Suit By "Clock Boy" Is Dismissed

In Mohamed v. Irving Independent School District, (ND TYX, March 13, 2018), a Texas federal district court dismissed a number of claims brought on behalf of the so-called "clock boy"-- a 14-year old African-American Muslim student who was suspended from school and arrested on "hoax bomb" charges when he brought an alarm clock he had constructed to school.  The complaint charged in part that the school district "has an 'ugly history of race struggles,' and the State of Texas and the IISD have a 'history of discrimination against Muslims in Texas curriculum and schools.'"  The court concluded that the complaint:

does not contain sufficient factual allegations from which the court can reasonably infer that A.M. was subject to unequal disciplinary treatment based on his religion or race....

Daily Caller reports on the decision.

Pakistani Court Says Citizens Must Declare Religion For Identity Documents

Christian Times reports on a decision last week from the Islamabad High Court in Pakistan.  The court ruled that all citizens must declare their religion when they apply for identity documents.  Human rights advocates say this will increase pressure on the Ahmadis who under Pakistani law are not allowed to refer to themselves as Muslims.  A spokesman for the Ministry of Religious Affairs and Interfaith Harmony, however, said the requirement will help religious minorities secure the 5% quota in government jobs to which they are entitled.

Massachusetts Lacks Standing To Challenge Expanded Contraceptive Mandate Exemptions

In Commonwealth of Massachusetts v. U.S. Department of Health & Human Services, (D MA, March 12, 2018), a Massachusetts federal district court held that the state of Massachusetts lacks standing to challenge recently adopted Interim Federal Rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. The court concluded that the state had "failed to set forth specific facts demonstrating that it is likely to incur an injury" from adoption of the rules. MassLive reports on the decision.

Montana's Anti-Polygamy Laws Upheld

In Collier v. Fox, (D MT, March 9, 2018), a Montana federal district court adopted a magistrate's recommendations and dismissed a challenge to Montana's civil and criminal anti-polygamy laws. When the state denied Nathan Collier a marriage license to marry a second wife, he nevertheless entered a relationship with her and they hold themselves out as being married. The magistrate's Feb. 22 opinion (full text) dismisses the challenge to the state's criminal anti-polygamy provisions because there is no genuine threat that the parties challenging the law will be prosecuted, saying:

The State Defendants have taken the position that Nathan’s and Christine’s declaration to be husband and wife, without the accompanying possession of a state-issued marriage license, is insufficient to violate the Montana bigamy statutes. Therefore, this case presents the unusual situation where the State of Montana has taken the position that the Colliers’ conduct is not criminal, while the Colliers insist that it is.

Plaintiffs also challenge the state's refusal to issue a marriage license for Collier's marriage to his second wife.  The court held that the state's anti-polygamy law is constitutional, relying on the U.S. Supreme Court's 1878 decision in Reynolds v. United States. Billings Gazette reports on the decision.

Church's Suit Challenging California Health Insurance Rules Dismissed As Not Ripe

In Skyline Wesleyan Church v. California Department of Managed Health Care, (SD CA, March 9, 2018), a California federal district court dismissed on ripeness and standing grounds a suit by a church challenging California insurance rules on the coverage of abortion services by health policies.  The church objected to providing its employees with policies that covered abortions.  Initially state regulators required all policies to contain such coverage, but subsequently said they would grant exemptions for policies offered exclusively to religious employers.  The court said in part:

At this point in time it cannot be said that the DMHC would deny a health care plan’s request to offer the exemption sought by Plaintiff because no such plan has been submitted. Thus, the existence of a controversy depends on a factual scenario that may or may not materialize, making this case unfit for review.

11th Circuit: Employer Offered Reasonable Accommodation

In Patterson v. Walgreen Co., (11th Cir., March 9, 2018), the U.S. 11th Circuit Court of Appeals, in a suit alleging religious discrimination and retaliation, held that Walgreens had offered reasonable accommodations for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. The employee, a training instructor, was fired in the aftermath of his refusal to conduct an emergency training session on a Saturday.  The court said in part:

To comply with Title VII, an employer is not required to offer a choice of several accommodations or to prove that the employee’s proposed accommodation would pose an undue hardship; instead, the employer must show only “that the employee was offered a reasonable accommodation, ‘regardless of whether that accommodation is one which the employee suggested.’” ...

