Oklahoma Supreme Court Reverses Itself In Suit By Muslim Convert To Christianity

In Doe v. First Presbyterian Church U.S.A. of Tulsa, (OK Sup. Ct., Dec. 19, 2017), the Oklahoma Supreme Court, in a 5-4 decision, withdrew its Feb. 2017 decision (see prior posting) dismissing on church autonomy grounds a suit challenging a church's publicizing of plaintiff's baptism, and replaced it with a majority opinion reversing the trial court's dismissal of the suit for lack of subject matter jurisdiction. At issue are tort and breach of contract claims against a Presbyterian congregation.  Plaintiff is a Syrian, Muslim refugee who became interested in converting to Christianity and agreed to be baptized only after it was agreed that his conversion would be kept private.  However Presbyterian Church doctrine requires that information about those baptized be made public.  The fact of plaintiff's baptism was published on the Internet, leading to plaintiff's kidnapping and torture by Islamic extremists when he returned to Syria for a visit. The majority held:

All parties agree Doe simply asked for baptism, but never to become a member subject to the Appellees' ecclesiastical hierarchy. Without this consent, Doe's religious freedom to not subject himself to the Appellees' judicature must be respected and honored under the longstanding and clear constitutional decisions from our Court and the Supreme Court of the United States. What Doe consented to and what the FPC communicated to Doe must be determined as a foundational inquiry regarding Doe's claims.

It was error for the district court to conclude that it had no subject matter jurisdiction to hear Doe's claims on the basis of ecclesiastical jurisdiction. The record below is replete with contested issues of fact which must be resolved by the trier of fact in an adversarial hearing below. This matter is hereby remanded back to the trial court for proceedings consistent with this decision.

Chief Justice Combs dissenting opinion argued that the majority wrongly conflated the church autonomy and ministerial exception doctrines in holding that the church autonomy defense is not jurisdictional. He went on to argue that plaintiff's non-membership in the church does not preclude application of the church autonomy doctrine. News OK reports on the decision. [Thanks to Scott Mange for the lead.]

Judge Reprimanded For Gay Adoption Recusal Order

The Kentucky Judicial Conduct Commission has voted to reprimand now-retired Family Court Judge W. Mitchell Nance.  In In re Nance, (Jud. Con. Commn, Dec. 19, 2017), the Commission concluded that Nance had violated Canons of Ethics that require judges to decide cases fairly and impartially when, based on his religious views, he issued an Order recusing himself from any case involving adoption of a child by a gay or lesbian.  As described by the Commission:

On April 27th, 2017 the Respondent issued General Order 17-01 declaring that “under no circumstance” would the adoption of a child by a homosexual be in the child’s best interest. Acknowledging that this declaration constitutes a “personal bias or prejudice” against homosexuals seeking to adopt children, Judge Nance ordered that any attorney filing a motion for adoption on behalf of a homosexual party notify court staff so that he could recuse and disqualify himself from any such proceeding.

(See prior related posting.) The Richmond Register reports on the Commission's decision.

10th Circuit: ERISA "Church Plan" Exemption Does Not Violate Establishment Clause

In Medina v. Catholic Health Initiatives, (10th Cir., Dec. 19, 2017), the U.S. 10th Circuit Court of Appeals held that Catholic Health Initiatives retirement plan for employees of 92 hospitals qualifies as a "church plan" under ERISA. One of the issues in the case was resolved by the Supreme Court while this appeal was pending.  Resolving the other issues, the 10th Circuit held that CHI's internal benefits committee qualifies as the statutorily required organization associated with a church that maintains a retirement plan.  The Court went on to conclude that the "church plan" exemption does not violate the Establishment Clause.  It held that the exemption meets all three prongs of the Lemon test.  Rejecting the argument that the exemption has the effect of favoring religion, the Court said in part:

Any law of general applicability that exempts religious organizations from its requirements could be said to convey a message that religion is favored. Religion is, after all, being exempted from a rule everyone else has to follow. Such an approach would mean that Congress could never exempt religious organizations from laws that might burden them—even when burdening religious organizations would itself run afoul of the Constitution. But this is common practice. A number of statutes regulate wide swathes of the American economy. And many of these statutes expressly exempt religious organizations from various requirements. 

