Intervention Rejected In Contraceptive Mandate Case

In Massachusetts v. United States Health & Human Services, 2018 U.S. Dist. LEXIS 1357 (D MA, Jan. 29, 2018), a Massachusetts federal district court refused to permit Dordt College and March for Life intervene as defendants.  The case involves a challenge to President Trump's expanded religious exemptions from the Affordable Care Act contraceptive coverage mandate.

Recent Articles of Interest

From SSRN:

• John M. Breen & Lee J. Strang, The Thinness of Catholic Legal Education, a Review of Robert J. Kaczorowski, Fordham University Law School: A History, (University of St. Thomas Law Journal, Vol. 15, 2018).
• Luke Beck, The Role of Religion in the Law of Royal Succession in Canada and Australia, (Queen's Law Journal, Vol. 43, No. 1, 2018, pp. 53-84).
• Jeffrey A. Brauch, What is Flawed Perfection?, (Flawed Perfection: What It Means to Be Human and Why It Matters for Culture, Politics, and Law by Jeffrey A. Brauch, 2017).
• Rafael Domingo, Body, Soul, and Spirit of the Law. Towards a Holistic Legal Paradigm, (Oxford Journal of Law and Religion 7 (Forthcoming)).
• Paulette Miniter, Willa Cather's My Antonia and Legal Thought in the Late Nineteenth Century, (Creighton Law Review, Vol. 51, No. 1, 2017).
• Fajri Muhammadin, Towards a Revitalization of Islamic International Law in a 'Eurocentric' World, (Post Graduate Student Society of Ahmad Ibrahim Kuliyyah of Laws Magazine, Forthcoming).
• Lucia Ann Silecchia, Conflicts and Laudato Si': Ten Principles for Environmental Dispute Resolution, (Journal of Land Use & Environmental Law, Vol. 33, No. 1, 2017).
• C.G. Bateman, The Hermeneutics of Sovereignty: The Written Word, State Sovereignty, and Freedom of Religion in the Late Antiquity Roman Empire, (The Journal Jurisprudence, vol. 34 (Hilary Term: December 2017): 311-332).
• Sally Wagenmaker, Why Religious Organizations Shouldn't Lose Tax-Exempt Status Based on Public Policy, Post-Obergefell, (January 11, 2018).
• David Orentlicher, Law, Religion, and Health Care, 8 UC Irvine Law Review (2018).

Repeal of California's Belief Exemption To Vaccination Is Upheld

In Middleton v. Pan, 2018 U.S. Dist. LEXIS 13254 (CD CA, Jan. 25, 2018), a California federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 216203, Dec. 18, 2017) and dismissed a suit brought by a large number of parents of unvaccinated or partly vaccinated children objecting to California's Senate Bill 277, which repealed the state's personal belief exemption from immunization requirements for children entering public and private schools. (See prior posting.) The magistrate concluded that "Mandatory vaccination laws are within the scope of a state's police power."

Recent Prisoner Free Exercise Cases

In Tehuti v. Robinson, 2018 U.S. Dist. LEXIS 9370 (WD VA, Jan. 22, 2018), a Virginia federal district court allowed an inmate to move ahead with his claim that the African American Church should be recognized and its religious services accommodated.

In Scally v. Arsaunt, 2018 U.S. Dist. LEXIS 9915 (ED CA, Jan. 19, 2018), a California federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his complaint that he was strip searched in the presence of female staff members.

In Al-Fuduyi v. California City Facility, 2018 U.S. Dist. LEXIS 10049 (ED CA, Jan. 22, 2018), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that Muslim religious services were not available.

In Tripati v. Corizon Inc., 2018 U.S. Dist. LEXIS 10532 (D AZ, Jan. 23, 2018), an Arizona federal district court dismissed a Hindu inmate's complaint that he could not receive a diet that met both his medical and his religious needs.

In Chappell v. Gilmore, 2018 U.S. Dist. LEXIS 10655 (WD PA, Jan. 22, 2018), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that he was not allowed to attend Nation of Islam services before he changed his religious preference registration.

In McClain v. Murry, 2018 U.S. Dist. LEXIS 10763 (ED PA, Jan. 19, 2018), a Pennsylvania federal district court dismissed with leave to amand an inmate's claim that he was denied religious materials.

In Rahman v. Grafton Correctional Institution, 2018 U.S. Dist. LEXIS 11559 (ND OH, Jan. 24, 2018), an Ohio federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 11562, Jan. 8, 2018) and dismissed for failure to exhaust administrative remedies dismissed a Muslim inmate's complaint about remarks from officers about his religion.

In Love v. Melvin, 2018 U.S. Dist. LEXIS 11810 (CD IL, Jan. 25, 2018), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that he was wrongly removed from the Ramadan list.

In Prosha v. Robinson, 2018 U.S. Dist. LEXIS 12574 (ED VA, Jan. 25, 2018), a Virginia federal district court allowed a House of Yahweh member to move ahead against one defendant on his claim he was provided religiously inadequate meals during Passover.

In Carawan v. Mitchell, 2018 U.S. Dist. LEXIS 13081 (WD NC, Jan. 26, 2018), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that he was forced to reduce the number of books in his possession, which necessarily required him to eliminate religious and legal books.

