Denial of Spousal Health Benefits Because of Religious-Only Ceremony May Violate Equal Protection Clause

In Ali v. Cooper, (ND CA, Jan. 30, 2018), a California federal district court refused to dismiss an equal protection claim by an employee of the Alameda Housing Authority (AHA) after her husband's health insurance coverage was terminated.  The action was taken by the Executive Director (Cooper) and Director of Human Resources (Basta) because the couple were married in a Muslim solemnization ceremony without a civil marriage certificate. Plaintiff claims that the two defendants were motivated by religious animus in singling her out and invoking a rarely used obscure policy to deny coverage. The court said in part:

Plaintiff adequately states a claim for intentional discrimination on the basis of her religion under the Equal Protection Clause against Defendants Cooper and Basta. This claim, however, is inadequately pled against the AHA ... because Plaintiff does not allege that the official marriage-certificate policy itself was motivated by animus, but rather, that the Individual Defendants’ enforcement of the policy against her was motivated by animus....

There may be an argument that Defendant’s marriage-certificate policy might not be narrowly tailored to achieve a compelling state interest if it fails to recognize a marriage that lacks a civil certificate but is nevertheless legally valid. At this time, however, Plaintiff has not alleged that her marriage was legally-valid.... Additionally, Plaintiff has not alleged that the marriage-certificate policy burdens a sincerely held religious belief. Thus, at this time, this First Amendment theory is inadequately pled.

Challenges To Placement On Terrorist Watch List Are Dismissed

In Amiri v. Kelly, (ED MI, Jan. 30, 2018), a Michigan federal district court dismissed claims challenging denial of a visa to a British national and placement of him and his wife (a permanent U.S. resident who is an Iranian national and a British citizen) on a terrorist watch list.  Plaintiffs claim that the data bases used by the government in making these decisions contain unsubstantiated information based on plaintiffs' imputed Muslim religious beliefs.  In rejecting plaintiffs' 1st Amendment challenge, the court said in part:

Plaintiffs have failed to state a claim for a violation of the establishment clause of the first amendment, as they have identified no government action with a non-secular purpose that has a principal effect of advancing or inhibiting religion, or that results in excessive government entanglement with religion..... Plaintiffs also fail to state a claim under the free exercise clause. They do not allege that they have been compelled to engage in a practice that violates their religious convictions, refrain from doing an act required by their religious convictions, or affirm or deny a belief contrary to their religious convictions. Indeed, Plaintiffs do not claim to be Muslim, but rather accuse Defendants of presuming they are Muslim.... 

Plaintiffs also fail to state an equal protection claim as they fail to allege that they have been treated differently than similarly situated individuals of a different nationality....  Nor do they allege that they are treated differently based on their religion, as they do not claim to be Muslim.

Recent Prisoner Free Exercise Cases

In Michalski v. Semple, 2018 U.S. Dist. LEXIS 13382 (D CT, Jan. 28, 2018), a Connecticut federal district court allowed a Native American inmate t move ahead with his complaint that officials refused to provide adequate winter clothing during his smudging times. It also permitted adding of a defendant to his complaint over denial of smudging.

In Stoltzfus v. Hutchins, 2018 U.S. Dist. LEXIS 14539 (SD IN, Jan. 30, 2018), an Indiana federal district court dismissed an inmate's claim that he was denied access to a Bible.

In Slater v. Askew, 2018 U.S. Dist. LEXIS 14757 (MD AL, Jan. 30, 2018), an Alabama federal magistrate judge recommended dismissing for failure to exhaust administrative remedies a Muslim inmate's complaint regarding wearing a beard, religious services and classes, religious mail, religious ID cards and other religious items.  UPDATE: The court adopted the recommendation at 2018 U.S. Dist. LEXIS 30940 (Feb. 27, 2018).

In Staples v. Bellafonte, 2018 U.S. Dist. LEXIS 14950 (D NJ, Jan. 26, 2018), a New Jersey federal district court dismissed an inmate's free exercise and religious discrimination claims against a county jail.

In Wright v. Stallone, 2018 U.S. Dist. LEXIS 15732 (ND NY, Jan. 31, 2018), a New York federal district court issued a preliminary injunction allowing a Muslim inmate to engage in individual demonstrable prayer during outdoor recreation, but denied a preliminary injunction as to group prayer.

In Pouncil v. Sherman, 2018 U.S. Dist. LEXIS 15961 (ED CA, Jan.31, 2018), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that he was denied meals on one night of Ramadan.

Recent Articles of Interest [UPDATED]

From SSRN:

• Engy Abdelkader, Humanitarian Islam, (Pace International Law Review, (Forthcoming).
• Teresa Stanton Collett, Government Schools, Parental Rights, and the Perversion of Catholic Morality, (Acton Institute's Markets and Morality (2018, Forthcoming)).
• Andrew J. Haile, Reconsidering Selective Conscientious Objection, (January 31, 2018).
• Rachel Sklar, Holocaust-Era Art Restitution Claims: Is the HEAR Act a Game Changer?, (12 Revista de Derecho Privado 159 (2017)).
• Wendy E. Parmet & Jason A. Smith, Free Speech and Public Health: Unraveling the Commercial-Professional Speech Paradox, (Ohio State Law Journal, Vol. 78, No. 4, pp. 887-915 (2017)).
• Kristi L. Bowman, A Counterfactual History of Transgender Students' Rights, (Journal of Constitutional Law Online, Vol. 20, 2017).
• Nan D. Hunter, Varieties of Constitutional Experience: Direct Democracy and the Marriage Equality Campaign, (UCLA Law Review, Forthcoming).
• Kathryn Chan, Chapter 3 - Public Benefit and the Substantive Public Law-Private Law Divide, (Kathryn Chan, The Public-Private Nature of Charity Law (Oxford: Hart Bloomsbury, 2016)).

From SmartCILP:

• Leonard M. Niehoff & Deeva Shah, The Resilience of Noxious Doctrine: The 2016 Election, the Marketplace of Ideas, and the Obstinacy of Bias, 22 Michigan Journal of Race & Law 243-271 (2017).
• Richard H. Fallon Jr., Tiers for the Establishment Clause, 166 University of Pennsylvania Law Review 59-127 (2017).
• Law & Religion. Articles by William A. Galston, Kenneth Einar Himma, Andrew Koppelman, Samuel C. Rickless, Maimon Schwarzschild, William Voegeli, Larry Alexander, 54 San Diego Law Review 197-341 (2017).
• Gerard V. Bradley, Today's Challenges to Religious Liberty in Historical Perspective, 21 Texas Review of Law & Politics 341-376 (2017).
• Justin E. Butterfield & Stephanie N. Taub, The Jurisprudence of the Body: Conscience Rights in the Use of the Sword, Scalpel, and Syringe, 21 Texas Review of Law & Politics 409-421 (2017).
• James A. Davids, Religious Colleges' Employment Rights Under the "Ministerial Exception" and When Disciplining an Employee for Sexually Related Conduct, 21 Texas Review of Law & Politics 423-476 (2017).
• Kevin Pybas, Justice Stevens's Religion Clause Jurisprudence and His Sympathetic Interpreters: A Critique, 21 Texas Review of Law & Politics 519-563 (2017).

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.

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.

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.