FEMA Policy Change: Houses of Worship Now Eligible For Disaster Relief

The Federal Emergency Management Agency announced yesterday that:

private nonprofit houses of worship are now eligible for disaster assistance as community centers, without regard to their secular or religious nature.  These changes are effective for disasters declared on or after August 23, 2017 and for applications for assistance that were pending with FEMA as of August 23, 2017, including applications on first- or second-level appeal, that as of today have not yet been resolved by FEMA.

The policy change, also reflected in a new edition of FEMA's Public Assistance Program Policy Guide, reverses a long-standing policy that is currently being challenged in two separate lawsuits growing our of recent hurricane damage in Texas and Florida. (See prior posting.) Becket issued a press release calling attention to FEMA's policy change.

Bond Hearings Ordered For Detained Iraqi Immigrants

As previously reported, in July a Michigan federal district court issued a preliminary injunction preventing Iraqi nationals who are subject to long-standing deportation orders from being removed from the United States while they attempt to convince immigration courts that their return will subject them to persecution, torture and possible death.  Those affected are mostly Chaldean Christians, but some are Kurds and Sunni and Shiite Muslims.  Nevertheless, immigration officials began to arrest and detain some 300 of these Iraqis. 274 remain in custody.  Yesterday in  Hamama v. Adducci, (ED MI, Jan. 2, 2018), the same judge ordered bond hearings for those who have been detained for 6 months or more. Summarizing its more detailed holding, the court said:

Our legal tradition rejects warehousing human beings while their legal rights are being determined, without an opportunity to persuade a judge that the norm of monitored freedom should be followed.  This principle is familiar to all in the context of the criminal law, where even a heinous criminal — whether a citizen or not — enjoys the right to seek pre-trial release.  In the civil context of our case, this principle applies with at least equal force.  In either context, the principle illustrates our Nation’s historic commitment to individual human dignity — a core value that the Constitution protects by preserving liberty through the due process of law.

The court also granted in part plaintiffs' motions for nationwide class certification.  Detroit News reports on the decision.

Louisiana AG and Rep Release Pamphlet On Student Religious Rights

As reported by the New Orleans Times-Picayune, yesterday Louisiana's attorney general and one of its members of Congress released a new 15-page publication Louisiana Student Rights Review: Answers to Common Questions About Religious Freedom In Schools. The Introduction to the Q&A format pamphlet says in part:

The right to religious expression, in particular, has been increasingly challenged and misunderstood in recent years, and many people have been led to believe our elementary and secondary schools must be “religion-free” zones. To the contrary, both federal and state laws specifically protect religious freedom rights in public schools. Thankfully, Congress and our state legislature still recognize the fundamental importance of religious liberty—the first freedom listed in the Constitution’s Bill of Rights.

11th Circuit: Clergyman's Right To Retirement Benefits Was Ecclesiastical Matter

In Myhre v. Seventh-Day Adventist Church Reform Movement American Union International Missionary Society, (11th Cir., Jan 2, 2018), the U.S. 11th Circuit Court of Appeals upheld the dismissal of a suit by a retired clergyman who contended that his retirement benefits were wrongfully terminated.  Concluding that the district court lacked jurisdiction because the subject-matter of the dispute was purely ecclesiastical in nature, the appeals court said in part:

Myhre’s claims, which were predicated on his defrocking, his excommunication, and the termination of his retirement benefits due to a “theological disagreement” would have required encroachment into matters of church dogma and governance. Based on “the separation of church and state principles required by the [E]stablishment and [F]ree [E]xercise [C]lauses of the [F]irst [A]mendment,” ..., the district court could not interfere with the purely ecclesiastical decisions of the American Union regarding Myhre’s fitness to serve in the clergy or to remain a member of the denomination.

Court Refuses To Block School's Transgender Rest Room Policy

In Students & Parents for Privacy v. United States Department of Education, (ND IL, Dec. 29, 2017), an Illinois federal district court adopted a magistrate's recommendation (see prior posting)  and refused to block a school district from allowing transgender students to use the restrooms and locker rooms of the gender with which they identify. The court pointed out that a good deal of the case was mooted by developments since the magistrate's recommendation:

First, Student A graduated from Fremd High School and the Locker Room Agreement pertaining to her was accordingly terminated....] Second, the United States Department of Education Office for Civil Rights and the United States Department of Justice Civil Rights Division withdrew the administrative guidance that Plaintiffs had challenged in this action, and issued a joint guidance letter instructing that the views conveyed in the earlier materials should not be relied upon while the issue is under further consideration....

