Australian Imams Publish Guidance For Muslim Witnesses In Judicial Proceedings

The Australian National Imams Council announced yesterday the release of a document titled Explanatory Note on the Judicial Process and Participation of Muslims (full text).  Prepared in cooperation with the Judicial Council of New South Wales, the document is designed to:

a) give practical guidance and explanation to members of the Australian Muslim community of the etiquette and behaviours expected of persons engaging in the judicial processes so that they may act consistently with these without compromising their religious beliefs; and,

b) provide information to judicial officers on Islamic concepts and practices as they relate to matters which may be raised in connection with Muslims participating in the court processes.

Among other things, the document says that there are no religious prohibitions on a Muslim standing up for the Magistrate or judge as a sign of respect.  It also announces:

It is not contrary to Sharia law for a woman to uncover her face when she is giving testimony in court, whether she is a witness in a case or is there to witness a deal, and it is not contrary to Sharia law for the Magistrate or Judge (male or female) to look at her in order to know or identify who she is, make assessments as to credibility where this is an issue and protect the rights of all concerned.

The document also outlines the appropriate way to swear in a Muslim witness. Daily Telegraph, reporting on the document, outlines some of the situations in Australian courts that led to the need for these clarifications.

Court Dismisses Establishment Clause Challenge To Tax Code

In Hinds v. United States Government, (ED MO, Dec. 11, 2017), a Missouri federal district court dismissed on various jurisdictional and procedural grounds a claim by by plaintiff that:

by virtue of the Tax Code, the Government has established an institutionalized faith and religion of taxism ...[and] that this institutionalized religion has the effect of endorsing, favoring, and promoting organized religions, which Plaintiff believes violates the Establishment and Free Exercise clauses of the Constitution.

Jewish Museum CFO Claims Religious Discrimination

The New York Post reported last week that the former chief financial officer of New York's Museum of Jewish Heritage has filed suit alleging that he was forced out of his position because he is Muslim.  According to the Post:

Mohad Athar says he was subjected to racial slurs and false performance reviews after a new chief executive officer, Michael Glickman, was hired in 2016.

Military Will Move Ahead With Transgender Enlistments

Yesterday, a Washington federal district court granted a preliminary injunction against President Trump's Memorandum that excludes transgender individuals from the military. The court in Karnoski v. Trump, (WD WA, Dec. 11, 2017), concluded that the Memorandum violates plaintiffs' equal protection, substantive due process and First Amendment rights, saying in part:

While Defendants identify important governmental interests including military effectiveness, unit cohesion, and preservation of military resources, they fail to show that the policy prohibiting transgender individuals from serving openly is related to the achievement of those interests.

The Washington state Attorney General issued a press release on the decision.

At least two other courts have previously issued similar injunctions. (See prior posting.)  Yesterday in one of those other cases, a D.C. federal district court judge refused to delay her January 1 deadline for the military to comply. (Washington Post).  The Department of Defense announced yesterday that the military will allow transgender enlistments beginning January 1. It will also reinstitute a 2016 policy that allows transgender enlistment only after 18 months of stability after treatment.

Settlement Reached In Suit Over Sale of Fetal Tissue

The Orange County, California District Attorney announced last week that it has obtained a settlement in an unlawful business practice lawsuit against two related companies that violated California and federal law provisions against sale for profit of fetal tissue.  The suit, California v. DV Biologics, LLC, was filed in California state court in October 2016. (Full text of complaint.) It asserts that the companies "obtained aborted fetus donations from Planned Parenthood and turned those donations into a profit-driven business." Under the settlement,  DV Biologics and DaVinci Biosciences will disgorge $7.78 million in profits which they will donate to  a non-profit academic and scientific teaching institution affiliated with a major U.S. medical school.  The companies also will pay civil penalties of $195,000 and will cease doing business in California.  Los Angeles Times reports on the settlement.

Christian Student Organization Sues University of Iowa Over Anti-Discrimination Rule

A Christian student organization, Business Leaders in Christ, brought suit yesterday against the University of Iowa challenging the University's de-registration of the organization.  The complaint (full text) in Business Leaders in Christ v. University of Iowa, (D IA, filed 12/11/2017), contends that the University objects to BLinC's requirement that its leaders agree to follow its Statement of Faith. The University concluded that the requirement violates the University's policy barring discrimination on the basis of sexual orientation or gender identity.  The University took action against the organization after a gay student who wanted to continue to pursue a same-sex relationship complained that he was not permitted to serve as vice president of BLinC.  The student organization's 20-count complaint contends that the University's action violates the 1st and 14th Amendments, as well as various other state and federal statutory and constitutional provisions. Becket issued a press release announcing the filing of the lawsuit.

