European Court Upholds Conviction For Inciting Hatred

In Smajić v. Bosnia and Herzegovina, (ECHR, Jan. 16, 2018), a 3-judge panel of the European Court of Human Rights rejected a claim by a a citizen of Bosnia and Herzegovina that his free expression rights were infringed when he was convicted of inciting national, racial and religious hatred, discord or intolerance.  Applicant had posted online action that should be taken by Bosniac citizens of the Brčko District in the event of war and secession of  Republika Srpska (one of the two constituent entities of Bosnia and Herzegovina).  According to the court:

The applicant had used expressions which were highly insulting to members of an ethnic group, such as “this stinking Christmas”, “get rid of the danger behind our backs”, “the city centre should then be slowly cleansed” and “Serbs who came from different shitholes live there”.

Rejecting applicant's argument that his conviction violated Art. 10 of the European Convention on Human Rights, the court said in part:

31. The Court notes that the applicant’s conviction amounted to an “interference” with his right to freedom of expression. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10, and is “necessary in a democratic society” for achieving such an aim or aims.

32. The interference in the present case was prescribed by law; namely, it was based on Article 160 § 1 of the 2003 BD Criminal Code... Furthermore, the Court is satisfied that it pursued at least one of the legitimate aims referred to in Article 10 § 2 – namely the protection of the reputation and rights of others.

33. The Court reiterates that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, but these must be construed strictly, and the need for any restrictions must be established convincingly....

Recent Articles of Interest

From SSRN:

• Joshua Cutler, The Religious Roots of the Progressive Income Tax in America,(January 22, 2018).
• Robert Kahn, Five Thoughts About the Repeal of Denmark's Blasphemy Ban, (January 29, 2018).
• Julio C. Colón, Settlement of Islamic Finance Disputes in the United States of America, (Dispute Resolution in Islamic Finance (Forthcoming)).
• Avihay Dorfman, Toleration in Law, (January 30, 2018).
• Fiona de Londras & Mima Markicevic, Reforming Abortion Law in Ireland: An Analysis of Submissions to the Citizens Assembly, (October 10, 2017).
• Steven G. Calabresi, Hannah Begley, Katherine L. Dore & Sarah E. Agudo, Individual Rights Under State Constitution in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States, (Northwestern Law & Econ Research Paper No. 18-02 (2018)).
• J.B. Heaton, What Injures a Corporation? Toward Better Understanding Corporate Personality, (January 31, 2018).
• Gwendolyn Leachman, Media, Marriage, and the Construction of the LGBT Legal Agenda, Univ. of Wisconsin Legal Studies Research Paper No. 1437 (2018).
• Ryan T. Anderson, A Brave New World of Transgender Policy, (Harvard Journal of Law and Public Policy, Vol. 41, No. 1, 2018).
• Lloyd Hitoshi Mayer, Fiduciary Principles in Charities and Other Nonprofits, (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff, eds., The Oxford Handbook of Fiduciary Law (Oxford University Press, 2018 Forthcoming)).

Recent Prisoner Free Exercise Cases

In Fox v. Lee, 2018 U.S. Dist. LEXIS 19402 (ND NY, Feb. 5, 2018), a New York federal magistrate judge recommended denying an inmate's motion for summary judgment in his suit claiming to be an adherent of the Anuaki religion and needing to wear his hair in a Mohawk cut for religious reasons.

In Blackbear v. Butler County Jail, 2018 U.S. Dist. LEXIS 19935 (D KA, Feb. 7, 2018), a Kansas federal district court rejected an inmate's complaint that for 3 weeks he was denied a special diet he needed for religious reasons.

In Sajous v. Withers, 2018 U.S. Dist. LEXIS 20191 (SD FL, Feb. 6, 2018), a Florida federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 20820, Jan. 16, 2018) and dismissed an inmate's complaint that a Haitian Flag Day ceremonial meal was canceled and that he is unable to practice his Vodoo religion.

In Williams v. Paramo, 2018 U.S. Dist. LEXIS 21191 (SD CA, Feb. 7, 2018), a California federal district court allowed an inmate to move ahead with his complaint that he was not allowed to participate in Ramadan in 2017.