The court went on to hold:

In any event ..., the Magistrate Judge correctly determined that Plaintiffs had not shown a reasonable likelihood of success on the merits that allowing transgender students access to sex-segregated facilities based on their gender identity violates Title IX or the privacy rights of the Student Plaintiffs with whom such facilities are shared, whether such facilities are restrooms or locker rooms. 

Happy New Year 2018!

Dear Religion Clause Readers:

Happy New Year 2018! I hope you continue to find Religion Clause an important resource for news on religious liberty and church-state developments. I continue to strive for objectivity in my posts and to provide links to an abundance of primary source material underlying each post.  I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

It has been a chaotic year in which lines between law and politics, news and opinion, religion and culture have all become increasingly blurred.  In such times, access to a wide spectrum of factual information is of increased importance.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. The ABA Journal continues to include Religion Clause as one of 55 legal blogs in its Blawg 100 Hall of Fame.  I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.  It is accessible via Twitter and Facebook, as well as through traditional online access and RSS feeds.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes for 2018!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Howard M. Friedman

Recent Articles of Interest

From SSRN:

• Perry Dane, Establishment and Encounter, (Research Handbook on Law & Religion (Edward Elgar Publishing, Rex Ahdar, ed.) (Forthcoming)).
• John Witte & Don Browning, Emil Brunner, (in John Witte, Jr. and Gary S. Hauk, eds., Christianity and Family Law: An Introduction (Cambridge: Cambridge University Press, 2017), 307-322).
• John Witte, Foreword: What Does Christianity Offer to the World of Law?, (in Journal of Law and Religion 32 (2017): 4-8).
• John Witte & Gary S. Hauk, Editorial Introduction, (in John Witte, Jr. and Gary S. Hauk, eds., Christianity and Family Law: An Introduction (Cambridge University Press, 2017), 1-15).
• Joseph William Singer, Religious Liberty & Public Accommodation: What Would Hohfeld Say?, (in Wesley Hohfeld A Century Later: Edited Major Works, Select Personal Papers, and Original Commentaries (eds. Shyam Balganesh, Ted Sichelman, & Henry Smith (Cambridge U. Press, 2018, Forthcoming)).

From SSRN (articles on Martin Luther):

• John Witte, The Legal Turn of the Reformation, (in Luther – 95 Treasures, 95 People (Wittenberg: Stiftung Luthergedenkstätten in Sachsen-Anhalt, 2017), 451-455).
• John Witte, Martin Luther's Influence on Legal Reforms and Civil Law, (in Oxford Research Encyclopedia of Religion (March, 2017)).
• John Witte, Luther the Lawyer: the Lutheran Reformation of Law, Politics, and Society, (in Law and Justice: A Christian Law Review 178 (2017): 6-36).
• John Witte & Steven Ozment, Martin Luther, (Published in John Witte, Jr. and Gary S. Hauk, eds., Christianity and Family Law: An Introduction (Cambridge: Cambridge University Press, 2017), 195-210).

From SmartCILP:

• Andrea Pin. Arab Constitutionalism and Human Dignity, 50 George Washington International Law Review 1-67 (2017).
• Jason A. Cantone & Richard L. Wiener, Religion at Work: Evaluating Hostile Work Environment Religious Discrimination Claims, [Abstract], 23 Psychology, Public Policy & Law 351-366 (2017).
• Martha M. Ertman. We Who Believe...Cannot Rest, [Abstract], 17 University of Maryland Law Journal of Race, Religion, Gender & Class 9-14 (2017).
• Rabbi Nina Beth Cardin, Faith and Hospitality, [Abstract], 17 University of Maryland Journal of Race, Religion, Gender & Class 15-19 (2017).
• Marvin Lim, Scrutinizing Sex Under Natural Law: Unitive Sex, Self-Gratifying Sex, and Concepts of Harm, 45 Capital University Law Review 579-634 (2017).
• Eric Yordy, Clamorous Coexistence: The U.S. Commission on Civil Rights and the Internal Battle Between Religion and Nondiscrimination Laws [pdf download], 8 William & Mary Policy Rev. 51-86 (2017).

Recent Prisoner Free Exercise Cases

In Smith v. Murphy, 2017 Conn. Super. LEXIS 4974 (CT Super., Nov. 28, 2017), a Connecticut trial court dismissed an inmate's complaints that his religious oils and his gold chain and cross were placed in temporary storage; however the court allowed him to move ahead on his claim that his oils were wrongly classified as contraband.