Antagonists In Same-Sex Marriage Saga will Now Face Each Other In 2018 Election

In 2015, Rowan County, Kentucky clerk Kim Davis was at the center of the battle over same-sex marriage as she was held in contempt for refusing to allow her office to issue marriage licenses to same-sex coupled. (See prior posting.)  One of the individuals who was denied a marriage license was David Ermold.  Last week, Ermold filed papers to run against Davis for the Clerk position next year. Papers, of course, were filed in Davis' office.  The Luxora Leader reports:

... Ermold, alongside his now-husband, filled out the paperwork to run for office with Davis sitting across from him:

Davis smiled and welcomed them, chatting with them about the state retirement system and the upcoming Christmas holiday. She made sure Ermold had all of his paperwork and signatures to file for office, softly humming the old hymn ‘Jesus Paid It All’ as her fingers clacked across a keyboard.

When it was over, she stood and shook hands with Ermold, telling him: ‘May the best candidate win.'

More Challenges To FEMA's Policy On Disaster Aid To Religious Facilities

As three churches filed an appeal with the 5th Circuit (full text of Emergency Motion) after a Texas federal district court refused to enjoin a FEMA Policy Guideline that bars disaster relief grants for religious facilities, two Florida synagogues filed suit seeking to invalidate the same FEMA regulation. According to yesterday's Miami Herald, Chabad of Key West and Chabad of the Space Coast in Satellite Beach are seeking FEMA grants for repairs after damage from Hurricane Irma.  They contend that FEMA's policy violates their rights under the 1st Amendment and RFRA.

Fight Over Religious Artifacts Becomes Part of the Catalonian Independence Battle

An unanticipated development flowing from Spain's takeover of the Catalonian government is Spain's move to retrieve 44 religious artifacts housed in Catalonia’s Museum of Lleida. The Spanish government claims that nuns of a convent in Sijena illegally sold the rare artifacts to the Museum after the order moved to Barcelona. The Telegraph yesterday reported:

In 2015, after years of contradictory rulings and appeals, an Aragonese court found that the sales were illicit, and ordered the treasures returned. But Catalonia refused to comply, lodging an appeal which has yet to be ruled upon.

When that Catalan government was removed in November under Article 155 - which imposed direct rule in response to the illegal independence referendum - the Aragonese judge saw his chance, demanding that the return be approved by Spain's culture ministry.

The minister, Íñigo Méndez de Vigo, defended the sign-off, insisting it was not "adding to the fire" to comply with a court order.

It is expected that Spanish police will try to retrieve the artifacts today.

Recent Articles of Interest

From SSRN:

• Stephanie H. Barclay & Mark Rienzi, Constitutional Anomalies or As-Applied Challenges? A Defense of Religious Exemptions, (November 30, 2017).
• Blair A Major, Translating the Conflict over Trinity Western University's Proposed Law School, ((2017) 43:1 Queen's Law Journal [Forthcoming]).
• Andrea Pin, Balancing Dignity, Equality and Religious Freedom: A Transnational Topic, (Ecclesiastical Law Journal, Volume 19, Issue 3 September 2017, pp. 292-306).
• Haya Sandberg & Haim Sandberg, Dilemmas of Civil Tribunals in Formulating Their Positions Towards Religious Tribunals – The Case of Custody of Muslim Children, (5 Journal of Law, Religion and State 214-253 (2017)).
• Donald Paul Sullins, 'No Wedding's a Wedding Without a Cake': The History and Significance of the Wedding Cake, (October 24, 2017).
• Pierre-Alexandre Cardinal, The Modern and the Traditional; Islam, Islamic Law and Capitulations in Late Qajar Iran, (September 1, 2017).
• Herbert I. Lazerow, Holocaust Art Disputes: The Holocaust Expropriated Art Recovery Act of 2016, (The International Lawyer, Forthcoming).

From SmartCILP:

• Tanya Monforte, Broad Strokes and Bright Lines: A Reconsideration of Shari'a Based Reservations, 35 Columbia Journal of Gender & Law 1-69 (2017).
• Julie C. Suk, Equality After Brexit: Evaluating British Contributions to EU Antidiscrimination Law, 40 Fordham International Law Journal 1535-1552 (2017).
• Khaled A. Beydoun, On Islamophobia, Immigration, and the "Muslims Bans," 43 Ohio Northern University Law Review 443-458 (2017).