In Icangelo v. County of Suffolk, 2018 U.S. Dist. LEXIS 21903 (ED NY, Feb. 8, 2018), a New York federal magistrate judge allowed an inmate to move ahead with this complaint that for 6 weeks he was not allowed to attend Jummah religious services. UPDATE: The magistrate's opinion was adopted by the court at 2018 U.S. Dist. LEXIS 32754 (Feb. 28, 2018).

Small Church Challenges Zoning Changes

Yesterday a small church in Laurel, Maryland filed a federal lawsuit challenging a zoning code change that prevents it from using property it purchased for a non-profit coffee shop and house of worship.  The complaint (full text) in Redemption Community Church v. City of Laurel, Maryland, (D MD, filed 2/9/2018), alleges that the zoning changes violate its right under RLUIPA and the 1st Amendment.  It alleges in part:

4. ... the City changed its zoning code to ban non-profit businesses and to require small churches (those located on less than one acre) to go through an onerous, costly, and uncertain special exception process before locating in the C-V Zone.

5. Churches that can afford more than an acre, and numerous secular assemblies or institutions can locate in the C-V Zone as of right....

7. The City has discriminated against Redemption Community Church, treated it less favorably than similarly-situated secular organizations, substantially burdened the Church’s free exercise of religion, and infringed on the Church’s right to free speech, peaceable assembly, and equal protection in violation of the Church’s federal and constitutional rights.

ADF issued a press release announcing the filing of the lawsuit.

Notre Dame Announces Another Change In Contraceptive Coverage

Notre Dame University on Wednesday announced another change in its policy regarding coverage for contraceptives by its employee health care plan.  Initially Notre Dame sued challenging the Obama administration's rule which required coverage, but allowed the coverage to be provided by the insurance company or third party administrator directly rather than by the University.  When the Trump administration broadened the exemption for religious non-profits so that Notre Dame could completely opt out of contraceptive coverage, the University chose to continue with the pre-existing coverage arrangement. This led to criticism from alumni and others. (See prior posting.)  Now in a letter to faculty and staff (full text), the University has announced a different approach-- one which makes a distinction between Catholic teaching regarding contraception and Church teaching regarding abortion (presumably including contraceptive drugs that prevent implantation of a fertilized ovum).  The letter from Notre Dame's president describes the policy as follows in part:

... [A]llowing the government-funded provision of drugs and services to continue through a third party administrator would provide access to contraceptives without University funding or immediate involvement. The government-funded program, however, includes the provision of abortion-inducing drugs, which are far more gravely objectionable in Catholic teaching. Stopping any access to contraceptives through our health care plan would allow the University to be free of involvement with drugs that are morally objectionable in Catholic teaching, but it would burden those who have made conscientious decisions about the use of such drugs and rely on the University for health care benefits.

I have reached the conclusion that it is best that the University stop the government-funded provision of the range of drugs and services through our third party administrator. Instead, the University will provide coverage in the University’s own insurance plans for simple contraceptives (i.e., drugs designed to prevent conception). The University will also provide in its plans funding for natural family planning options—options that do not use artificial contraceptives but employ natural methods for preventing conception. The University’s insurance plans (as opposed to the government-funded program) have never covered, and will not cover, abortion-inducing drugs.

In response to the new policy, Bishop Rhoades, Bishop of the Diocese of Fort Wayne-South Bend where Notre Dame is located, issued a statement yesterday (full text) welcoming parts of the new policy but strongly criticizing the University's decision to directly fund contraception coverage. [Thanks to Marty Lederman via Religionlaw for the lead.] 

Hopi's Religious Concerns Give Them Standing To Challenge Snowbowl Water Use

In Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, (AZ App., Feb. 8, 2018), an Arizona state appeals court has given the Hopi tribe another chance to continue their long-running opposition to the use of recycled waste water to make artificial snow at Arizona's Snowbowl ski resort. (See prior posting).  Reversing the trial court's standing ruling, the appellate court said in part:

At issue is whether the Tribe sufficiently alleged standing to maintain a common law public nuisance claim. For a private party to bring a claim of public nuisance, it must allege both an interference with a right common to the public and a special injury different in kind from that of the public. The parties do not dispute that the Tribe sufficiently alleged that the use of reclaimed wastewater interferes with the public’s right to use and enjoy the Peaks. Because we find the Tribe sufficiently alleged the use of reclaimed wastewater causes its members a special injury, different in kind than that suffered by the general public, by interfering with places of special cultural and religious significance to the Tribe, we reverse the trial court’s dismissal....