Walgreens decided to terminate his employment only after he failed to conduct the emergency training session, insisted that Walgreens guarantee that he would never have to work on his Sabbath, and refused to consider other employment options within the company without such a guarantee.

[Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Micah Schwartzman, Nelson Tebbe & Richard Schragger, The Costs of Conscience, (Virginia Public Law and Legal Theory Research Paper No. 2018-14 (March 2018)).
• Donald Carroll, A Groundless Clash of Freedoms?: The Religious Freedom of the Religiously Affiliated University and the Freedom of Faculty to Organize Under the NLRA, (March 2018).
• John D. Inazu, The Purpose (and Limits) of the University, (Utah Law Review, 2018 Forthcoming).
• Joseph E. David, 'Others-in-Law': Legalism in the Economy of Religious Differences, (Law, Culture and the Humanities, Forthcoming).
• Timothy Lubin, Towards a South Asian Diplomatics: Cosmopolitan Norms and Regional Idioms in the Use of Documents, (Studies in Historical Documents from Nepal and India, edited by Simon Cubelic, Axel Michaels, and Astrid Zotter. Heidelberg University Publishing / Kathmandu: National Archives, Nepal, 2018, pp. 37–84).
• Avishalom Westreich, Accommodating Religious Law with a Civil Legal System: Lessons from the Jewish Law Experience in Financial Family Matters, (Journal of Law and Religion, Vol. 33, 2018).
• Benito Arruñada & Matthias Krapf, Religion and the European Union, (Pompeu Fabra University, Economics and Business Working paper Series, 1601 (2018).
• Marc D. Froese, Universal Economy: Reconsidering the Role of Ideas in the Multilateral Governance of Global Trade, (March 9, 2018).
• Rory K. Little, Hating Hate Speech: Why Current First Amendment Doctrine Does Not Condemn a Careful Ban, (Hastings Constitutional Law Quarterly, Vol. 45, No. 3, 2018).
• Oonagh B. Breen, Redefining the Measure of Success: A Historical and Comparative Look at Charity Regulation, (Forthcoming in Matthew Harding (ed.), The Research Handbook on Not-for-Profit Law (Edward Elgar, 2018).

From SmartCILP:

• Donohon Abdugafurova, Rahimjon Abdugafurov & Beverly Moran, Islamic Feminism and Invisible Work: The Case of the Disappearing Daughter-in-Law, [Abstract], 19 Georgetown Journal of Gender & Law 43-60 (2017).
• Marc-Tizoc Gonzalez, Criminalizing Charity: Can First Amendment Free Exercise of Religion, RFRA, and RLUIPA Protect People Who Share Food in Public?, 7 UC Irvine Law Review 291-345 (2017).

Recent Prisoner Free Exercise Cases

In Hardy v. Agee, 2018 U.S. App. LEXIS 5648 (6th Cir., March 5, 2018), the 6th Circuit reversed the district court's dismissal for failure to exhaust administrative remedies of a suit by a Muslim inmate claiming that while on room restriction he was prevented from attending religious services and classes.

In England v. Walsh, (9th Cir., March 9, 2018), the 9th Circuit upheld dismissal of claims regarding failure to list Nation of Islam in the Nevada Department of Corrections Religious Practice Manual, and furnishing an inmate a vegetarian diet to meet NOI dietary requirements.

In Ackbar v. Byers, 2018 U.S. Dist. LEXIS 36006 (D SC, March 5, 2018), a South Carolina federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 37278, Jan. 22, 2018) and dismissed a complaint by an inmate that his Nation of Gods and Earths material was confiscated.

In Duncan v. Lay, 2018 U.S. Dist. LEXIS 35213 (ED AR, March 5, 2018), an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 36288, Feb. 14, 2018) and allowed an inmate to move ahead with his complaint that he has been denied access to the chapel library.

In Broyles v. Presley, 2018 U.S. Dist. LEXIS 36190 (D KA, March 6, 2018), a Kansas federal district court dismissed a suit alleging lack of kosher food brought by an inmate who says he practices the Jewish faith, Yahweh Assembly in Yahshua.

In Goddard v. Alexakos, 2018 U.S. Dist. LEXIS 36322 (ED KY, March 6, 2018), a Kentucky federal district court dismissed an inmate's complaint that the federal medical center at which he was confined only offered a general Christian religious service and would not provide a separate service for "The Way" (a non-Protestant Christian religion).

