No Johnson Amendment Repeal In Conference Version of Tax Bill

The Conference Committee version of the Tax Reform Act which will be released today will not contain a repeal of the Johnson Amendment.  Washington Post reports that the Senate Parliamentarian has ruled that repeal of this provision cannot be included in legislation passed through the reconciliation process. The so-called "Byrd Rule" does not allow measures passed by reconciliation to contain matters extraneous to revenues or expenditures.  The Johnson Amendment bars non-profit organizations from engaging in partisan political activity.  A partial repeal of the Johnson Amendment had been in the House version of the tax bill (see prior posting), but not the Senate version (see prior posting). [Thanks to Nathan Walker for the lead.]

Trump Nominates Feldblum For Additional Term On EEOC

The White House announced earlier this week that President Trump has sent to the Senate the nomination of Chai R. Feldblum for an additional 5-year term on the Equal Employment Opportunity Commission.  Her current term expires on July 1, 2018.  Feldblum is the first openly lesbian EEOC Commissioner.  The EEOC enforces federal employment anti-discrimination laws, including laws prohibiting religious discrimination. Newsweek reports on the nomination.  The conservative blog Power Line speculates that the nomination is part of a deal to expedite a vote on at least one of two other EEOC nominees previously put forward by Trump: — Janet Dhillon and David Gade.

European Court Says Countries Must Recognize Same-Sex Unions Entered Abroad

In Orlandi and Others v. Italy, (ECHR, Dec. 14, 2017), the European Court of Human Rights in a Chamber Judgment, by a vote of 5-2, held that Italy violated the rights of same-sex couples by refusing to register their marriages.  The Court summarized the decision on its website as follows:

the Court has found a violation of the right to respect for private and family life. [Art. 8, European Convention on Human Rights.]  In this case 6 homosexual couples complained that they had been unable to have their marriages, which had been entered into abroad, registered or recognised in Italy.

The Court observed in particular that States were free only to authorise heterosexual couples to marry, but that homosexual couples needed to be legally recognised and to ensure the protection of their relationship. It also noted that the situation in Italy had changed in 2016 with the enactment of new legislation on homosexual civil partnerships.

Indonesia's Constitutional Court Refuses To Criminalize All Sex Outside of Marriage

Reuters reports that Indonesia's Constitutional Court yesterday in a 5-4 decision rejected a petition seeking to expand the definition of adultery in Indonesian law to cover not just married couples, but all sexual relations outside of marriage.  The petition was filed by the conservative Family Love Alliance (AILA).  Rights activists feared that the petition was particularly aimed at the LGBT community.  The Court majority held that any change in the law is a matter for Parliament, not the court.  Currently, same-sex relations between adults is outlawed only in the province of Aceh.

FLDS Leader Sentenced To 57 Months In Prison

As reported by News4Utah and Fox13News, yesterday a Utah federal district judge sentenced FLDS Church leader Lyle Jeffs to 45 months in prison for food stamp fraud and an additional 12 months for fleeing while on bond awaiting trial. He must also serve 3 years probation and pay restitution of $1 million to the Department of Agriculture.  In September, Jeffs plead guilty to the offenses. (See prior related posting.)

School Graduation In Christian Chapel Violates Establishment Clause

In American Humanist Association v. Greenville County School District, (D SC, Dec. 12, 2017), in a case on remand from the 4th Circuit (see prior posting), a South Carolina federal district court held that a South Carolina school district's practice of holding elementary school graduation ceremonies in the Christian Chapel of a local university violates the Establishment Clause. The court awarded plaintiffs $1 in nominal damages. The court said in part:

... [T]his ruling is limited to the specific facts of this case and should not be construed as a bright line rule regarding a school district’s use of a church-owned facility.... The fact that the district chose to hold the ceremony (which included school-endorsed Christian prayers) in a clearly Christian place of worship in the presence of religious iconography, including, among other things, a cross on the podium and eight stained glass windows depicting Christian imagery, only further created a likelihood that observers would perceive the district as endorsing a particular set of religious beliefs. There has been no showing that the chapel was the only available venue for the graduation ceremony, and in view of the overall circumstances of the event, there can be no doubt that the setting in which the ceremony occurred conveyed a message of religious endorsement and created a likelihood that the school-aged children would perceive a link between church and state.

