legality of the city's extending spousal benefits to same-sex married couples. (See prior posting.)  AP reports on the Court's denial of review.

Supreme Court Stays Preliminary Injunction Against Trump's 3rd Travel Ban

The U.S. Supreme Court today granted a complete stay of the preliminary injunction that a Hawaii federal district court had issued against President Trump's third travel ban. The 9th Circuit had lifted the ban in part. (See prior posting.)  But today's order (full text) in Trump v. Hawaii (Sup. Ct., Dec. 4, 2017) stays the injunction completely while the case is being appealed to the 9th Circuit and then to the Supreme Court.  The Supreme Court noted that the 9th Circuit is handling the appeal on an expedited basis.  Justices Ginsburg and Sotomayor indicated that they would have denied the stay application.  Washington Post reports on today's ruling by the Supreme Court. [corrected]

UPDATE: Later today the U.S. Supreme Court issued a similar stay while appeals are pending of a preliminary injunction against the third travel ban that has been issued by a Maryland federal district court. (See prior posting.)  Today's order (full text) comes in Trump v. International Refugee Assistance Project, (Sup. Ct., Dec. 4, 2017).  Again Justices Ginsburg and Sotomayor disagreed with the majority.

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:
From SSRN (Comparative religion and law, jurisprudence):
From SSRN (Islamic law and society):
From SmartCILP:

Sunday, December 03, 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. Wrenn2017 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.

Saturday, December 02, 2017

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).

Friday, December 01, 2017

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.

Thursday, November 30, 2017

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.

Wednesday, November 29, 2017

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.