In Carawan v. Mitchell, 2018 U.S. Dist. LEXIS 36897 (WD NC, March 6, 2018), a North Carolina federal district court dismissed a Muslim inmate's complaint that the prison had discontinued the Zakat fund through which inmates could fulfill their religious obligation to give charity.

In Trainauskas v. Fralicker, 2018 U.S. Dist. LEXIS 37408 (SD IL, March 7, 2018), an Illinois federal district court allowed an inmate to move ahead with his complaint regarding disciplinary sanction related to letters he wrote about an Odinist religion known as The Guardians of Othala Kindred.

In Walker v. Harris, 2018 U.S. Dist. LEXIS 37693 (MD GA, March 8, 2018), a Georgia federal district court adopted most of a magistrate's recommendation (2018 U.S. Dist. LEXIS 38118, Feb. 9, 2018) and allowed a Muslim inmate to proceed with an excessive force claim, but not a free exercise or RLUIPA claim, regarding action against him for tucking his pants legs in his socks.

In Dawson v. Wagatsuma, 2018 U.S. Dist. LEXIS 39037 (D HI, March 9, 2018), a Hawaii federal district court dismissed an inmate's claim that he was required to denounce his Native Hawaiian Religion in order to participate in the prison's Module Contract Program.

Michigan Supreme Court Refuses To Reverse Injunction Against Private School Aid

In Council of Organizations and Others for Education About Parochiaid v. State of Michigan,  (MI Sup. Ct., March 9, 2018), the Michigan Supreme Court in a brief order denied leave to appeal a preliminary injunction issued by the Court of Claims.  That injunction prohibited payment of $2.5 million the legislature had allocated to private schools to cover the cost of complying with state mandates. (See prior posting.)  Chief Justice Markham filed a dissenting opinion arguing that the decision of the Court of Claims should be reversed.

Massachusetts Supreme Court Rules On Renovation Grants To Church

Caplan v. Town of Acton, (MA Sup Jud Ct, March 9, 2018), is a challenge under the Massachusetts' constitution's"anti-aid" clause to two historic-resource grants for renovation purposes to an active church.  The Massachusetts Supreme Judicial Court, in a 5-1 opinion, concluded:

the constitutionality of such grants must be evaluated under our three-factor test: a judge must consider whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment. We also conclude that, in light of the history of the anti-aid amendment, a grant of public funds to an active church warrants careful scrutiny.... 

[W]e conclude that the plaintiffs are likely to succeed on the merits of their claim with respect to the stained glass grant. Although the record before us does not allow us to ascertain whether there is a motivating purpose behind this grant other than historic preservation, its effect is to substantially aid the church in its essential function and, given the explicit religious imagery of the stained glass, it fails to avoid the very risks that the framers of the anti-aid amendment hoped to avoid....

With respect to the Master Plan grant, we conclude that further discovery is needed before a determination should be made as to whether the plaintiffs are likely to succeed on the merits of their claim.  This is in part because, unlike the stained glass grant, the Master Plan grant is far broader in its scope, including not only plans for the renovation of worship space but also plans for the renovation of the Fletcher and Hosmer Houses, which are both private residences....

Justice Kafker, joined by Justice Gaziono filed a concurring opinion.  Justice Cypher filed a dissenting opinion. MassLive reports on the decision.

Rwandan Government Closes Over 700 Churches

RNS reports that on Tuesday, the government of Rwanda shut down 714 of the more than 1300 churches in the country's capital city of Kigali.  The Rwanda Governance Board says that the closings were the result of building safety, hygiene and noise violations.  Most of the churches affected were small Pentecostal congregations that have multiplied in recent years.  Hygiene problems are common because Kigali does not have a sewage system or treatment plant.  Critics however say that the closures are an attempt by President Paul Kagame to suppress criticism. A Rwandan activist based in Canada said: "The churches constituted the last open space. Kagame knows this. The localized community of churches offered a slight space for daring to imagine and talk about change."