Recent Prisoner Free Exercise Cases

In Wilcox v. Brown, (4th Cir, Dec. 5, 2017), the 4th Circuit, reversing the district court in large part, held that an inmate had adequately stated a free exercise claim for denial of Rastafarian group religious services.

In Butts v. Martin, (5th Cir., Dec. 8, 2017), the 5th Circuit held that the district court had improperly dismissed a Jewish inmate's free exercise and retaliation claims growing out of a dispute about his wearing his yarmulke at a dinner.

In Ross v. Sandoval, 2017 U.S. Dist. LEXIS 198670 (D NV, Dec. 4, 2017), a Nevada federal district court allowed a Buddhist inmate to move ahead with his claim that he was denied a vegetable/ plant based diet.

In Cousins v. Lassiter, 2017 U.S. Dist. LEXIS 198816 (WD NC, Dec. 4, 2017), a North Carolina federal district court allowed a Rastafarian inmate who is seeking a vegan diet to move ahead with his challenge to regulations that bar him from changing his diet more than once each 90 days.

In Huapaya v. Davey, 2017 U.S. Dist. LEXIS 199128 (ED CA, Dec. 1, 2017), a California federal magistrate judge gave a Muslim inmate who claimed he was being prevented from attending religious services 30 days to file an amended complaint alleging a resultant substantial burden.

In Mixon v. Tyson, 2017 U.S. Dist. LEXIS 199188 (ED CA, Dec. 4, 2017), a California federal magistrate judge rejected an inmate's free exercise claim since he was permitted to put on a jump suit when he objected to appearing in his underwear before women.

In West v. Phelps, 2017 U.S. Dist. LEXIS 199301 (D DE, Dec. 4, 2017), a Delaware federal district court rejected free exercise claims by an inmate who practices the religion of Thelema. Plaintiff claimed he needed a healthy kosher diet; sexual relations with a female to perform a worship rite; and Tarot cards.  He also claimed that his prison job amounted to a form of slavery that violates his religious beliefs.

In Faber v. Smith, 2017 U.S. Dist. LEXIS 201243 (WD MI, Dec. 7, 2017), a Michigan federal district court held that a Bivens action is not available for a free exercise claim.

In Dawson v. Beard, 2017 U.S. Dist. LEXIS 201955 (ED CA, Dec. 7, 2017), a California federal magistrate judge recommended dismissing an inmate's claim that he was denied access to religious services and the right to fast.

In Thomas v. Bzoskie, 2017 U.S. Dist. LEXIS 201959 (D MN, Dec. 6, 2017), a Minnesota federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 202511, Oct. 30, 2017) and dismissed on res judicata grounds an inmate's free-exercise and equal-protection claims regarding Islamic gatherings, access to worship materials, and unequal treatment. It also refused to hear related state claims.

In Hunter v. Corrections Corporation of America, 2017 U.S. Dist. LEXIS 199955 (SD GA, Dec.5, 2017), a Georgia federal district court held that a religious program run at a private prison violates the Establishment Clause and awarded plaintiff $1 in nominal damages.

DC Transit Authority's Ban On Religious Ads Upheld

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (D DC, Dec. 8, 2017), the DC federal district court upheld advertising Guidelines of the Washington Metropolitan Area Transit Authority which, among other things, bar transit vehicle ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese challenged the application of this Guideline after WMATA refused to allow the Archdiocese's "Find the Perfect Gift" Christmas campaign ad.  The ad, intended for the exterior of public buses, was designed "to invite the public to consider the spiritual meaning of Christmas..." Denying a preliminary injunction, the court found that plaintiff is unlikely to succeed  on the merits of its free speech, free exercise, equal protection or RFRA arguments.

Rejecting the Archdiocese's free speech claim, the court held that the exterior of a bus in not a "public forum," and WMATA's restriction is neutral and reasonable.  The court said in part:

plaintiff maintains that the Guideline has been discriminatorily and arbitrarily enforced, favoring other religious advertisements over those sponsored by the Catholic Archdiocese.... But the record does not support this contention. None of the advertisements plaintiff highlights to make that point – neither the ads heralding the opening of another CorePower Yoga fitness studio in Clarendon, Virginia (“Muscle + Mantra”), nor the ads soliciting contributions to the Salvation Army’s Red Kettle effort (“Give Hope. Change Lives”) “promote or oppose any religion.”