Former Magistrate Receives Damages In Settlement Over Refusal To Perform Same-Sex Marriages

According to a press release this week from Becket, the North Carolina court system last November agreed to a settlement with a former North Carolina magistrate who was forced to resign in 2014 because of her objections to performing same-sex marriage ceremonies.  Under the settlement of a complaint filed with the EEOC, magistrate Sandra Myrick will receive $210,000 in damages and $115,000 in attorneys fees. (Full text of settlement agreement).  The settlement came 8 months after the decision by an Administrative Law Judge in Myrick v. Warren, (EEOC, March 8, 2017) holding that the EEOC has jurisdiction over Myrick's religious discrimination complaint under the Government Employees Rights Act of 1991.  The ALJ also concluded that Myrick had demonstrated a prima facie case of religious discrimination and that she had not been offered an accommodation.

Trump Speaks To National Prayer Breakfast

Yesterday President Donald Trump spoke at the 66th Annual National Prayer Breakfast in Washington, D.C. (full text of remarks). The President said in part:

Each year, this event reminds us that faith is central to American life and to liberty.  Our founders invoked our Creator four times in the Declaration of Independence.  Our currency declares, “In God We Trust.”  (Applause.)  And we place our hands on our hearts as we recite the Pledge of Allegiance and proclaim we are “One Nation Under God.”  (Applause.)

Our rights are not given to us by man; our rights come from our Creator.  (Applause.)  No matter what, no Earthly force can take those rights away.  (Applause.)  That is why the words “Praise be to God” are etched atop the Washington Monument, and those same words are etched into the hearts of our people.

DOJ Imposes More Oversight On US Attorneys In Religious Liberty Cases

In a press release last week, the Department of Justice announced an update to the United States Attorneys' Manual (full text) which adds a section titled "Associate Attorney General’s Approval and Notice Requirements for Issues Implicating Religious Liberty." In order to insure compliance with a memo on protection of religious liberty issued last October (see prior posting), DOJ's new procedures instruct U.S. Attorneys to appoint a contact person to carry out the following instructions:

Immediately inform the Office of the Associate Attorney General upon receiving service of a suit filed against the United States raising any significant question concerning religious liberty;

Coordinate decisions about merits arguments and significant litigation strategy questions in religious liberty cases with the Office of the Associate Attorney General; and

Obtain the approval of the Office of the Associate Attorney General with respect to any affirmative civil suit that impinges on rights under the Free Exercise Clause, Establishment Clause, or Religious Freedom Restoration Act.

Yesterday the Center for Inquiry issued a press release criticizing the new oversight policy.

New Hearing Ordered On Moving Bishop Fulton J. Sheen's Remains

In a 3-2 decision in Matter of Cunningham v Trustees of St. Patrick's Cathedral, (NY App., Feb. 6, 2018), New York state's Appellate Division sent back to the trial court for further proceedings the dispute over whether the body of Archbishop Fulton J. Sheen, who died in 1979, should be moved from New York City to Illinois.  Sheen was buried in St. Patrick's Cathedral. However Sheen's niece has now petitioned the court to have Sheen's remains moved to Peoria, Illinois where Sheen's family resides and where a shrine to him is being built in anticipation of Sheen's Beatification by The Vatican. (See prior posting.)  The trial court concluded (full text of opinion) that no factual disputes existed, and granted the request to allow removal of Sheen's remains. However, on appeal the majority held that the trial court must hold a hearing to determine Sheen's wishes as to his place of burial, in light of conflicting evidence on the issue. New York Times reports on the decision.

Senate's Bipartisan Budget Agreement Will Assure FEMA Assistance For Houses of Worship

The Bipartisan Budget Agreement (full text) which will be voted on today by the Senate (CNN report) includes provisions assuring that houses of worship will be able to receive disaster assistance from FEMA. The Stafford Act, Sec. 42 USC  Sec. 5172 allows federal assistance for repair or replacement of non-profit facilities damaged or destroyed by major disasters.  However, until a recent policy change by FEMA, houses of worship were excluded. (See prior posting.)  The bipartisan budget bill (Sec. 20604 at pg. 48) adds the following:

SEC. 20604. (a) DEFINITION OF PRIVATE NON PROFIT FACILITY.—

Section 102(11)(B) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(11)(B)) is amended to read as follows:

‘‘(A) IN GENERAL.—The term ‘private nonprofit facility’ means private nonprofit educational (without regard to the religious character of the facility), utility, irrigation, emergency, medical, rehabilitational, and temporary or permanent custodial care facilities (including those for the aged and disabled) and facilities on Indian reservations, as defined by the President.