Hospital Can Assert Ministerial Exception Defense To Suit By Chaplain

In Penn v. New York Methodist Hospital, (2d Cir., March 7, 2018), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision held that a hospital "only historically connected to the United Methodist Church but still providing religious services through its pastoral care department" may invoke the ministerial exception doctrine.  The court summarized its majority opinion:

Mr. Penn—a former duty chaplain at New York Methodist Hospital—brought a lawsuit alleging that New York Methodist Hospital and Peter Poulos discriminated against him on the basis of his race and religion, and retaliated against him after he filed charges with the U.S. Equal Employment Opportunity Commission and the New York City Commission on Human Rights. New York Methodist Hospital, because of its history and continuing purpose, through its Department of Pastoral Care, is a “religious group.” Mr. Penn’s role within the Department of Pastoral Care was to provide religious care to the hospital’s patients and religious care only. Therefore, the First Amendment’s Religion Clauses warrant the application of the ministerial exception doctrine and the dismissal of this lawsuit.

Judge Droney dissented, saying in part:

The presence of a non‐sectarian chaplaincy department cannot transform an otherwise secular hospital into a religious institution for purposes of the ministerial exception.  If it could, most hospitals would be exempt from anti‐discrimination laws, as most—even clearly secular hospitals—have chaplaincy departments.... Moreover, the interfaith nature of the Department means that it is not run according to the tenets of any particular religion, thereby reducing the likelihood that evaluating the reasons for the termination of an employee such as Penn would “plunge [a court] into a maelstrom of Church policy, administration, and governance.”

Courthouse News Service reports on the decision.

Appeals Court Says Mennonite Woman Must Remain In Jail Until She Will Answer Prosecution's Questions

A Colorado appeals court. after expedited consideration, has rejected religious liberty arguments raised by a Mennonite woman who refuses to testify on behalf of the prosecution in a capital case.  Greta Lindekranz was an investigator for defense attorneys. The prosecution wants her testimony to rebut arguments that convicted murderer Robert Ray received ineffective assistance of counsel.  Lindekranz, who opposes capital punishment on religious grounds, argues that answering questions on direct examination by the prosecution would make her a tool in the prosecution's efforts to execute Ray.  The trial court held that her refusal to answer questions put forward by the prosecution placed her in contempt, and it ordered her held in jail until she elects to answer the questions. (See prior posting.)  In People v. Ray and Concerning Lindekranz, (CO App., March 8, 2018), the appellate court refused to reverse the contempt citation.  It held that even if strict scrutiny applies, the state has a compelling interest in ascertaining the truth and rendering a just judgment in accordance with the law.  The court rejected Lindekranz's alternative of answering questions from the court, with the prosecution and defense then cross-examining her.

The court concluded:

Ms. Lindecrantz is in a tough spot — caught between the proverbial rock and a hard place. We take no pleasure in declining to extricate her. But the state of the law being what it is, decline we must.

Colorado Public Radio, reporting on the decision, says that an appeal will be filed with the Colorado Supreme Court.

UPDATE: AP reports (March 10) that Lindekranz will now testify because her refusal to do so is hurting Ray's appeal. According to her lawyer: "Based on this dramatic change in circumstance, she has concluded that her religious principles honoring human life now compel that she must testify."

Canadian Agency Violates Foster Parents' Rights By Insisting They Say Easter Bunny Is Real

Canadian Press reports that an Ontario Superior Court judge ruled this week that a Christian couple's religious beliefs were infringed in violation of Canada's Charter of Rights and Freedoms when the Children's Aid Society of Hamilton removed two foster children from their home.  The action closing their foster home came after a social worker insisted that the couple tell the two young girls that the Easter Bunny is real. Foster parents Frances and Derek Baars say that doing so would violate their religious beliefs.  The court wrote in part:

There is ample evidence to support the fact that the children were removed because the Baars refused to either tell or imply that the Easter Bunny was delivering chocolate to the Baars' home. I am more than satisfied that the society actions interfered substantially with the Baars' religious beliefs.

Suit Challenges City's Forcing of Homeless Into Faith-Based Shelters

In Amarillo, Texas, an advocate for the homeless has filed a federal lawsuit challenging the city's attempts to move homeless individuals from a tent city known as Christ Church Camp of New Beginnings to traditional homeless shelters.  The complaint (full text) in Donelson v. City of Amarillo, (ND TX, filed 2/28/ 2018), contends in part that the city has violated the Establishment Clause by forcing people into faith-based shelters.  Texas Observer reports on the lawsuit.

