Republication of SPLC Hate Group Label Did Not Violate Lanham Act

The Southern Poverty Law Center  which tracks hate groups in the United States lists Liberty Counsel as an anti-LGBT hate group. GuideStar, an organization that provides information about non-profits to members of the public, picked up SLPC's hate group labels and included them in its descriptions of non-profits. In Liberty Counsel, Inc. v. GuideStar USA, Inc., (ED VA, Jan. 23, 2018), a Virginia federal district court dismissed a suit contending that GuideStar's republication of the hate group label for Liberty Counsel violated the Lanham Act.  The Lanham Act imposes civil liability on any person who "in a commercial advertising or promotion, misrepresents the nature, characteristics, qualities ... of ... another person's goods, services, or commercial activities...." The court held that GuideStar's use of SLPC's labels is not commercial speech, and thus is not covered by the Lanham Act, adding:

Defendant's review of Plaintiffs organization would fall under the laws of the First Amendment, not that of the Lanham Ac.... Specifically, Defendant has an expressive right to comment on social issues under the First Amendment.

In a press release announcing the decision, Liberty Counsel said it is considering an appeal.

KFC Franchisee Loses Right To Advertise Halal Chicken

In Lokhandwala v. KFC Corporation, (ND IL, Jan. 23, 2018), an Illinois federal district court strictly enforced the provisions of a franchise agreement and upheld KFC's policy of barring a franchisee from advertising that it sells Halal chicken. While KFC allowed the marketing of Halal chicken by plaintiff for 14 years, in 2016 or 2017 it revoked consent based on a 2009 company policy prohibiting franchisees from making religious dietary claims.  The policy was based on concerns about varying religious standards and compliance difficulties.  Courthouse News Service reports on the decision.

Christian Student Group Gets Preliminary Injunction Because of Selective Enforcement

In Business Leaders in Christ v. University of Iowa, (SD IA, Jan. 23, 2018), an Iowa federal district court issued a preliminary injunction requiring the University of Iowa to restore for 90 days the registered student organization status of Business Leaders in Christ.  The University revoked the group's registration for failure to comply with the University's Human Rights Policy.  The organization required that executive officers agree to live by Biblical principles. The University found that this would disqualify individuals from leadership positions based on sexual orientation and gender identity.

The court concluded that the University's policy, as written, does not violate plaintiffs' free expression rights. However, the court found that as applied the policy is not viewpoint neutral and thus violates plaintiff's rights. Relying particularly on apparent non-enforcement against a Shia Muslim student organization, the court concluded that "on the current record ... BLinC has shown that the University does not consistently and equally apply its Human Rights Policy." The court said that after the expiration of the preliminary injunction, the University may prevent further injunctions by showing a change to its enforcement of its Policy. Cedar Rapids Gazette reports on the decision. Becket's case page has further background.

Missouri Supreme Court Hears Oral Arguments In Satanic Temple Believer's Challenge To Abortion Law [UPDATED]

As reported by the Washington Post, the Missouri Supreme Court yesterday heard oral arguments in Doe v. Nixon,  a case brought by a woman who is a member of the Satanic Temple, challenging Missouri's restrictions on abortion. (See prior related posting.) Missouri's requires that abortion providers give patients a pamphlet that states :"The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being." Plaintiff contends that this violates her rights under the state's Religious Freedom Restoration Act. As reported by the Post:

[T]he Satanic Temple has a set of tenets that stipulate that a woman’s body “is inviolable and subject to her will alone”; that “she makes decisions regarding her health based on the best scientific understanding of the world, even if the science does not comport with the religious or political beliefs of others”; and that “human tissue,” — how the complaint defines a pregnancy dating to its conception — is part of her body that “she alone” can decide whether to remove.

UPDATE: A recording of the full oral arguments is now available online. According to a press release from the Satanic Temple:

D. John Sauer, Missouri’s Solicitor General announced to the State’s Supreme Court that ultrasounds are not mandatory to obtain an abortion. This information no doubt comes as a surprise to Missouri’s abortion providers who regularly perform ultrasounds they have perceived as mandated by the State. The issue arose during oral arguments in The Satanic Temple’s (TST) lawsuit, which asserts that State interference with the ability for a member of TST ... to terminate her pregnancy violates her rights under Missouri’s Religious Freedom Restoration Act (RFRA) because that interference has no medical or other compelling purpose.... 

... In an audio recording of the arguments published by the court, Justices of the court asked the State’s representative if, “it’s the position of the State that an ultrasound does not have to be conducted unless a person says they want the opportunity to hear the fetal heartbeat.” (13:16) Mr. Sauer affirms that the State’s interpretation of statute (MO Rev Stat § 188.027) is that women only be offered the “opportunity,” to have an ultrasound and listen to the fetal heartbeat, and if a woman declines hearing the audio, the ultrasound need not be performed and the requirement has been satisfied (15:20).