‘‘(B) ADDITIONAL FACILITIES.—In addition to the facilities described in subparagraph (A), the term ‘private nonprofit facility’ includes any private nonprofit facility that provides essential social services to the general public (including museums, zoos, performing arts facilities, community arts centers, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, shelter workshops, broadcasting facilities, houses of worship, and facilities that provide health and safety services of a governmental nature), as defined by the President. No house of worship may be excluded from this definition because leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice.’’.

(b) REPAIR, RESTORATION, AND REPLACEMENT OF DAMAGED FACILITIES.—Section 406(a)(3) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5172(a)(3)) is amended by adding at the end the following:

‘‘(C) RELIGIOUS FACILITIES.—A church, synagogue, mosque, temple, or other house of worship, educational facility, or any other private nonprofit facility, shall be eligible for contributions under paragraph (1)(B), without regard to the religious character of the facility or the primary religious use of the facility. No house of worship, educational facility, or any other private nonprofit facility may be excluded from receiving contributions under paragraph (1)(B) because leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice.’’. 

Pakistani Court Sentences 31 In Lynching of Student Falsely Accused of Blashpemy

Agence France-Presse today reports that a court in Pakistan has sentenced one person to death, five others to life in prison and 25 to three years in prison in the lynching of a student who was falsely accused of blasphemy.  26 others were acquitted. According to the report:

Mashal Khan, 23, was stripped, beaten and shot by a gang made up mostly of students last April before being thrown from the second floor of his dormitory at Abdul Wali Khan University in the northwestern city of Mardan....

Around two thousand people gathered at the main entrance of Mardan city, Khan's hometown, showering the acquitted students with flowers, chanting slogans against the provincial government and demanding the release of those convicted.

Louisiana School District Sued Over Prayers and Proselytizing

Four parents yesterday filed a federal lawsuit against the Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations.  The complaint (full text) in Does 1-4 v. Bossier Parish School Board, (WD LA, Feb. 7, 2018) alleges in part:

3. School officials throughout the Bossier Parish School System regularly deliver or promote the delivery of Christian prayers at school-sponsored events.  Prayers begin and often end graduation ceremonies, sporting events, sports teams’ practices and banquets, pep rallies, and student-council meetings. Many of these school-sponsored events are also held in churches, including within the sanctuary or other rooms bearing religious iconography, thus creating an atmosphere closer to Sunday school than to public school.

 4. What is more, some Bossier Parish teachers proselytize during class, pray aloud for students, require young students to memorize sectarian prayers, and tell students of all religious backgrounds that to be a good person one be Christian.  Bossier Parish teachers and administrators have also placed religious displays in their classrooms and offices, advertised events sponsored by local churches, and incorporated religious teachings, beliefs, or doctrine, like Creationism, into the curriculum. Further, some Bossier Parish teachers, staff, and administrators have endorsed and conferred special favors on sectarian religious clubs and have developed practices that expose the private beliefs of students who do not wish to participate in these organizations, subjecting these children to coercive pressure to join, and ostracization by their classmates if they do not. 

Americans United issued a press release announcing the filing of the lawsuit.

EEOC Wins Settlement of Religious Accommodation Lawsuit

In a January 30 press release, the EEOC announced that the logistics company  XPO Last Mile, Inc. has settled a religious discrimination suit filed by the agency.  The company will pay $94,541 in monetary relief to a job applicant whose job offer was rescinded when he informed the company that he needed to start work one day later than scheduled because of his observance of the Jewish holiday of Rosh Hashanah.  The company also entered a 3-year consent decree preventing unlawful denial of religious accommodation to employees.

Congress Holds Hearing On Preventing Mass Atrocities

Yesterday, Congress' Tom Lantos Human Rights Commission held a hearing on prevention of mass atrocities around the world. Transcripts of prepared statements by a number of witnesses and a video of the entire hearing are available on the Commission's website.  In his opening statement, Commission co-chairman James McGovern said in part:

We are persuaded that atrocities are not the product of “ancient” ethnic or religious hatreds but rather of conscious, strategic decisions by ruling elites and non-state actors to achieve specific ends. Those actors need a reason to commit atrocities, and the means and opportunity to do so. The issue becomes how to change their strategic calculus.

