Supreme Court Refuses Review In Standing Case Challenging Mississippi's Conscience Law

The U.S. Supreme Court today denied certiorari in Barber v. Bryant, (Docket No. 17-547, cert. denied 1/8/2018) and Campaign for Southern Equality v. Bryant, (Docket No. 17-642, cert. denied 1/8/2018). (Order List.)  In the companion cases, the U.S. 5th Circuit Court of Appeals dismissed challenges to Mississippi's Conscience Protection Act for lack of standing. The law, Mississippi's HB 1523, protects against discriminatory action by state government anyone who acts in accordance with his or her religious beliefs or moral convictions that marriage is only between one man and one woman, sexual relations are reserved to such marriages, and gender is determined by anatomy and genetics at the time of birth. (See prior posting.) An en banc rehearing was denied by the 5th Circuit, over the dissent of two judges.  National Law Journal reports on the Supreme Court's action which leaves the law in effect.

Government Seeks Supreme Court Review of Third Travel Ban

The Justice Department last week filed a petition for certiorari (full text) in Trump v. State of Hawaii, a challenge to the President's third travel ban.  In the case, the U.S. 9th Circuit Court of Appeals held that the third version of President Trump's travel ban is inconsistent with the Immigration and Nationality Act. (See prior posting.)  The 9th Circuit avoided deciding the question of whether the Proclamation violates the Establishment Clause. SCOTUSblog has more on the cert. petition and the background of the case.

Recent Articles of Interest

From SSRN:

• Muhammad Munir, Fundamental Guarantees of the Rights of the Accused in Islamic Criminal Justice System, (Hamdard Islamicus, Issue no. 4 (2017)).
• John Witte, Law, Religion, and Metaphor, (in Günter Thomas and Heike Springhart, eds., Risiko und Vertrauen/Risk and Trust: Festschrift für Michael Welker zum 70. Geburtstag (Leipzig: Evangeliche Verlagsanhalt, 2017), 177-195).
• Muhidin Mulalić & Ahmed Kulanić, Religious Extremism vs. Multiculturalism in Bosnia and Herzegovina, (Poligrafi Journal, Vol. 22, No. 85-86, p. 7-29, 2017).

Recent Prisoner Free Exercise Cases

In Njie v. Yurkovich, (7th Cir., Jan. 5, 2018), the 7th Circuit vacated the district court's dismissal of a lawsuit by a Rastafarian inmate, concluding that the district court wrongly concluded that all the claims were duplicative of those in another pending lawsuit.

In Hoskins v. Spiller, 2018 U.S. Dist. LEXIS 364 (SD IL, Jan. 2, 2017), an Illinois federal district court dis missed without prejudice a Muslim inmate's complaint about religious diet and Ramadan observance. It severed and allowed plaintiff to pursue separately complaints about prayer conditions and religious diet at another institution to which he was transferred.

In LeBaron v. Massachusetts Partnership for Correctional Healthcare, 2017 U.S. Dist. LEXIS 213577 (D MA, Dec. 1, 2017), a Massachusetts federal magistrate judge recommended dismissing claims by a Messianic Jewish inmate that labeling him with a psychiatric condition and forcing him to take mental health drugs substantially burdens his free exercise of religion.

In Aguilar v. Linderman, 2018 U.S. Dist. LEXIS 954 (D AZ, Jan. 2, 2018), an Arizona federal district court allowed an inmate who is an adherent of Assembly of Yahuwah-Is to move ahead with his complaint regarding a religious diet, but dismissed claims of inadequate religious feast meals and refusal to deliver religious literature mailed to him.

In Wonsch v. Garner, 2018 U.S. Dist. LEXIS 74 (WD OK, Jan. 2, 2018), an Oklahoma federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 213803, Nov. 22, 2017) and dismissed an inmate's claim that he was denied access to clergy, and was requred to take an 8-week Bible study course to be approved for baptism.

In Townsend v. Ouellette, 2018 U.S. Dist. LEXIS 1427 (WD MI, Jan. 4, 2017), a Michigan federal district court allowed a Buddhist inmate to move ahead with his complaint that he was denied a vegan-compliant Vitamin B-12 supplement, but dismissed his complaints regarding religious oil restrictions and denial of a PSA blood test in place of a digital rectal exam that violates his religious beliefs.

In Watford v. Newbold, 2018 U.S. Dist. LEXIS 1636 (SD IL, Jan. 4, 2018), and Illinois federal district court dismissed an inmate's claim that denial of dental and medical treatment violates his religious obligation to properly care for his body.

Amish Couple Required To Connect Property To Sewer System With Electric Pump

In Yoder v. Sugar Grove Area Sewer Authority, (Commonwlth. Ct. PA, Jan. 5, 2018), a Pennsylvania state appellate court, in a 2-1 decision, upheld the denial of an injunction sought by an Old Order Amish couple who object to the requirement that they connect to the local sewer system using an electric pump.  The dispute has wound its way through the courts for over five years.  (See prior related posting.)  The majority said in part:

Owners did not establish the injunction would not harm the public, or that the harm in denying the injunction outweighed the harm in granting it. We defer to the trial court’s findings as to weighing the harms and the adverse effect of an injunction on the public health. After several years of litigation on multiple fronts, we recognize a strong interest in accomplishing the mandatory connection without further delay. Because there are apparently reasonable grounds for the trial court’s denial of preliminary injunctive relief, we affirm.

