Supreme Court Grants Cert. In 3rd Travel Ban Challenge; Asks For Argument on Establishment Clause

The U.S. Supreme Court today issued an order (full text) granting review in Trump v. Hawaii, (Docket No. 17-965, cert. granted 1/19/2018).   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, but stayed its injunction pending Supreme Court review. (See prior posting.) While the 9th Circuit avoided ruling on plaintiffs' Establishment Clause claim, the Supreme Court ordered the parties to brief and argue that issue (raised as Question 3 in Hawaii's brief in opposition), as well as the issues raised by the original petition for certiorari.  SCOTUSblog's case page has links to additional primary source material relating to the case.

No Title VII Claim Based on "Perceived" Religion

In Cole v. Cobb County School District, (ND GA, Jan. 18, 2018), a Georgia federal district court dismissed Title VII religious discrimination claims brought by a school principal who was transferred to a low performing school far from her home after parents complained about her introduction of mindfulness practices, including yoga, at her school.  The principal is Christian, but parents complained to the school board falsely claiming that the she was a Buddhist and was attempting to indoctrinate their children with Buddhism.  The court held that Title VII does not cover discrimination or reverse discrimination claims based on an individual's perceived, rather than their actual, religion,  The court however did permit plaintiff to move ahead with her Establishment Clause claim.

10th Circuit Reverses Summary Judgment In Title VII Suit By Seventh Day Adventists

In Tabura v. Kellogg USA, (10th Cir., Jan. 17, 2018), the U.S. 10th Circuit Court of Appeals reversed a district court's grant of summary judgment to employer Kellogg in a Title VII suit brought by Seventh Day Adventists who were seeking an accommodation for their Sabbath observance.  The court held:

Title VII required Kellogg reasonably to accommodate Plaintiffs’ religious practice, if Kellogg could do so without incurring undue hardship to its business. Whether Kellogg reasonably accommodated Plaintiffs’ Sabbath observance and, if not, whether Kellogg could do so without undue hardship, must await further proceedings.

In reaching this conclusion, the court rejected arguments that it should adopt per se rules defining reasonable accommodation, and instead emphasized that these issues must be decided on a case specific basis.  Business Insurance reports on the decision.  [Thanks to Steven H. Sholk for the lead.]

Trump Administration Is Planning Expanded Religious and Moral Exemptions For Doctors

The Wall Street Journal reported yesterday that the Trump Administration is planning to expand exemptions from health care anti-discrimination rules for doctors who have religious or moral objections to gender transitioning or abortion.  The Department of Health and Human Services also plans to create  a division of "conscience and religious freedom protections" in the Department's Office for Civil Rights.  HHS sent its rule proposals to the White House for review last Friday.  President Trump might announce the changes on Friday when he addresses the March for Life on the National Mall by satellite. [Thanks to Steven H. Sholk for the lead.]

UPDATE: On Jan. 18, the Department of Health and Human Services formally announced formation of a new Conscience and Religious Freedom Division in its Office for Civil Rights.

"Church Plan" Class Action Settled

Last June, the U.S. Supreme Court held that retirement plans of religiously affiliated health care systems qualify as "church plans" exempt from ERISA. (See prior posting.) Now a settlement has been approved by an Illinois federal district court in a class action suit against Ascension, the largest Catholic health care system in the country. The suit was one of many that challenged the availability of the  church plan exemption.  As reported by Cook County Record:

Under the deal, Ascension agreed to pay $29.5 million into a trust fund, and agreed to not reduce any retiree accrued benefits for at least the next seven years, and provide various annual plan notices, “equitable provisions that mimic certain provisions” of the federal Employee Retirement Income Security Act, according to a memorandum filed by plaintiffs in support of the settlement.

However, the deal would allow Ascension to buy out its full obligation, by contributing $25 million to the trust fund.

3rd Circuit: Preachers' Civil Rights Suit Dismissed On Immunity Grounds

In Karns v. Shanahan, (3rd Cir., Jan. 11, 2018), t U..S. 3rd Circuit Court of Appeals affirmed the dismissal of a civil rights damage action brought by two evangelical Christian ministers who were arrested for preaching on an NJ Transit train platform without the required permit.  In a 2-1 decision, the court held that NJ Transit is an arm of the state and thus has 11th Amendment immunity.  The 3-judge panel agreed unanimously that the police officers who were also sued have qualified immunity.  WHYY News reports on the decision.