 In a prior opinion in the case, the court had concluded student-led prayer at the school's past graduation ceremonies was unconstitutional.  In this case, the court held that the organizational plaintiff has standing to challenge the school's revised prayer policy as it is being applied.  Plaintiffs claim that as implemented, the revised policy merely continues past practices.  The court ordered the parties to attempt mediation before proceeding further. American Humanist Association issued a press release announcing the opinion.

Injunction Denied Again In Church Founder's Suit Over Marijuana Cutivation

In Harris v. City of Clearlake, (ND CA, Dec. 12, 2017), a California federal district court for the second time (see prior posting) denied a preliminary injunction, and dismissed with leave to amend, a religious discrimination suit brought by the founder of the Church of the Greater Faith & Redemption. The Church cultivates cannabis for sacramental purposes.  Plaintiff claims that his free exercise rights were infringed by the issuance against him of an administrative citation for violating a city ordinance regulating the growing of marijuana, and threats to close down the church's activities if plaintiff did not comply.  The court held that plaintiff had not shown how his exercise of religion was burdened.  Moreover, the ordinance at issue is a neutral law of general applicability.

UPDATE: A second amended complaint was dismissed in 2018 U.S. Dist. LEXIS 17742 (Feb. 2, 2018) for containing no new allegations.

9th Circuit: Protection of Sacred Land From Mining Does Not Violate Establishment Clause

In National Mining Association v. Zinke, (9th Cir., Dec. 12, 2017), the U.S. 9th Circuit Court of Appeals upheld the Obama administration's withdrawal for up to 20 years of over 1 million acres of land near Grand Canyon National Park from new uranium mining claims.  Among other things, the court rejected a claim that the Interior Department violated the Establishment Clause when it precluded new mining claims in order to protect land that has sacred meaning to Indian tribes. The court reasoned in part:

preservation of areas of cultural or historic value ... may constitute a “secular purpose” justifying state action even if the area’s significance has, in part, a religious connection.

In a related opinion in Havasupai Tribe v. Provencio, (9th Cir., Dec. 12, 2017), the 9th Circuit upheld the right of a two companies with a pre-existing approval to operate a uranium mine near Red Butte within the Grand Canyon withdrawal area.  Red Butte is a site of religious and cultural significance to the Havasupai Tribe.  Washington Post reports on the decisions.

PCUSA's Trust Clause Keeps Property of Breakaway Church For National Body

In Lehigh Presbytery v. First Presbyterian Church of  Bethlehem, Pennsylvania, (PA Com Pl., Dec. 12, 2017), a Pennsylvania trial court in a 43-page opinion held that the property of a break-away congregation belongs to the Presbyterian Church (USA) because of the trust clause in the PCUSA's Book of Order.  The court concluded its opinion as follows:

Since its inception, the congregational generations of FPCB have consistently expressed allegiance, fidelity, and adherence to the national denomination now known as PCUSA.  However, rather than leaving the Church to join a different religious denomination, the majority of the congregants wish to evict the national denomination from the church; thereby repudiating the intent of those who founded FPCB and extinguishing the sacrifices, contribution, and hard work of many prior generations of congregants who built FPCB with the expectation that FPCB would remain affiliated with the national denomination of Presbyterian Churches (USA).  Thus, although we have resolved this issue under neutral principles of law, we were also struck that to do otherwise, we would ignore the express intention of those who built this congregation with the expectation that those founding principles should forever direct its mission.

The Morning Call reports on the decision.

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.