Dismissal of Claims Against Church For Sex Abuse by Youth Director Is Upheld

In B.B. v. Methodist Church of Shelbina, Missouri, (MO App., Dec. 19, 2017), a Missouri appellate court upheld the dismissal of a suit for damages against a church growing out of the sexual molestation of appellant by the church's youth director.  The molestation occurred in 2006 when appellant was 12 years old.  The court summarized its holding in part as follows in an accompanying Opinion Summary:

(1) The Establishment Clause ... bars Appellant’s negligence-based claims and his claim for breach of fiduciary/confidential relationship against Respondents because we cannot resolve these claims without interfering with and interpreting the doctrine, policy, polity, practice, and administration of the Respondents.

(2) Appellant has not and will not be able to present sufficient evidence to prove an element of his claim for intentional failure to supervise.... Specifically, Appellant failed to establish the sexual abuse he suffered occurred on property possessed by the Church.

(3) Appellant’s claims for child sexual abuse and battery against the Church fail ... because: a. [The youth director's] misconduct was completely outside the course and scope of his employment with the Church; b. Appellant’s argument the trial court erred in not imposing liability on the Church based on its employee’s failure to act on information given to her ... is nothing more than a reconstituted claim of negligence against the Church, which is not cognizable pursuant to precedent from Missouri courts....

USCIRF Issues New Report On Iraq

With the defeat ISIS in Iraq, last week the U.S. Commission on International Religious Freedom issued a Policy Update on Iraq (full text). The Report's recommendations included the following:

Iraq’s progress and stability hinge on full respect for the rule of law and compliance with international human rights standards, including freedom of religion or belief. USCIRF continues to advocate for a peaceful home for all of Iraq’s citizens, particularly its religious minority communities that are at risk of extinction in their ancestral homeland. 

USCIRF urges the U.S. government to:

•  Designate Islamic State of Iraq and Syria (ISIS) as an “entity of particular concern” under the International Religious Freedom Act, as amended by the Frank R. Wolf International Religious Freedom Act of 2016;
• Encourage both the government of Iraq and the Kurdistan Regional Government (KRG) to cease conflict, protect the rights of all Iraqis, and resolve land disputes....

New Jersey Township Reverses Moves That Were Aimed At Excluding Orthodox Jews

According to JTA, as a strategic response to a lawsuit filed against it in October (see prior posting), the Mahwah, New Jersey Township Council last week voted to rescind an ordinance that banned out-of-state residents from using Township parks and passed a resolution withdrawing a proposed ordinance that would have prevented the construction of an eruv. (Dec. 14 Meeting Agenda).  Legal counsel had recommended the move in the face of charges that the Township was attempting to prevent Orthodox Jews from moving into the area.

Suit Charges Louisiana School Promotes Christian Beliefs and Broadcasts Daily Prayer

In Louisiana yesterday, the mother of a high school student filed suit against a local school board alleging extensive Establishment Clause violations.  The complaint (full text) in Cole v. Webster Parish School Board, (WD LA, filed 12/18/2017) alleges in part:

2 ... [T]he Webster Parish School District has a longstanding custom, policy, and practice of promoting and inculcating Christian religious beliefs by sponsoring religious activities and conveying religious messages to students, including by broadcasting prayers daily over school speakers.

3. So engrained is official promotion of religion at Webster Parish schools that virtually all school events—such as sports games, pep rallies, assemblies, and graduation ceremonies—include school-sponsored Christian prayer, religious messages and/or proselytizing. Graduation ceremonies are frequently held in houses of worship, and at times they resemble religious rituals that include Bible verses and Christian prayers.