Rejecting plaintiff's RFRA argument, the court said that no "substantial burden" or religious exercise was shown here:

... RFRA decisions turn on an element of compulsion, and here plaintiff is under no pressure to do anything. The fact that plaintiff has a sincere belief in spreading the gospel is not in dispute, but the existence of that belief, and even the sincere desire to act in accordance with it, is not enough to sustain a claim.

Washington Post reports on the decision.

4th Circuit En Banc and 9th Circuit Hear Arguments In Challenge To Third Travel Ban

On Wednesday, a 3-judge panel of the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in State of Hawaii v. Trump, a challenge to President Trump's third travel ban Proclamation. In the case a Hawaii federal district court-- without reaching the Establishment Clause question-- issued a nation-wide temporary restraining order barring enforcement of most portions of this latest, more focused, version of President Trump's travel ban.  The court (See prior posting.)  The Hill reports on the arguments.

Yesterday, the U.S. Fourth Circuit Court of Appeals, sitting en banc, heard two hours of arguments (audio of full arguments) in International Refugee Assistance Project v. Trump, another challenge to the same travel ban Proclamation.  In the case, a Maryland federal district court held that the Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality, and that, like the prior two bans, the third travel ban also violates the Establishment Clause. (See prior posting.)  The Hill reports on the arguments.

Earlier this week, the U.S. Supreme Court granted a stay of the preliminary injunction while appeals are pending in both cases.  (See prior posting.)

President Hosts Hanukkah Reception At White House

Yesterday evening President Trump and the First Lady hosted a Hanukkah party in the East Room of the White House. In his remarks (full text), the President said in part:

The miracle of Hanukkah is the miracle of Israel. The descendants of Abraham, Isaac, and Jacob have endured unthinkable persecution and oppression.

But no force has ever crushed your spirit, and no evil has ever extinguished your faith. And that is why the Jewish people shine as a light to all nations. And right now I’m thinking about what’s going on and the love that's all over Israel and all about Jerusalem. (Applause.)

On behalf of all Americans, I also want to say how grateful I am for Jewish congregations throughout our country. You cherish your families, support your communities, and uplift our beloved country.

Photos from the reception are posted on the President's Instagram account.

Rabbinical College Wins Challenge To Zoning and Environmental Laws

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, NY, (SD NY, Dec. 7, 2017), a New York federal district court in a 112-page opinion held that various zoning and environmental regulations enacted by the Village of Pomona violate the rights of plaintiff which is seeking to build a rabbinical college, on-campus housing and related religious facilities on a 100-acre piece of land which it owns.  The court held that plaintiff had proven that the challenged laws were enacted with a discriminatory purpose to "thwart the expansion of the orthodox/ Hasidic community.  The challenged laws were found to violate the Equal Protection Clause, the state and federal Free Exercise Clauses, RLUIPA's non-discrimination provisions, and the Fair Housing Act.  the court also concluded that the challenged laws imposed a substantial burden on plaintiff's religious exercise in violation of RLUIPA.  Lohud reports on the decision.

Court Upholds FEMA Policy Denying Disaster Grants To Religious Facilities

In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Dec. 7, 2017), a Texas federal district court refused to issue a preliminary injunction against a FEMA Policy Guideline that bars disaster relief grants to facilities that are used primarily for religious activities. (The Guideline also bars grants to facilities used primarily for political, athletic, recreational, vocational, or academic activities.)  The court concluded that plaintiff had not shown a substantial likelihood of success on its Free Exercise challenge to the Guideline.  It held that the case is governed not by the U.S. Supreme Court's Trinity Lutheran decision, but instead by the Supreme Court's decision in Locke v. Davey:

[T]he Locke plaintiff was not denied a scholarship because of what he was, but “because of what he proposed to do—use the funds to prepare for the ministry.” ... In Trinity Lutheran, on the other hand ... [t]he funds were not denied because of what they would be used for—a non-religious use—but because of the church’s status as a religious institution.... In the instant case, FEMA’s policy is closer to the scholarship in Locke. Plaintiffs would use the FEMA funds to rebuild facilities used primarily to promote religious activities.... Further, FEMA’s policy even distinguishes based on use, rather than status or identity....

MySanAntonio.com reports on the decision. [Thanks to Marty Lederman via Religionlaw for the lead.]