Christian Student Group Sues Over Decertification

The InterVarsity Christian Fellowship at Wayne State University has filed a federal lawsuit challenging the University's action removing its status as a recognized student organization.  The complaint (full text) in InterVarsity Christian Fellowship/ USA v. Board of Governors of Wayne State University,  (WD MI, filed 3/6/2018), alleges that the action was taken against it because of the organization's requirements that its leadership share its Christian faith and affirm the group's statement of faith.  The university contends that this violates its non-discrimination policy.  InterVarsity has operated on Wayne State's campus for 75 years.  the complaint claims that the University's action violates various federal and state constitutional and statutory provision.  Detroit News reports on the lawsuit.

UPDATE: According to a press release from Becket, two days after the suit was filed the University reinstated InterVarsity Christian Fellowship, at least temporarily.

6th Circuit: Funeral Home Violated Title VII By Firing Transgender Employee

In EEOC v. R.G & G.R. Harris Funeral Homes, Inc., (6th Cir., March 7, 2018), the U.S. 6th Circuit Court of Appeals reversed the dismissal of a Title VII religious discrimination suit against a Michigan funeral home that fired Aimee Stephens, a transgender employee (funeral director/embalmer) who was in the process of transitioning from male to female. In a 49-page opinion, the court held first that Stephens was illegally fired because of her failure to conform to sex stereotypes.  The funeral home owner decided to fire Stephens "because Stephens was 'no longer going to represent himself as a man' and 'wanted to dress as a woman'."

The court also held that:

discrimination on the basis of transgender and transitioning status violates Title VII.

Moving to defenses raised by the funeral home, including its defense under RFRA which the district court had relied upon, the court held:

the Funeral Home does not qualify for the ministerial exception to Title VII; the Funeral Home’s religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes; the EEOC has established that it has a compelling interest in ensuring the Funeral Home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive way to achieve that compelling interest.

Explaining its rejection of defendant's claim of a substantial burden under RFRA, the court said in part:

...simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA. We presume that the “line [Rost] draw[s]”—namely, that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” ... —constitutes “an honest conviction.”...  But we hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.

Slate reports on the decision. [Thanks to Steven H. Sholk and Tom Rutledge for the lead.] 

Suit Filed Over Assets of Michigan-Based Communal Sect

The Detroit News this morning reports on a lawsuit that has been filed in an Oakland County, Michigan trial court over millions of dollars of assets of the Israelite House of David (IHOD).  IHOD was a communal religious sect created in 1903 and based in Benton Harbor, Michigan.  Members of the sect were required to remain celibate, and apparently only three members of the sect (one of whom is very ill) remain.  The suit was filed by Charles Ferrel who lives in Hawaii and was excommunicated-- he says wrongfully-- five years ago.  He alleges that defendants (two of the remaining members) have taken $50 million in assets from IHOD.  The sect's assets are located in Michigan, Hawaii and Australia,  Australia was envisioned by the sect as the place where its members would relocate when the world collapsed as predicted in the Book of Revelation.  In the suit, plaintiff seeks reinstatement as a member and control of the assets.  Alternatively he asks that the assets be turned over to the state of Michigan for it to dispose of them according to law.

British Court Issues FGM Protection Order To Protect 1-Year Old

According to the Manchester Evening News this week, a Family Court judge in Manchester, England has entered an "FGM protection order" at the request of social workers.  The order prohibits a 1-year old girl's family from flying the child back to India, their country of origin, for purposes of female genital mutilation.  The child's three older sisters had previously been flown to India for the procedure.  FGM protection orders have been available from British judges for about three years. (Background on obtaining an FGM Order).

Justice Department Sues Over County Nursing Home's Procedure For Obtaining Flu Shot Exemption

The Justice Department announced yesterday that it has filed a religious discrimination suit against a Wisconsin county because of the religious accommodation policy of a county-owned nursing home.  The complaint (full text) in United States v. Ozaukee County, Wisconsin, (ED WI, filed 3/6/2018), challenges the nursing home's requirement that a religious exemption for staff from the requirement to obtain a flu shot is available only if the staff member furnishes a letter from his or her clergy leader.  Nursing assistant Barnell Williams sought a religious exemption, but was not affiliated with any church or organized religion.  She based her religious objection on her own interpretation of the Bible.  She agreed to receive a flu shot in order to preserve her job.  However, according to the complaint:

Williams suffered severe emotional distress from receiving the flu shot in violation of her religious beliefs, including withdrawing from work and her personal life, suffering from sleep problems, anxiety, and fear of “going to Hell” because she had disobeyed the Bible by receiving the shot. These deep emotional problems stemming from having to take the flu shot have plagued Williams to the present.