Judge McCullough dissented, relying on the state's Religious Freedom Protection Act. She argued that the trial court wrongly placed the burden on the property owners, rather than the sewer authority, to show the least restrictive means of furthering the state's interest.  She went on:

... [T]his case [should be] remanded to the trial court with the instruction to place the burden on the Authority to demonstrate the least intrusive means of non-electric connection to its sewer system. It may be that there are none and, if that is the case, then the trial court should re-open the issue of compelling Owners, against their sincerely held religious beliefs, to connect to the Authority’s sewer system. The Act requires the interest of the agency/authority to be “compelling” before it imposes a substantial burden on religious freedom. I question whether mandatory electric connection is such a compelling interest so as to countenance this infringement upon Owners’ religious freedom.

4th Circuit Strikes Down Baltimore's Posting Requirement For Pregnancy Centers

In Greater Baltimore Center for Pregnancy Concerns, Inc., v. Mayor and City Council of Baltimore, (4th Cir., Jan. 5, 2018), the U.S. 4th Circuit Court of Appeals held unconstitutional a Baltimore ordinance requiring any "limited service pregnancy center" to post a notice in its waiting room telling clients that it "does not provide or make referral for abortion or birth-control services."  Finding that the speech being regulated is neither commercial speech nor professional speech, the Court held that the ordinance violates plaintiffs' 1st Amendment rights.  The Court said in part:

The dangers of compelled speech in an area as ideologically sensitive and spiritually fraught as this one require that the government not overplay its hand. Without proving the inefficacy of less restrictive alternatives, providing concrete evidence of deception, or more precisely targeting its regulation, the City cannot prevail. The Baltimore ordinance, as applied to the Center, fails to satisfy heightened First Amendment scrutiny.

...This court has in the past struck down attempts to compel speech from abortion providers.... And today we do the same with regard to compelling speech from abortion foes. We do so in belief that earnest advocates on all sides of this issue should not be forced by the state into a corner and required essentially to renounce and forswear what they have come as a matter of deepest conviction to believe.

This is the second time that the case has made it to the 4th Circuit. (See prior posting.) The Baltimore Sun reports on the decision.

State Department Names "Countries of Particular Concern"

The State Department announced yesterday that it has redesignated ten countries as Countries of Particular Concern (CPC) under the International Religious Freedom Act. CPC's are nations guilty of the most egregious violations of religious liberty. The countries are: Burma, China, Eritrea, Iran, North Korea, Sudan, Saudi Arabia, Tajikistan, Turkmenistan, and Uzbekistan.  The Sate Department also placed Pakistan on a Special Watch List-- a new category created by 2016 amendments to the International Religious Freedom Act. This category is for countries with severe violations of religious freedom.  Last April, the U.S. Commission on International Religious Freedom had recommended six additional countries be added as CPC's. (See prior posting.)  In a Release yesterday praising the State Department's action, USCIRF urged the Department to also exercise its authority to designate non-governmental groups as "Entities of Particular Concern."

Parole Condition Barring Church Attendance Is Enjoined

In Manning v. Powers, 2017 U.S. Dist. LEXIS 213749 (CD CA, Dec. 13, 2017), a California federal district court granted a preliminary injunction banning the government from enforcing two parole conditions imposed on Sherman Manning, a Baptist minister who had served 25 years in prison for sexual assaults on teenage boys.  One of the challenged conditions prohibited Manning from entering places where children congregate.  Authorities had interpreted that to prohibit him from entering any church.  In invalidating that broad prohibition, the court said in part:

To withstand constitutional scrutiny, a prohibition that is not neutral or generally applicable must advance "only those interests of the highest order," and be narrowly tailored to serve those state interests.... That criteria is not met here. Although public safety is a compelling state interest, the court finds that a blanket restriction on Manning's churchgoing is not narrowly tailored to suit this interest. None of Manning's convictions have any connection to churches or religious activity.... Additionally, the alleged prohibition is overbroad in that it may reach even church events at which no children, or very few children, are ever present. Therefore, the court concludes that an interpretation of SCP 18 that imposes a blanket prohibition on churchgoing is likely to result in a violation of the Free Exercise Clause.

USCIRF Praises US Sanctions Against Burmese General

In a Dec. 21 press release, the U.S. Treasury Department announced the first sanctions under the Global Magnitsky Human Rights Accountability Act.  this week, the U.S. Commission on International Religious Freedom issued a press release focusing particularly on sanctions imposed on a Burmese army general for his abuses directed at Rohingya Muslims. USCIRF said in part:

USCIRF has long called for targeted sanctions against violators of religious freedom....  Tools that could be used include the Global Magnitsky Act, the Treasury Department’s “specially designated nationals” (SDN) list, and other provisions under the International Religious Freedom Act (IRFA).

Specific to Burma, USCIRF praises the inclusion of General Maung Maung Soe in the list of sanctioned individuals.  As the former head of the Burmese Army’s Western Command, he oversaw military operations in Rakhine State and myriad human rights abuses that resulted in more than 700,000 Rohingya Muslims fleeing the country since 2016.

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.