The ACLU issued a press release announcing the filing of the lawsuit. Shreveport Times reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Bruce Ledewitz, Is Religion a Non-Negotiable Aspect of Liberal Constitutionalism?, (Michigan State Law Review, Vol. 2017, No. 2, 2017).
• Robin Bradley Kar, Transformational Marriage: The Religious Case for Supporting Same-Sex Marriage, (The Contested Place of Religion in Family Life, p. 375, 2018 (Cambridge University Press) (ed., Robin Fretwell Wilson), Forthcoming).
• Michael A. Helfand, The Future of Religious Arbitration in the United States: Looking Through a Pluralist Lens, (Oxford Legal Handbook on Global Legal Pluralism, Paul Schiff Berman ed., 2018 Forthcoming).
• Richard Schragger & Micah Schwartzman, Jews, Not Pagans, (Virginia Public Law and Legal Theory Research Paper No. 2017-67 (Dec. 2017)).
• Daniel O. Conkle, Religion, Law, and the Constitution, (Foundation Press, 2016).
• Eric Che Muma, The Impact of Anti-Terrorism Laws on Religious Freedom: Cameroon's Approach in Combating Terrorism and the Role of the Church, (Proceedings of the RAIS Conference: The Future of Ethics, Education and Research, 2017).
• Andras Koltay & Jeroen Temperman, Blasphemy and Freedom of Expression in Western Liberal Democracies, (Forthcoming as "Introduction" in: Jeroen Temperman and András Koltay (Eds.), Blasphemy and Freedom of Expression: Comparative, Theoretical and Historical Reflections after the Charlie Hebdo Massacre (Cambridge: Cambridge University Press, 2017), 1-21).
• Mohammad Hasan Javadi, Behzad Balazadeh & Mehdi Ghoreyshi, Restoring Dignity in Islamic Law, (December 10, 2017).

From SmartCILP:

• Lucien J. Dhooge, The Impact of State Religious Freedom Restoration Acts: An Analysis of the Interpretive Case Law, [Abstract], 52 Wake Forest Law Review 585-647 (2017).

Recent Prisoner Free Exercise Cases

In Kemp v. Liebel, (7th Cir., Dec. 11, 2017), the 7th Circuit upheld qualified immunity for an official who transferred two Jewish inmates to another facility so they could obtain kosher meals, but did not delay the transfer until the new facility offered Jewish group worship and study.

In Reed v. Bryant, (10th Cir., Dec. 13, 2017), the 10th Circuit held that the district court should not have dismissed an inmate's due process and RLUIPA challenges to a zero tolerance rule that automatically suspends and inmate's kosher diet if he consumes any non-kosher food.

In Schuh v. Michigan Department of Corrections, 2017 U.S. App. LEXIS 25351 (6th Cir., Dec. 14, 2017), the 6th Circuit affirmed the dismissal of an inmate's complaint that he was denied a kosher diet because his insufficient knowledge of Judaism showed a lack of sincerity of belief.

In Priest v. Holbrook, 2017 U.S. Dist. LEXIS 203386 (ED MI, Dec. 11, 2017), a Michigan federal district court dismissed a complaint by a Native American inmate that his eagle feathers were stolen or destroyed.

In Dexter v. Olson, 2017 U.S. Dist. LEXIS 203923 (WD MI, Dec. 12, 2017), a Michigan federal district court allowed an inmate to move ahead with claims against two officials for refusing to permit Nation of Islam inmates to attend the Eid al-Fitr celebration.

In King v. Lombardi, 2017 U.S. Dist. LEXIS 203959 (ED MO, Dec. 12, 2017), a Missouri federal district court held that for purposes of the exhaustion requirement, an inmate's charge that he was unable to attend religious services was not a separate claim, but part of his due process claim challenging his lengthy assignment to administrative segregation.

In Christian Separatist Church Society of Ohio v. Ohio Department of Rehabilitation & Corrections, 2017 U.S. Dist. LEXIS 205480 (SD OH, Dec. 14, 2017), an Ohio federal magistrate judge recommended that inmates who are members of the Christian Separatist Church be allowed to move ahead with their claim for declaratory and injunctive relief in their suit challenging prison policy that denies them separate congregate worship and requires they worship with the recognized Protestant Christian organization.

In Cooper v. True, 2017 U.S. Dist. LEXIS 203780 (D MN, Dec.12, 2017), a Minnesota federal district court accepted a magistrate's recommendation (2017 U.S. Dist. LEXIS 205900, Nov. 2, 2017) and dismissed a Jewish inmate's damage claim against a warden who kept him at a facility that lacked access to a rabbi, a Torah, and minyan.

In Greenhill v. Clarke, 2017 U.S. Dist. LEXIS 206384 (WD VA, Dec. 15, 2017), a Virginia federal district court dismissed a Muslim inmate's complaint regarding ritual contamination of his food tray.  It allowed him to proceed with RLUIPA, but not 1st Amendment, claims regarding beard length and group Jum'ah services.

In Miller v. Clarke, 2017 U.S. Dist. LEXIS 206382 (WD VA, Dec. 15, 2017), a Virginia federal district court allowed a Muslim inmate to move ahead with his damage claim growing out of his suspension from the Common Fare diet and denial of his participation in Ramadan.