Australia Approves Same-Sex Marriage

As reported by the New Zealand Herald, Australia's Parliament has given final approval to same-sex marriage. The vote comes after a government mail survey showed that 61.6% of Australians favored marriage equality.  (See prior posting.) Marriage Amendment (Definition and Religious Freedoms) Bill 2017  passed the House of Representatives yesterday.  It was approved 43-12 last week by the Senate.  It now goes to the Governor General for royal assent.  The Herald reports further:

Amendments meant to safeguard freedoms of speech and religion for gay-marriage opponents were all rejected, though those issues may be considered later. The government has appointed a panel to examine how to safeguard religious freedoms once gay marriage is a reality in Australia....

The current bill allows churches and religious organizations to boycott gay weddings without violating Australian anti-discrimination laws.

Existing civil celebrants can also refuse to officiate at gay weddings, but celebrants registered after gay marriage becomes law would not be exempt from the anti-discrimination laws.

One of the rejected amendments would have ensured Australians could speak freely about their traditional views of marriage without fear of legal action.

ABC News says that the first same-sex weddings could take place as early as January 9.

European Court: Muslim Witness Should Be Allowed To Wear Skullcap While Testifying

In Hamidović v. Bosnia and Herzegovina, (ECHR, Dec. 5, 2017), the European Court of Human Rights held that the courts of Bosnia and Herzegovina infringed the religious freedom rights protected by Art. 9 of the European Convention on Human Rights when it held a Muslim man in contempt for refusing on religious grounds to remove a head covering while testifying in a criminal trial.  As summarized in the Court's press release on the case:

In 2012 Mr Hamidović, a witness in a criminal trial, was expelled from the courtroom, convicted of contempt of court and fined for refusing to remove his skullcap. 

The Court found that there had been nothing to indicate that Mr Hamidović had been disrespectful during the trial. Punishing him with contempt of court on the sole ground that he had refused to remove his skullcap, a religious symbol, had not therefore been necessary in a democratic society and had breached his fundamental right to manifest his religion.

The Court pointed out in particular that Mr Hamidović’s case had to be distinguished from cases concerning the wearing of religious symbols and clothing at the workplace, notably by public officials. Public officials, unlike private citizens such as Mr Hamidović, could be put under a duty of discretion, neutrality and impartiality, including a duty not to wear religious symbols and clothing while exercising official authority.

Two judges filed concurring opinions and one judge dissented.

Court Says Humanism Is Not A Religion

In Espinosa v. Stogner, (D NV, Dec. 4, 2017), a Nevada federal district court-- in a suit brought by a prisoner-- held that Humanism does not qualify as a "religion" for purposes of the Free Exercise or Establishment Clause.  The court reasoned in part:

The Court has no basis to doubt Plaintiff’s sincerity as to his professed beliefs and of course has no opinion as to the value of those beliefs, but the allegations in the FAC confirm that despite the title Plaintiff gives his belief system (“Religious Humanism”), it is not a religion for the purposes of the religion clauses. See Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994) ... (“[R]eligion is the ‘belief in and reverence for a supernatural power accepted as the creator and governor of the universe.’”).... Alvarado v. City of San Jose, 94 F.3d 1223, 1229 (9th Cir. 1996) ... (“We are hard put to imagine a more unworkable definition of religion ... for purposes of the Establishment Clause or Free Exercise than that which is offered here. Few governmental activities could escape censure under a constitutional definition of ‘religion’ which includes any symbol or belief to which an individual ascribes ‘serious or almost serious’ spiritual significance. ‘If anything can be religion, then anything the government does can be construed as favoring one religion over another, and . . . the government is paralyzed. . . .’ While the First Amendment must be held to protect unfamiliar and idiosyncratic as well as commonly recognized religions, it loses its sense and thus its ability to protect when carried to the extreme proposed by the plaintiffs.”).

Colorado School Board Ends Voucher Program As 6 Years of Litigation Threatened To Drag On

Yesterday the Douglas County, Colorado Board of Education voted 6-0 (with one abstention) to end its controversial school choice grant program which has been the subject of litigation for over six years.  The district has spent $1.77 million litigating the case. Most recently the cases challenging the program were remanded by the U.S. Supreme Court to the Colorado Supreme Court for reconsideration.  (See prior posting.)  As reported by the Highlands Ranch Herald, the vote to end the school choice program came after four anti-voucher candidates were elected to the school board in last November's election.