Advocacy Groups Say Military Is Imposing Religious Participation On Cadets

The Freedom From Religion Foundation and American Atheists announced this week that they have sent a joint letter (full text) to Secretary of Defense James Mattis complaining about an increased incidence of military members and their families being forced to participate in religious observances at military training facilities. The letter says in part:

By scheduling prayer in graduation ceremonies, and by leading cadets in prayer prior to examinations, our military training facilities are violating the Establishment Clause of the First Amendment. By assigning menial or labor-intensive tasks to cadets who elect not to participate in worship services, these facilities are violating the equal protection principles enshrined in the Due Process Clause of the Fifth Amendment.

Friendly Atheist Blog reports on the letter.

Couple Sues Printer Over Substitution of Anti-Gay Pamphlets For Wedding Programs

The New York Post this week reports on a lawsuit filed in Massachusetts federal district court against Vistaprint.  The company's North American Business Headquarters are located in Boston.  Plaintiffs are a same-sex couple who were married in a ceremony in Pennsylvania last September. The couple had ordered 100 copies of a customized program for their wedding.  When they opened the package Vistaprint sent to them, they found that instead of the programs they had been sent 80 copies of an anti-gay pamphlet titled "‘Understanding Temptation: Fight the good fight of the faith." The pamphlets warn: "Satan entices your flesh with evil desires." Vistaprint, which says it would not discriminate on the basis of sexual orientation, indicated that it had just learned of the incident and have begun an internal investigation.

Wife's Religious Convictions Do Not Override Vermont Divorce Law

In Maghu v. Singh, (VT Sup. Ct., Jan. 12, 2018), the Vermont Supreme Court rejected a wife's attempt to obtain dismissal of a no-fault divorce petition filed by her husband.  The couple was married in India and, among other contentions, the wife argued that Vermont's courts should defer to Indian divorce law. In rejecting that contention, the court said in a footnote:

We reject wife’s argument that the court’s grant of a no-fault divorce contrary to India’s Hindu Marriage Act, and the religious requirements reflected therein, impinges on wife’s free exercise of religion in violation of Chapter I, Article 3 of the Vermont Constitution. Quite the opposite, it would be constitutionally problematic, to say the least, if we began to decline access to a divorce from an otherwise qualified domiciliary on the basis of the religious convictions of the other party. 

Inter-American Human Rights Court Recognizes Same-Sex Marriage and Transgender Rights

In an Advisory Opinion (full text in Spanish) dated Nov. 24, 2017, but apparently first published on Jan. 9, 2018, the Inter-American Court of Human Rights ruled that the American Convention on Human Rights requires governments to recognize family rights of same-sex couples and transgender rights. As reported by the Washington Blade:

The Inter-American Court of Human Rights on Tuesday issued a landmark ruling that recognizes same-sex marriage and transgender rights in the Western Hemisphere. 

The seven judges who issued the ruling stated governments “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex.” Six of the seven judges also agreed that it is necessary for governments “to guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.”

The court issued its ruling after the Costa Rican government in 2016 asked for an advisory opinion on whether it has an obligation to extend property rights to same-sex couples and allow transgender people to change their name and gender marker on identity documents.

The ruling says the Costa Rican government must allow trans people to legally change their name and gender marker on official documents.

According to La Voz,  "Costa Rica is the only country that gives the same weight to a CIDH ruling as it does to a national court’s judicial decision."

Church Camp Loses Challenge To Zoning Decision On Neighboring Dairy Farm

In House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (IN App., Jan. 16, 2018), an Indiana state appeals court rejected a challenge by a church summer camp to a zoning board decision granting a special exception to a dairy farm to operate a concentrated animal feeding operation one-half mile from the summer camp.  The church argued in part that the grant of the special exception substantially burdens its religious exercise by "imperiling the health of the children" at its camp.  The court first held that the federal Religious Land Use and Institutionalized Persons Act is not available to the church here because a RLUIPA claim can be raised only by a person with a property interest in the land that is regulated.  RLUIPA does not extend to other property that is merely affected by a land use decision as to neighboring land.

The court went on to hold that Indiana's state Religious Freedom Restoration Act was also not violated:

The [Board of Zoning Appeal's] apparent assessment that House of Prayer will not be substantially burdened in the exercise of its religion by the grant of the special exception is supported by substantial evidence.

Indiana Lawyer reports on the decision.