In Kollock v. Beemer, 2017 Pa. Commw. Unpub. LEXIS 883 (NPA Commnw. Ct., Nov. 39, 2917), a Pennsylvania state appeals court rejected an inmate's claim that the sex offender treatment program required for parole forces him to admit guilt in violation of his religious convictions by forcing him to bear false witness against himself.

In Riddick v. Department of Corrections, 2017 U.S. Dist. LEXIS 211696 (WD VA, Dec. 26, 2017), a Virginia federal district court dismissed an inmate's complaints that his request for Passover participation and food were not processed, was denied the Common Fare diet, and was not permitted to celebrate both Passover and Ramadan.

In Leibelson v. Collins, 2017 U.S. Dist. LEXIS 212026 (SD WV, Dec. 27, 2017), dismissed the claim by a former inmate who is a transgender woman that her rights were infringed when she was removed from chapel which she was attending.  She attended so she could spend time with another inmate with whom she was having intimate relations.

In Orozco v. Kernan, 2017 U.S. Dist. LEXIS 212146 (ED CA, Dec. 26, 2017), a California federal magistrate judge dismissed with leave to amend a Jewish inmate's complaint that Jewish inmates are spread out among institutions so that none of the locations have ten men for a prayer minyan.

In Monroe v. Gerbing, 2017 U.S. Dist. LEXIS 212172 (SD NY, Dec. 27, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his complaint that during Ramadan, his medications were delivered during fasting hours.

In United States v. Parson, 2017 U.S. Dist. LEXIS 213201 (D NE, Dec. 29, 2017), a Nebraska federal district court ordered an inmate to submit to tuberculosis testing, rejecting his claim that this impermissibly violates his religious rights.

Annual Bibliography of Law & Religion Publications Released By AALS Section

The Law and Religion Section of the Association of American Law Schools has released its annual newsletter which includes a 22-page bibliography of articles and books on Law and Religion published last year, of blogs, and of forthcoming publications by various Section members.

Lithuanian Court Invalidates Jewish Community Election

JTA reports on a  Dec. 21 decision (full text in Lithuanian) by Lithuania's Vilnius District Court invalidating an election for president of the umbrella group, Jewish Community of Lithuania ("LBZ").  The lawsuit filed by the Vilnius Jewish Community challenges a change in voting rules adopted by LBZ's board in the middle of the campaign.  The change disenfranchised 2,200 members of the Vilnius Jewish Community and resulted in the re-election of Faina Kukliansky.  LBZ had earlier attempted to invalidate an election of an opponent of Kukliansky as head of the Vilnius Jewish Community.  LBZ criticized the Vilnius election, contending that Vilnius voters were "mainly Russian speakers calling themselves Jews, with only a minority of people with Litvak blood."

Oregon Appeals Court Upholds Judgment Against Baker Who Refused Same-Sex Wedding Cake

In Klein v. Oregon Bureau of Labor and Industries, (OR App., Dec. 28, 2017), an Oregon appeals court in a 62-page opinion agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. The court upheld $135,000 in damages that the Bureau had awarded. The court held that the bakery's refusal of service  was "on account of" the couple's sexual orientation. Rejecting plaintiffs' constitutional arguments the court said that "the final order does not impermissibly burden the Kleins' right to the free exercise of their religion because it simply requires their compliance with a neutral law of general applicability...."

Moving to plaintiffs' free expression argument, the court said in part:

Although the Kleins’ wedding cakes involve aesthetic judgments and have decorative elements, the Kleins have not demonstrated that their cakes are inherently “art,” like sculptures, paintings, musical compositions, and other works that are both intended to be and are experienced predominantly as expression. Rather, their cakes, even when custom-designed for a ceremonial occasion, are still cakes made to be eaten. Although the Kleins themselves may place more importance on the communicative aspect of one of their cakes, there is no information in this record that would permit an inference that the same is true in all cases for the Kleins’ customers and the people who attend the weddings for which the cakes are created. Moreover, to the extent that the cakes are expressive, they do not reflect only the Kleins’ expression. Rather, they are products of a collaborative process in which Melissa’s artistic execution is subservient to a customer’s wishes and preferences. For those reasons, we do not agree that the Kleins’ cakes can be understood to fundamentally and inherently embody the Kleins’ expression, for purposes of the First Amendment.

The court concluded that at most intermediate scrutiny applies and the Bureau's order survives that level.  The court however reversed the Bureau's holding that the bakery's statements about the case violated a separate provision prohibiting display of any notice that a business intends to discriminate in the future. KPTV News and The Oregonian report on the decision.