Impact On The Ground of School-Prayer Lawsuit

As previously reported, in December the mother of a Louisiana high school student filed suit against a local school board alleging extensive Establishment Clause violations.  Yesterday, CNN took an in-depth look at the extent to which religion has pervaded Lakeside Junior/High School, and at the impact on students and parents of the school's decision, in response to the pending lawsuit, to end recitation of the Lord's Prayer each morning.

Supreme Court Review Sought In Prisoner Free Exercise Case

Yesterday, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Hoever v. Belleis.  In the case, the 11th Circuit held that denial of an English language Bible and devotional materials to an inmate for 20 days while in disciplinary confinement did not impose a substantial burden on his religious exercise. (See prior posting.)  The petition for review argues that the 11th Circuit created a circuit split by holding that only a burden on a practice mandated by a prisoner’s faith can constitute a substantial burden. It also seeks review on the issue of the availability of compensatory damages in prisoner cases alleging 1st Amendment violations.

Pence Speaks To Israel's Knesset

Yesterday U.S. Vice President Mike Pence delivered a lengthy address (full text) to Israel's Knesset (Parliament).  His remarks included numerous religious references and references to Jewish history.  He said in part:

In the story of the Jews, we’ve always seen the story of America. It is the story of an exodus, a journey from persecution to freedom, a story that shows the power of faith and the promise of hope.

My country’s very first settlers also saw themselves as pilgrims, sent by Providence, to build a new Promised Land. The songs and stories of the people of Israel were their anthems, and they faithfully taught them to their children, and do to this day. And our founders, as others have said, turned to the wisdom of the Hebrew Bible for direction, guidance, and inspiration....

The Jewish people’s unbreakable bond to this sacred city reaches back more than 3,000 years. It was here, in Jerusalem, on Mount Moriah, that Abraham offered his son, Isaac, and was credited with righteousness for his faith in God.

It was here, in Jerusalem, that King David consecrated the capital of the Kingdom of Israel. And since its rebirth, the modern State of Israel has called this city the seat of its government.

Suit Over Opening Prayers In Courtroom Survives Motion To Dismiss

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 19, 2018), a Texas federal district court refused to dismiss a an Establishment Clause challenge to the practice by a Texas Justice of the Peace of opening each court session with a lengthy Christian prayer by a guest chaplain from his chaplaincy program. The court concluded that two of the three plaintiffs had standing, and that they had stated a plausible claim that the judge's prayer practice violates the Lemon test.  the judge had campaigned on a platform of reinstituting religious values within the office.  Both Freedom From Religion Foundation and First Liberty issued press releases announcing the decision. First Liberty also has links to some of the pleadings in the case.  (See prior related posting.)

Recent Articles of Interest

From SSRN:

• John M. Bickers, False Facts and Holy War: How the Supreme Court’s Establishment Clause Cases Fuel Religious Conflict, (January 10, 2018).
• Mark Movsesian, Markets and Morals: The Limits of Doux Commerce, (William and Mary Business Law Review (Forthcoming)).
• Harold Berman & John Witte, The Integrative Christian Jurisprudence of John Selden, (in: R.H. Helmholz and Mark Hill, eds., Great Christian Jurists in English History (Cambridge: Cambridge University Press, 2017), 139-61).
• Adam Chodorow & Ellen P. Aprill, The Parsonage Exemption Subsidizes Religion, (Tax Notes, Dec. 18, 2017).
• Fabienne Bretscher, Religious Freedom of Members of Old and New Minorities: A Double Comparison, (Erasmus Law Review, Vol. 10, No. 3, 2017).
• Jacco Bomhoff, Immanence and Irreconcilability: On the Character of Public Law as Political Jurisprudence, (Forthcoming in: M. Wilkinson & M. Dowdle (eds.), Questioning the Foundations of Public Law (Hart Publishing)).
• Gregory Scott Parks & Derek S. Hicks, ‘How Much a Dollar Cost?’ Political Ideology, Religion, and Poverty Policy Through the Lens of Kendrick Lamar’s Music, (January 18, 2018).
• Antje von Ungern-Sternberg, The Obama Era: Freedom of Religion, (Forthcoming, Anna-Bettina Kaiser, Niels Petersen and Johannes Saurer (eds.), The U.S. Supreme Court and Contemporary Constitutional Law: The Obama Era and Its Legacy, 2018).
• Marc Edelman, Trumped by the Courts? Exploring Gender Minorities' Bathroom Rights Under the Donald Trump Presidency, (University of Louisville Law Review, Vol. 56, 2018).
• Stephen Rushin & Griffin Sims Edwards, The Effect of President Trump's Election on Hate Crimes, (January 14, 2018).