Suit Contends Ministerial Exception Does Not Bar Hostile Work Environment Claims

Yesterday's Cook County Record reports on a hostile work environment lawsuit filed in federal court in Chicago by Sandor Demkovich, former organist and music director of St. Andrew the Apostle Church in Calumet City, Illinois.  Demkovich was fired several days after he entered a same-sex marriage. His earlier lawsuit charging employment discrimination was dismissed on "ministerial exception" grounds.  The new lawsuit argues that the ministerial exception doctrine does not apply to hostile work environment claims.

Justice Department Supports Archdiocese Against Washington Area Transit Authority

As previously reported, the Court of Appeals for the D.C. Circuit is considering an appeal by the Archdiocese of Washington challenging the refusal of the Washington Area Metropolitan Transit Authority to accept bus ads that promote religion, religious practices or religious beliefs. Yesterday the U.S. Department of Justice filed an amicus brief (full text) supporting the Archdiocese whose Christmas ad was rejected by WMATA. The brief argues that "WMATA’s policy constitutes unconstitutional viewpoint discrimination." National Law Journal reports on DOJ's action.

Suit In Belgium Challenges Kosher Slaughter Ban

In Belgium yesterday, three organizations filed suit challenging legislation in the Flemish Region of the country that bans kosher and halal slaughter beginning in 2019. As reported by The Daily Mail, the lawsuit contends that the legislation in Flanders violates the freedom of religion protections found in the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the Belgian Constitution. The Coordinating Council of Islamic Institutions has separately filed suit challenging the law. A suit filed last November challenged a similar law enacted by the Walloon Region. (See prior posting.)

Today Is Religious Freedom Day

As reported by Blog from the Capital, today is Religious Freedom Day, the anniversary of the passage of the Virginia Statute of Religious Freedom in 1786. Traditionally the President issues a Proclamation designating the day.

UPDATE: This morning President Trump issued a  Religious Freedom Day Proclamation (full text) which reads in part:

Our Constitution and laws guarantee Americans the right not just to believe as they see fit, but to freely exercise their religion.  Unfortunately, not all have recognized the importance of religious freedom, whether by threatening tax consequences for particular forms of religious speech, or forcing people to comply with laws that violate their core religious beliefs without sufficient justification.  These incursions, little by little, can destroy the fundamental freedom underlying our democracy.  Therefore, soon after taking office, I addressed these issues in an Executive Order that helps ensure Americans are able to follow their consciences without undue Government interference and the Department of Justice has issued guidance to Federal agencies regarding their compliance with laws that protect religious freedom.  No American — whether a nun, nurse, baker, or business owner — should be forced to choose between the tenets of faith or adherence to the law.

French Mayor Bars Pork Alternatives In Schools

The Washington Post yesterday reports on the newest battle in France over how to implement the principle of secularism (laïcité ):

Beaucaire, in the south of France, has become the latest fault line in a battle over the place of Islam in a staunchly secular society. On the day school started back after the holiday break, Julien Sanchez, the town’s 34-year-old mayor — and a member of the far-right National Front — outlawed alternatives to pork in school cafeterias, insisting that religious exceptions to the menu violate France’s vaunted Republican principles.

For many, his message was clear: Being French means eating pork, Muslims (and Jews) be damned. Unsurprisingly, outrage immediately ensued from virtually every corner of society: parents, the local opposition, Muslim leaders and even the French government.

One Count Dismissed In Michigan Female Genital Mutilation Case

A Detroit (MI) federal district court yesterday dismissed the most serious of seven charges against two doctors indicted for their involvement in alleged female genital mutilation of girls who are members of the Dawoodi Bohra, a Muslim sect from western India. (See prior related posting.)  In United States v. Nagarwala, (ED MI, Jan. 14, 2018), the court dismissed the Count charging violation of 18 USC Sec. 2423, Conspiracy to Transport Minor with Intent to Engage in Criminal Sexual Activity.  The court held that "sexual activity" as used in the statute must involve libidinal gratification.  Applying that definition, the court said:

The government does not contend that Dr. Nagarwala or Dr. Attar sought or obtained any libidinal gratification from subjecting the minor victims to FGM....  In short, while the indictment may sufficiently allege a violation of the FGM statute – the statute adopted by Congress to address precisely such genital cutting – it does not allege that defendants transported minors intending that they engage in “sexual activity.” 

Detroit News reports on the decision.