Court Dismisses Challenge To Illinois Law Allowing Medicaid Payments For Abortions

As previously reported, in a suit filed earlier this month plaintiffs challenged HB 40 which eliminates the prior ban on coverage for abortions by the state employees' insurance program and by the state's Medicaid program.  The complaint alleged that funds cannot be expended on abortions because no appropriation has been made, and challenges the effective date of the law.  The Chicago Tribune reports that yesterday state court judge Jennifer Ascher dismissed the challenge, holding that questions such as a law's effective date and whether there is an appropriation are "political questions" which courts cannot decide. Plaintiffs say they will appeal.

Suit Charges FLDS Leaders With Ritual Sex Abuse of Minors

In a lawsuit filed yesterday in Utah state court, a young woman sued the FLDS Church and various of its leaders alleging that she was a repeated victim of ritual sexual abuse when she was between the ages of 8 and 12.  The complaint (full text) in R.H. v. Jeffs, (UT Dist. Ct., filed 12/27/2017), alleges in part:

25. The practice of having sexual relations with underage girls has been consistently sustained by members of the Priesthood Work and participants in the UEP Trust since their inception....

28. The practice of having sexual relations with underage girls continued after Warren S. Jeffs assumed control of the UEP Trust and FLDS Church and after he later became the President of both entities.

29. However, a new practice of having sex and sexual relations with underage girls in the FLDS Temple and other undisclosed FLDS Church and UEP Trust owned properties with girls, ages eight (8) to 14 years old, was initiated by Warren Jeffs, along with leadership of UEP Trust and the FLD Church....

30. Plaintiff was subject to this horrific religious doctrine and religious rituals....

36. This religious ritual abuse continued on a regular basis, between five and six times a week, from the age of 8 years-old until the Plaintiff turned 12 years-old.

37. Once Plaintiff turned 14, she was required to become a witness and scribe to these religious rituals between other young girls and defendants....

Fox13 News reports on the lawsuit.

Senate Condemns Iran's Persecution of Baha'is

Last week (Dec. 21), the United States Senate passed by unanimous consent Senate Resolution 139 condemning Iran's state-sponsored persecution of it Baha'i minority and, more broadly, Iran's continuing violation of international human rights covenants.  The U.S. Baha'i Office of Public Affairs issued a press release announcing the Senate's action and setting out additional background.

FLDS Members Quietly Regaining Their Homes

The Salt Lake Tribune yesterday reported that after 12 years of litigation and impasses, a number of members of the polygamous FLDS Church are quietly working out arrangements with the United Effort Plan trust that will allow them to remain in their homes in Colorado City, Arizona. Most of the UEP properties in the adjoining town of Hilldale, Utah have already been sold off. Up to now, many FLDS members, on religious grounds, had refused to cooperate with the court-ordered restructuring of the Trust.

Court May Not Automatically Defer To Religious Objections Of One Parent In Deciding Child's Best Interest

In Arcella v. Arcella, (NV Sup. Ct., Dec. 26, 2017), the Nevada Supreme Court held that a trial court was wrong in the manner it resolved a dispute between divorced parents over the middle school their child should attend. the father wanted the child to attend a private Lutheran school, but the mother objected to the child's receiving a religious education.  The court, relying solely on the mother's religious objections, decided that the child should attend a public school.  In reversing, the state Supreme Court said in part:

When a district court decides a child's best interest, "[t]he First Amendment mandates governmental neutrality between religion and religion, and between religion and nonreligion." ... The district court violates this principle of neutrality when it treats one parent's religious objection as dispositive when deciding between a religious school and a nonreligious school....

In sum, a district court does not violate the First or Fourteenth Amendments by ordering a child to attend a religious school over a parent's religious objection. Indeed, the district court must order a child to attend the religious school if attendance at that school accords with the child's best interests.

Las Vegas Review Journal reports on the decision.

Court Tells South Korea To Halt Publicizing Personal Information On Conscientious Objectors

The Hankyoreh yesterday reports that South Korea's Military Manpower Administration is publishing the personal information of religious conscientious objectors on its website. The paper says:

Since last year, the Military Service Act has mandated that a registry be kept identifying those who refuse to report for service without a legitimate reason. But critics have pointed out that presenting those who refuse to serve because of their pacifism or religious beliefs as if they were deliberate draft dodgers subjects them to double punishment....