We think impunity is one of the elements in that strategic calculus. If the perpetrators enjoy impunity, this may be seen as a “green light” to expand a genocidal or mass atrocity campaign.

California Baker May Refuse To Create Cake For Same-Sex Wedding

A California state trial court has held that a bakery owner has the right to refuse to create a wedding cake for a same-sex couple when the owner has religious objections to same-sex marriage. The court pointed out:

The Unruh Act prohibits discrimination on the basis of religion, as well as sexual orientation.

The bakery had arranged to refer orders from same-sex couples to a competing bakery that has no objections. In Department of Fair Employment and Housing v. Miller, (CA Super., Feb. 5, 2018), the court said in part:

The right of freedom of thought guaranteed by the First Amendment includes the right to speak, and the right to refrain from speaking. Sometimes the most profound protest is silence....

No artist, having placed their work for public sale, may refuse to sell for an unlawful discriminatory purpose. No baker may place their wares in public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.

The difference here is that the cake in question is not yet baked. The State is not petitioning the court to order defendants to sell cake. The State asks this court to compel Miller to use her talents to design and create cake she has not yet conceived with the knowledge that her work will be displayed in celebration of marital union her religion forbids. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.

The Bakersfield Californian reports on the decision.

Israeli Rabbinical Judges Immune In State Court At Suggestion of State Department

In Ben-Hiam v. Edri, (NJ App., Feb. 5, 2018), a New Jersey appellate court held that a State Department "suggestion of immunity" in a suit against foreign officials is binding on New Jersey courts when the State Department has found that the foreign officials were acting within the scope of their authority for a foreign sovereign.  At issue is a suit brought in New Jersey against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel.  The suit grew out of a divorce and child custody dispute filed in Israeli courts by a couple who lived in New Jersey, but were Israeli citizens who were married in Israel and had traveled to Israel when the divorce action was filed.  While the Israeli litigation was pending, the husband (plaintiff in this case) returned to the United States.  Competing custody rulings for the couple's daughter were issued in the U.S. and Israel. The Israeli rabbinical court awarded custody of the daughter to the mother, but was unable to grant a divorce because the husband refused to grant the wife a get (Jewish divorce document).

What happened next is explained by the New Jersey court:

Israeli law gives rabbinical courts the authority to issue certain sanctions to pressure a nonconsenting spouse to give consent to a get. Accordingly, to compel plaintiff to consent to the get, the rabbinical court issued a series of escalating sanctions against plaintiff. Ultimately, the rabbinical court issued an order finding that under Jewish law, plaintiff's refusal was criminal and that Jewish persons must avoid dealing with plaintiff. That rabbinical court order was sent to plaintiff's rabbi in New Jersey, and was published on several websites.

In April 2015, plaintiff filed a civil complaint ... in New Jersey. Specifically, plaintiff contended that defendants aided and abetted in the kidnapping of his daughter, defamed him, and intentionally inflicted emotional distress on him.

European Court Upholds Company's Religiously Objectionable Ads

In Case of Sekmadienis Ltd. v. Lithuania, (ECHR, Jan. 30, 2018), the European Court of Human Rights in a Chamber Judgment held that Lithuania's State Consumer Rights Protection Authority violated a clothing company's freedom of expression when it imposed a fine because of a series of the company's ads that were seen as offending Christians. The Economist, reporting on the decision, described the ads:

The case refers to a Kalinkin campaign in 2012 which featured a bare-chested young man and a woman, both with halos: the man was sporting jeans and tattoos, and the female figure wore a white dress with a string of beads. The captions consisted of lines such as: “Jesus, what trousers!”, “Dear Mary, what a dress!” and “Jesus, Mary, what are you wearing?”

The European Court concluded that Lithuanian courts "failed to strike a fair balance between, on the one hand, the protection of public morals and the rights of religious people, and, on the other hand, the applicant company’s right to freedom of expression."  The Court issued a press release summarizing the decision. Chamber judgments may be appealed to the Grand Chamber.

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.

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.

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.

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

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