From SmartCILP:

• Sofie G. Syed. Liberte, Egalite, Vie Privee: The Implications of France's Anti-Veil Laws for Privacy and Autonomy, 40 Harvard Journal of Law & Gender 301-332 (2017).
• Linda Przybyszewski, Scarlet Fever, Stanley Matthews, and the Cincinnati Bible War, 42 Journal of Supreme Court History 256-274 (2017).
• Hon. Michael B. Mukasey, Judicial Independence: The Fortress Threatened From Within, 47 University of Memphis Law Review 1223-1233 (2017).

Recent Prisoner Free Exercise Cases

In Ollie v. Illinois Department of Corrections, 2018 U.S. Dist. LEXIS 6684 (SD IL, Jan. 16, 2018), an Illinois federal district court dismissed a Christian inmate's complaint that he was not allowed to attend congregate religious services while in the Staff Assaulter Program.

In Jackson v. Climmer, 2018 U.S. Dist. LEXIS 6656 (D OR, Jan. 16, 2018), an Oregon federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 215490, Nov. 22, 2017) and dismissed an inmate's allegations that pork was included in his diet.

In Thompson v. Premo, 2018 U.S. Dist. LEXIS 7907 (D OR, Jan. 16, 2018), an Oregon federal district court, in an inmate's challenge to his sentence, rejected his argument that jurors' free exercise rights were infringed when jurors were death-qualified for the guilt phase of his trial.

In Braziel v. Roy, 2018 U.S. Dist. LEXIS 7106 (D MN, Jan. 17, 2018), a Minnesota federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 215627, Dec. 21, 2017) and dismissed a Muslim inmate's complaint regarding his suspension from the religious diet program and the policy underlying his suspension.

In Ramsey v. Fischer, 2018 U.S. Dist. LEXIS 9114 (WD NY, Jan. 18, 2018), a New York federal magistrate judge recommended dismissing an inmate's complaint that upon transfer it took a week for him to be placed on the kosher meal plan and another month to receive matzah and grape juice for Friday evening Sabbath services.

Nuns Argue RFRA Claim As To Pipeline Before 3rd Circuit

On Friday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Adorers of the Blood of  Christ v. FERC.  In the case, a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order. (See prior posting.)  At issue is whether the nuns should have used procedures set out in the Natural Gas Act to raise their objections. NPR reports on the oral arguments.

Report Says Women of Color Disproportionately Give Birth In Catholic Hospitals In 19 States

The Columbia Law School Public Rights/ Private Conscience Project yesterday released a new report Bearing Faith: The Limits of Catholic Health Care for Women of Color. The study focuses on racial disparities of women giving birth in Catholic hospitals governed by Ethical and Religious Directives for Catholic Health Care Services.  According to the report:

The ERDs forbid hospitals owned by or affiliated with the Catholic Church ... from providing many forms of reproductive health care, including contraception, sterilization, many infertility treatments, and abortion, even when a patient’s life or health is jeopardized by a pregnancy. Catholic hospitals represent a large and growing part of the U.S. health care system. One in six hospital beds in the country is in a hospital governed by the ERDs....

This study finds that in nineteen out of the thirty-four states/territories that we studied, women of color are more likely than white women to give birth at hospitals bound by the ERDs.

The study found that in 12 states and one territory, Catholic hospitals disproportionately served white women, two states showed little disparity, and seven states had no Catholic birth hospitals.

Trump Administration Takes Several Actions Supporting Pro-Life Advocates

As reported by CNN, today was the 45th annual March for Life in Washington, D.C.  Both Vice-President Pence and President Trump addressed the marchers via video feed from the White House Rose Garden. (Video of remarks.) Today, President Trump also issued a Proclamation (full text) declaring January 22 as National Sanctity of Human Life Day. The White House additionally issued a Fact Sheet titled President Donald J. Trump is Standing Up for the Sanctity of Life.

Today, the Department of Health and Human Services also announced two pro-life initiatives. The HHS Office for Civil Rights issued a 216-page release (full text) proposing revisions in in order to expand enforcement authority as to rules that protect conscience objections in delivery of health care services. Second, the Department of Health and Human Services issued a Letter to State Medicaid Directors (full text) rescinding SMD #16-005, a 2016 letter to Medicaid.  That letter which today's action rescinded provided in part:

... [S]tates may not deny qualification to family planning providers, or take other action against qualified family planning providers, that affects beneficiary access to those providers—whether individual providers, physician groups, outpatient clinics or hospitals—solely because they separately provide family planning services or the full range of legally permissible gynecological and obstetric care, including abortion services (not funded by federal Medicaid dollars, consistent with the federal prohibition), as part of their scope of practice.

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.