When the MMA published the personal information of conscientious objectors on its website in Dec. 2016, 105 individuals filed a lawsuit with the Seoul Administrative Court asking for the publication decision to be reversed and another lawsuit asking for a stay of execution on the publication until the court made its decision in the first case. In May, the ... Seoul Administrative Court ... ruled that the publication of their personal information should be halted until the final legal decision, citing “concerns that irreparable damages could be incurred.”

Despite the stay of execution ordered by the court, the MMA included conscientious objectors among the draft dodgers whose personal information was published once again this year. In response, 252 individuals filed the same lawsuit once again..... On Dec. 19, ... the Seoul Administrative Court... once again ruled that the publication of the plaintiffs’ personal information should be halted until the court makes its ruling.

8th Circuit Rejects Trooper's Challenge to Required Ride-Along With Chaplain

In Steckelberg v. Rice, (8th Cir., Dec. 26, 2017), the U.S. 8th Circuit Court of Appeals affirmed the district court's dismissal of a suit by a Nebraska State Trooper alleging various complaints about his treatment in connection with his application for a promotion and for a transfer and in handling grievances he filed. One of plaintiff's complaints, focused on during oral argument in the 8th Circuit, was that as part of his required performance improvement plan, he was required to ride along with the State Patrol chaplain, a Catholic priest, for a shift.  The 8th Circuit apparently agreed with the district court's rejection of the argument that this amounted to government coerced proselytization. The Lincoln Journal Star, reporting on the decision, says that a petition for en banc review is likely to be filed.

Top Church-State and Religious Liberty Developments of 2017

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  Usually I select the top ten, but this year I have expanded it to 11. The selection obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Eleven picks for the rather chaotic year that is currently coming to an end:

1.  President Trump issues and reissues restrictions on immigration and entry of refugees which are challenged in the courts as "Muslim bans."

2. Supreme Court's Trinity Lutheran Church decision opens the possibility of expanded governmental aid to religious institutions.

3. Christian Evangelicals remain core supporters of Donald Trump.

4. Trump Administration expands religious and moral exemptions from ACA contraceptive coverage mandate; court challenges filed.

5. The Masterpiece Cakeshop case attracts over 90 amicus briefs as it is argued before the Supreme Court.  The Christian baker's refusal to create a wedding cake for a same-sex couple becomes a symbol of the cultural clash between ideals of religious freedom and equality, even though arguments focus on free speech issues.

6. Congress fails to repeal the Johnson Amendment, despite promises by President Trump.

7. Transgender discrimination and transgender service in the military remain high profile religious and cultural issues in the courts and in the political arena.

8. The Alt-Right march in Charlottesville reveals resurgence of traditional forms of  anti-Semitism.

9. Supreme Court's decision in Advocate Health Care Network v. Stapleton saves retirement plans of religiously affiliated health care networks from unanticipated and costly ERISA coverage.

10. In Israel, government's suspension of an agreement with Judaism's Reform and Conservative movements to construct a separate prayer space at the Western Wall for egalitarian prayer opens a rift with a large segment of the American Jewish community.

11. India's Supreme Court invalidates Triple Talaq marriage for Muslims in India.

For top picks by other observers of the legal and religious scene, see Don Byrd's Top Ten Religious Liberty Stories, and  Religion News Association's Top 10 Religion Stories of the Year Poll.

Recent Articles of Interest

From SSRN:

• Effie Fokas, Kokkinakis at the Grassroots Level, (Religion and Human Rights 12 (2017) 210-222).
• Effie Fokas, The European Court of Human Rights at the Grassroots Level: Who Knows What About Religion at the ECtHR and to What Effects?, (Religion, State and Society, 2017, 45 (3-4)).
• Martha Albertson Fineman & Silas W. Allard, Vulnerability, the Responsive State, and the Role of Religion, (In Exploring Vulnerability, H. Springhart and G. Thomas (eds.), Vandenhoeck & Ruprecht 2017).
• Deborah A. Widiss, Intimate Liberties and Antidiscrimination Law, (Boston University Law Review, Vol. 97, 2017).
• Prakash Shah, Orientalism, Multiculturalism, and Identity Politics: Hindus and the British Caste Law, (Forthcoming in Quaderni di Diritto e Politica Ecclesiastica (special issue: Daimon. Diritto comparato delle religioni) 2017).
• Jim Nicholls, Taken - An Islamic Inspired Collaboration to Facilitate the Freedom of People Taken Hostage Because of Their Nationality, Race or Beliefs, (December 12, 2017).