Belief In Government Corruption Is Not a "Religious" Belief

The Daily Sentinel reports that last Thursday a Colorado federal district court jury found Rocky Hutson guilty on multiple fraud charges.  Hutson, a member of the sovereign citizen movement, had attempted to use the Religious Freedom Restoration Act as a defense.  However federal district court Judge Marcia Krieger rejected the defense, saying that while Hutson's beliefs about the corruption of the U.S. government are sincere, but they are not "religious" beliefs.

Recent Articles and Books of Interest

From SSRN:

• Matthew S. Erie, The Afterlife of Property: Affect, Time, Value, (Legalism: Property and Ownership, edited by Hannah Skoda, Tom Lambert, and Georgy Kantor. Oxford University Press, 89-114).
• Josh Blackman, The Domestic Establishment Clause, (Forthcoming in 23 Roger Williams University Law Review).
• Engy Abdelkader, The Muslim Ban and Separation of Powers Doctrine in Trump's America, (State, Religion and Muslims: Between Discrimination and Protection at the Executive, Legislative and Judicial Levels, Forthcoming).
• Michael A. Helfand, Reasoning Through Clashes between Religion and Equality: Case Law, Skeptics, and Social Coherence, (Constitutional Commentary, Vol. 33, 2018, Forthcoming).
• Robert A. Kahn, Denial, Memory Bans and Social Media, (January 2018).
• Michael A., Helfand, Reasoning Through Clashes between Religion and Equality: Case Law, Skeptics, and Social Coherence, (Constitutional Commentary, Vol. 33, 2018).

Recent Books:

• Katherine Ludwig Jansen, Peace and Penance in Late Medieval Italy (Princeton Univ. Press, Dec. 2017).
• Hüseyin Yılmaz, Caliphate Redefined: The Mystical Turn in Ottoman Political Thought, (Princeton Univ. Press, Dec. 2017).
• Mary Ziegler, Beyond Abortion: Roe v. Wade and the Battle for Privacy,  (Harvard Univ. Press, Feb. 2018).

Recent Prisoner Free Exercise Cases

In Carter v. Fleming, (4th Cir., Jan. 8, 2018), the 4th Circuit reversed the district court's grant of summary judgment to defendants in an inmate's suit claiming that the Common Fare menu does not comply with Nation of Islam dietary restrictions because it includes fried foods and challenging his suspension from the Common Fare diet.

In Brooks v. Williams, 2018 U.S. Dist. LEXIS 3050 (Jan. 8, 2018), an Illinois federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 214438, Dec. 19, 2017) and refused to dismiss on exhaustion grounds an inmate's claim that he was denied access to Rastafari Sabbath services.

In Newman v. Grzegorek, 2018 U.S. Dist. LEXIS 3626 (ND IN, Jan. 9, 2018), an Indiana federal district court allowed an inmate to move ahead whit his challenge to jail policies that prevented him from attending church services and Bible study.

In Trisvan v. Annucci, 2018 U.S. Dist. LEXIS 3851 (ED NY, Jan. 9, 2018), a New York federal district court dismissed with leave to file an amended complaint a parolee's claim that his curfew and travel conditions prohibit him from praying at a mosque and participating in Ramadan between 9:00 PM and 7:00 AM, and from making a pilgrimage to Mecca.

In Canseco v. Spearman, 2018 U.S. Dist. LEXIS 3991 (ED CA, Jan. 9, 2018), a California federal magistrate judge dismissed a Muslim inmate's complaint that he was not allowed to attend evening religious activities in the dining hall during Ramadan.

In Wallace v. Ducart, 2018 U.S. Dist. LEXIS 4684 (ND CA, Jan. 10, 2018), a California federal magistrate judge dismissed with leave to amend an inmate's claim that he was required to strip in front of female guards in violation of his religious beliefs, and was not allowed to properly clean himself before prayer.

In Hatcher v. Trotter, 2018 U.S. Dist. LEXIS 4926 (WD TN, Jan. 11, 2018), a Tennessee federal district court, adopting a magistrate's recommendation (2017 U.S. Dist. LEXIS 215104, Dec. 20, 2017) dismissed an inmate's complaint that he was unable to attend Sunday religious services on one occasion due to a lock down.

In Rivera v. Davey, 2018 U.S. Dist. LEXIS 5422 (ED CA, Jan. 10, 2018), a California federal magistrate judge recommended dismissing an inmate's complaint that he was denied the opportunity to perform obligatory Jewish prayer services and holy day events.