Monday, February 05, 2018

Recent Articles of Interest [UPDATED]

From SSRN:
From SmartCILP:

Ministerial Exception Does Not Apply When Defendant Is Not Plaintiff's Employer

In McRaney v. North American Mission Board of the Southern Baptist Convention, Inc., (ND MS, Jan. 18, 2018), a Mississippi federal district court rejected ministerial exception and ecclesiastical abstention defenses in a suit alleging intentional interference with business relationships, defamation and intentional infliction of emotional distress. At issue was the termination of plaintiff, the executive director of the General Mission Board of the Baptist Convention for Maryland/ Delaware, at the insistence of defendant NAMB. The court held that the ministerial exception doctrine does not apply when the defendant in a lawsuit is not the employer of plaintiff. The court also held that adjudicating plaintiff's claims will not necessarily involve examination of church doctrine or internal church governance. The Message reports on the decision.

Court Stays Removal Of 50 Indonesian Christians Living In New Hampshire

In Devitri v. Cronen, (D MA, Feb. 1, 2018), a Massachusetts federal district court stayed the deportation of 50 Indonesian Christians living in New Hampshire while they seek to reopen their cases based on changed country conditions. The Indonesians, who had orders of removal issued against them, had been living under a 2010 humanitarian program called "Operation Indonesian Surrender." Last summer the government terminated the program and told petitioners that they would need to return to Indonesia within 60 days.  Petitioners say they are likely to face persecution or torture in Indonesia because of their Christian faith. AP reports on the decision.

Suit Alleges Harassing Stake Out of Jewish Religious Services By Zoning Officials

A Jan. 24 story by GannettNJ reports on a lawsuit filed by Jackson, NJ resident Isaac Tawil who alleges that Township Council Vice President Rob Nixon has prompted zoning code enforcement officers to stake out his home on Friday evenings to observe Jewish religious services there.  The lawsuit alleges that "The repeated presence of these officers had a chilling effect, was intimidating and became a form of harassment."  The suit was filed in the context of increasing tensions between longtime residents and the growing Orthodox Jewish community that is moving into the Township.

Settlement Reached In NJ Mosque Zoning Lawsuit

Jersey Journal reported last week that a settlement has been reached in Bayonne Muslims v. City of  Bayonne, a RLUIPA lawsuit filed in New Jersey federal district court last May. (See prior posting.) Under the settlement, construction of a community center and mosque will be approved by Bayonne's Zoning Board after a revised application is filed and a public meeting is held.  The city will also pay $280,000 for plaintiff's attorneys' fees and an additional $120,000 in damages.

UPDATE: AP reported (March 13) that the Bayonne zoning board gave final approval to the project.

Most of Church Director's Claims Dismissed Under Ecclesiastical Abstention Doctrine

In Kelly v. St. Luke Community United Methodist Church, (TX App., Feb. 1, 2018), a Texas state appellate court applied the ecclesiastical abstention doctrine to dismiss most of the claims brought by a fired church Director of Operations. The court said in part:
the substance of Kelly’s claims for negligence, fraud, misrepresentation, age and sex discrimination, and  defamatory statements published within the church community relates to internal matters of church governance and each of those claims is “inextricably intertwined” with those internal matters.... While the elements of those claims can be ascertained using secular principles, the application of those principles to impose civil liability on appellees would impinge upon the church’s ability to manage its internal affairs.
However the court allowed plaintiff to move ahead with her  defamation claim based on statements published to persons outside the church.

Sunday, February 04, 2018

DC Appeals Court Remands In Controversy Over Outreach To GW Jewish Students

In Steiner v. American Friends of Lubavitch (Chabad), (DC Ct. App., Feb. 1, 2018), the District of Columbia Court of Appeals found no absolute bar to enforcement of a non-compete clause in a contract of a Chabad rabbi who had been popular with Jewish students at George Washington University. However the court held that the trial court had enforced the clause too broadly.  At issue are tensions that have extended for many years between the Chabad organization and Rabbi Yehuda Steiner who had been employed to engage in campus outreach for Chabad.  After Steiner was fired, he continued his religious outreach to students. The Chabad organization brought a breach of contract action. The trial court applied the doctrine of equitable reformation to issue an injunction against Steiner, but limited non-competition to two years, to serving currently enrolled students, and to an area within one mile from campus. In this appeal, the court held:
Here, neither the noncompete as originally drafted nor the clause as reformed in the trial court‘s modified preliminary injunction contains terms that would require religious interpretation and therefore preclude a civil court‘s review of this dispute.
However the appellate court held that the trial court's injunction was too broad insofar as it limits activities that Rabbi Steiner and his wife can continue in their personal capacities, rather than through a competing organization. the court added:
More than 100 GW students signed a petition attesting to the special personal relationship they shared with their religious leader, Rabbi Steiner.  In such circumstances, the public interest may bear on the level of scrutiny we will apply to a decision to judicially modify a restrictive covenant.....
In this same vein, the profession of religious minister or rabbi is unique in that the tasks performed in an employment context overlap to a large extent with actions such a professional might undertake in his or her free time, without expectation of payment, as a member of the community engaging in religious practice or dialogue. It is thus imperative that an employer wishing to prohibit certain behavior post-termination narrowly tailor with specific language a restrictive covenant....
The court also remanded for clarification of a non-interference provision, and for a determination of whether the non-compete applies to Rabbi Steiner's wife as well.

Negligent Hiring Suit Against Catholic Diocese May Proceed

In Doe v. Norwich Roman Catholic Diocesan Corp., 2018 Conn. Super. LEXIS 45 (CT Super. Ct., Jan. 5, 2018), a Connecticut trial court refused to dismiss a suit alleging childhood sexual abuse of plaintiff at a Catholic school. The court said in part:
[P]laintiff has alleged negligent hiring and supervision of Brother Paul in his role as a school administrator, executive director, and teacher. Even if the plaintiff had alleged that Brother Paul was a priest ..., the "theological perceptions" of Brother Paul are irrelevant for the purposes of his fitness for ministry. Instead, any determination of whether the defendants evaluated Brother Paul's fitness for acting as a priest and teacher at the Academy center on his criminal conduct and/or propensity for the same.... [B]ecause the plaintiff has broadly alleged a secular negligent hiring and supervision claim as to Brother Paul's role as a school administrator, executive director, and teacher, the defendants' motion to dismiss ... is denied.

Court Enjoins Kansas Anti-Israel Boycott Law

In Koontz v. Watson, (D KA, Jan 30, 2018), a Kansas federal district court issued a preliminary injunction barring Kansas form enforcing Kan. Stat. Ann. § 75-3740f(a).  The law requires all state contractors to certify that they are not engaged in a boycott of Israel. The law was challenged by a teacher who is a member of the Mennonite church who wants to participate as a teacher trainer in the state's Math and Science Partnership program.  The court, relying on the U.S. Supreme Court's 1982 decision in NAACP v. Claiborne Hardware Co., concluded that the law infringes plaintiff's free speech rights:
Ms. Koontz, other members of the Mennonite Church, and others have “banded together” to express, collectively, their dissatisfaction with Israel and to influence governmental action.... She and others participating in this boycott of Israel seek to amplify their voices to influence change, as did the boycotters in Claiborne. The court concludes that plaintiff has carried her burden on the current motion to establish that she and others are engaged in protected activity.
The ACLU issued a press release announcing the decision, and has links to other documents in the case.

Tuesday, January 30, 2018

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.

Monday, January 29, 2018

Recent Articles of Interest

From SSRN:

Sunday, January 28, 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.

Friday, January 26, 2018

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.

Thursday, January 25, 2018

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.