Nigerian Lawyer's Group Denies Law School Grad Bar Admission Because of Hijab

According to a report on Friday from Al Jazeera, the Lagos-based Nigerian Law School has refused to allow a Muslim woman graduate to receive her call to the bar (i.e. be sworn in as a lawyer) because she insists on wearing her hijab under her traditional barrister's wig.  On Dec. 12, the Body of Benchers refused to allow Amasa Firdaus Abdulsalam to enter the Conference Centre where the call to the bar is held because she was in violation of the Law School's dress code.

Complaint Filed Against Convenience Store For Its Anti-Muslim Signs

CAIR announced last week that it has filed a discrimination complaint with the New Mexico Department of Workforce Solutions charging that a Mayhill, New Mexico convenience store has violated the state's anti-discrimination law by denying service to Muslims.  The store's windows are plastered with anti-Muslim and anti-African American signs, such as "Obama & other Muslims Not welcome here."  KOB4 News reports on the filing.

Religious Worker Visa Rule Requiring Compensation Violates Sect's RFRA Rights

In O Centro Espirita Beneficiente Uniao Do Vegetal v. Duke, (D NM, Dec. 15, 2017), a New Mexico federal district court concluded that immigration rules which deny religious worker visas to uncompensated clergy likely place a substantial burden in violation of RFRA on the UDV sect because its theology requires non-compensation of its ministers.  The court issued a preliminary injunction requiring US Citizenship and Immigration Services to reconsider petitions for an R-1 Religious Worker Visa and an I-360 Religious Worker petition without applying those provisions of the rules that require applicants be compensated employees or part of an established missionary program.

Final Tax Bill Extends 529 Plans To Elementary and Secondary School Tuition

The final version of the Tax Cuts and Jobs Act as it emerged from the Conference Committee (full text) extends Section 529 Qualified Tuition Programs so that they will now be able to be used to fund not just higher education expenses, but also up to $10,000 per student per year of tuition at public, private or religious elementary or secondary schools.

Court Issues Nationwide Injunction Against Expanded ACA Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. Trump, (ED PA, Dec. 15, 2017), a Pennsylvania federal district court granted a nationwide preliminary injunction  against enforcement of the Interim Final Rules issued by the Trump Administration in October (see prior posting) expanding exemptions from the ACA contraceptive coverage mandate for those with religious or moral objections.  First, in a lengthy discussion, the court concluded that Pennsylvania has standing to bring the challenge because of its "quasi-sovereign interest in safeguarding the health and wellbeing of its women residents," and because it will now "have to increase its expenditures for State and local programs providing contraceptive services."

The court, without reaching constitutional challenges, found that plaintiffs had shown a likelihood of success on the merits because of two types of violations of the Administrative Procedure Act: the government violated the APA's notice-and-comment requirements and the new rules are "arbitrary, capricious, or not in accordance with law."  Characterizing as "matryoshkanesque in its construction" the government's argument that it has statutory authority to bypass the notice-and-comment requirement, the court said: "The argument is creative, but not supported by law." Similarly the court rejected the government's argument that it had "good cause" to bypass the notice-and-comment requirement.

Examining whether the new rules are inconsistent with the Affordable Care Act, the court was particularly critical of the "moral exemption" rule, saying in part:

The Moral Exemption Rule allows any non-profit or for-profit organization that is not publicly traded to deny contraceptive coverage for its employees for any sincerely held moral conviction. This means that boards of closely held corporations can vote, or their executives can decide, to deny contraceptive coverage for the corporation’s women employees not just for religious reasons but also for any inchoate – albeit sincerely held – moral reason they can articulate. Who determines whether the expressed moral reason is sincere or not or, for that matter, whether it falls within the bounds of morality or is merely a preference choice, is not found within the terms of the Moral Exemption Rule. If one assumes that it is the Agency Defendants – or, indeed, any agency – then the Rule has conjured up a world where a government entity is empowered to impose its own version of morality on each one of us. That cannot be right.

The court went on to reject the government's argument that the new religious exemption is required by the Religious Freedom Restoration Act, citing cases in which the Third Circuit has found that the prior accommodation process governing religious objections did not impose a substantial burden on the exercise of religion.  Pennsylvania's attorney general issued a press release announcing the decision.  New York Times reports on the decision. [Thanks to Tom Rutledge for the lead.]

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.