Pence's Speech To Knesset Gets Theological Criticism

An interesting opinion piece in Haaretz this week titled Lucky the Jews Didn’t Understand What Mike Pence Was Really Saying [access requires subscription or sign-up] suggests that a close analysis of the theological underpinnings of U.S. Vice President Mike Pence's speech to the Knesset on Monday (see prior posting) shows that it was based on Christian supercessionist beliefs. Here are a few edited excerpts that give a flavor of the analysis:

Pence explained that, "It was here, in Jerusalem, on Mount Moriah, that Abraham offered up his son, Isaac, and was credited with righteousness for his faith in God."...

In Genesis 15 ... God takes [Abraham] outside and says that he will have as many descendants as the stars.... Abraham then "had faith in the Lord, and the Lord reckoned it to him as righteousness."

[According to doctoral student Joshua Blachorsky] ... this verse was central to the thought and work of the apostle Paul, who in his letter to the Romans ... uses this verse to explain that Abraham was considered "righteous," worthy of salvation, not because of his observance of the commandments ("works") or his circumcision, the act by which he entered into a divine covenant, but because of his faith.

In Christian readings of Paul, the Jewish Torah and its commandments ... cannot bring about the promises of inheritance to Abraham. Rather, only faith can bring about salvation....

In this reading, Abraham is the father of the faithful, not the father of the circumcised....

The U.S. Vice President stood before the assembled delegates of the Jewish state ... and told them, right after talking about the Holocaust, that Abraham was not their father but that Abraham was his father.

State Supreme Court Victory For Fired Christian Fire Fighter

In Sprague v. Spokane Valley Fire Department, (WA Sup. Ct., Jan. 25, 2018), the Washington state Supreme Court in a 5-4 decision gave an initial victory to fire captain Jonathan Sprague who had been fired for using the fire department's e-mail and electronic bulletin board systems to disseminate information on the Spokane County Christian Firefighter Fellowship that he had formed. The court refused to find that a decision by the Spokane County Civil Service Commission acted as collateral estoppel against Sprague.  On the merits of the claim, the majority found that while the fire department's policy limiting the use of its e-mail system to official business is reasonable, it enforced the policy against Sprague in a way that was not viewpoint neutral. It found that the restrictions on Sprague's use of the bulletin board system were unreasonable. The majority concluded:

On remand, the burden will shift to SVFD to show by a preponderance of the evidence that it would have terminated Sprague even in the absence of his protected conduct. ... SVFD must additionally show that Sprague's termination was justified under ROW 41.08.080, which permits the termination of civil service employees like Sprague only upon certain conditions. Assuming that the trier of fact determines that Sprague's termination was not otherwise justifiable, the trier of fact should then determine the applicable amount of damages that Sprague suffered from SVFD's viewpoint discrimination.

The four dissenters argued that the case should be remanded for the trial court to determine whether the fire department in fact had an unwritten policy that was specifically hostile to religious viewpoints.

Israeli Journalist Threatens To Sue U.S. Embassy Over Sex Separation During Pence Visit To Wall

Haaretz reports that Israeli journalist Tal Schneider is threatening to file a lawsuit against the U.S. Embassy in Israel and the Rabbi of the Western Wall over the separation of women journalists and photographers from male journalists and photographers during Vice President Pence's recent visit to the Western Wall.  As described by Globes, women reporters, relegated behind men, needed to stand on shaky chairs to see Pence at all. The Rabbi of the Western Wall explained:

The photographers were positioned in the lower plaza which is a place of prayer and synagogue, where there is separation of men and women every day and at every type of event. There is nothing new in this and there never was previously any disagreement.

Brownback Confirmed As Religious Freedom Ambassador-at-Large

Yesterday the U.S. Senate confirmed Kansas Governor Sam Brownback as Ambassador-at-Large for Religious Freedom. A 49-49 tie vote on the confirmation was broken by Vice President Pence who voted in favor of the nomination. (Senate Vote Summary).  As reported by the Washington Post:

The vote highlighted how polarizing a figure Brownback has become during what has been a divisive tenure as governor of Kansas....  Brownback had faced opposition from LGBT groups over a decision he made as Kansas governor to scuttle an executive order that barred discrimination based on sexual orientation or gender identity....

Under Trump, the State Department folded its Office of Religion and Global Affairs into the Office of International Religious Freedom that Brownback will now lead. The restructuring gives him a larger profile.

USCIRF issued a press release welcoming the confirmation.

Suit Claims University Employee Dismissed Because of Anti-Muslim Discrimination

A former employee of Youngstown State University's Center for Student Progress filed suit this week claiming that his termination stemmed from discriminatory treatment against him because he is a Muslim.  The complaint (full text) in Jadun v. Youngstown Sate University, (ND OH, filed 1/23/2018) claims that the employee's dismissal violated Title VII of the 1964 Civil Rights Act as well as Ohio anti-discrimination law (ORC 4112.02). WFMJ News reports on the lawsuit.

School District Sued Over Middle East Geography Curriculum

The parent of a New Jersey middle school student filed suit this week against The Chathams school district claiming that the Middle East and North Africa unit of the 7th-grade Geography class violates the Establishment Clause by promoting Islam.  The complaint (full text) in Hilsenrath v. School District of the Chathams, (D NJ, filed 1/23/2018), alleges that an Intro to Islam Video on the Google Classroom assigned to the geography class was a "nearly five-minute long video [which] seeks to convert viewers to Islam and is filled with the religious teachings of Islam presented, not as beliefs, but as facts."  It also contends that an assigned animated presentation on the 5 Pillars of Islam seeks to convert students to Islam.  Thomas More Law Center issued a press release announcing the filing of the lawsuit.

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.