Recent Prisoner Free Exercise Cases

In Furr v. Kelley, 2018 U.S. Dist. LEXIS 43468 (ED AR, March 16, 2018), an Arkansas federal magistrate judge recommended dismissing claims by a Native American inmate that he was denied various ceremonial objects and a religious adviser.

In Burley v. Abdellatif, 2018 U.S. Dist. LEXIS 44187 (ED MI, March 19, 2018), a Michigan federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 44390, Jan. 26, 2018) and dismissed a number of claims but allowed an inmate to move ahead with his claim that the prison physician violated his 1st Amendment protection against retaliation by refusing to treat him because he is Jewish.

In Maye v. Klee, 2018 U.S. Dist. LEXIS 44188 (ED MI, March 19, 2018), a Michigan federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 44618, Jan.24, 2018) and granted a Nation of Islam inmate summary judgment on his complaint that the prison chaplain did not permit him to participate in Eid al-Fitr celebrations. He was allowed to move ahead with a free exercise claim against one other defendant.  Supplemental briefing was ordered on the issue of damages.

In Le Bourgeois v. Wolf, 2018 U.S. Dist. LEXIS 44990 (ED WI, March 19, 2018), a Wisconsin federal district court dismissed an inmate's complaint that his religious book was seized and destroyed. He was allowed to move ahead with various other claims.

In Goff v. Todd, 2018 U.S. Dist. LEXIS 46294 (ED LA, March 21, 2018), a Louisiana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 47329, Feb. 27, 2018) and in a suit by a Muslim inmate ordered that defendants file further pleadings explaining the prison policy that prevents plaintiff from wearing kufi caps.

In Adams-Bey v. Rogers, 2018 U.S. Dist. LEXIS 46307 (WD NC, March 21, 2018), a North Carolina federal district court dismissed (unless an amended complaint is filed) a suit by an inmate claiming that he was discriminated against and insulted based on his Moorish-American religion, that his religious material was confiscated and his religion was classified as a security threat group.

In Booker v. Engelke, 2018 U.S. Dist. LEXIS 46918 (WD VA, March 22, 2018), a Virginia federal district court allowed a Nation of Islam inmate to proceed with his complaint that his free exercise rights are infringed by limits on his access to the common fare diet, the content of that diet, the requirement that he eat his meals very quickly, and his inability to observe Eid-ul-Adha.

In Cary v. Mox, 2018 U.S. Dist. LEXIS 47078 (ED MI, March 22, 2018), a Michigan federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 48417, Feb. 8, 2018) and denied a preliminary injunction sought by an inmate who is a member of the Native American Traditional Way. Plaintiff asked for a ban on prison authorities physically touching medicine bags and herbs as part of a rewrite of procedures for searching these items.

In Maciejka v. Williams, 2018 U.S. Dist. LEXIS 47474 (SD FL, March 21, 2018), a Florida federal magistrate judge recommended that a former inmate who is Catholic be allowed to proceed on a claim for nominal damages.  Plaintiff alleged that while in prison he was unable to attend group worship, celebrate certain religious holidays, obtain spiritual advice, keep religious materials and publications, or obtain religious property such as a Rosary and Scapular.

In Rivera v. Davey, 2018 U.S. Dist. LEXIS 47691 (ED CA, March 21, 2018), a California federal magistrate judge recommended dismissing a Jewish inmate's claim that he was denied the facility chapel to practice obligatory prayers and holy day events.

New White House Memorandum On Military Service By Transgender Persons

Yesterday the White House released a Memorandum from the President on Military Service By Transgender Individuals (full text). Implementing February 2018 recommendations and a related report (full text) from the Secretary of Defense, the memo replaces an earlier Presidential Memorandum and authorizes the military services to implement the Defense Department's recommendations.  Those recommendations preclude most new enlistments by transgender individuals. They allow enlistment by transgender persons only if they have not been diagnosed with gender dysphoria, or if previously diagnosed with gender dysphoria they have been stable for 36 months in their biological sex.  Those who require or have undergone gender transition are disqualified.  The Hill reports on the new Memorandum.

All of this may l\have little immediate effect.  Vanity Fair reports:

It is possible that the ban will never actually be put in place: while the Trump administration is framing the order as “a new policy developed through extensive study by senior uniformed and civilian leaders,” it is substantively the same as the previous Trump policy, which is currently facing multiple lawsuits on constitutional grounds. Four federal courts have issued injunctions in cases filed by civil rights groups, and may ultimately end up before the Supreme Court. The Pentagon said Friday that it will continue to abide by Obama-era policies welcoming transgender troops while those legal battles continue.

Alabama Legislature Approves Ballot Issue On Ten Commandments

The Alabama legislature yesterday approved S 181 (full text), submitting a proposed state constitutional amendment to the voters. The operative provisions of the proposed amendment read:

Every person shall be at liberty to worship God according to the dictates of his or her own conscience. No person shall be compelled to attend, or, against his or her consent, to contribute to the erection or support of any place of religious worship, or to pay tithes, taxes, or other rates for the support of any minister of the gospel. Property belonging to the state may be used to display the Ten Commandments, and the right of a public school and public body to display the Ten Commandments on property owned or administrated by a public school or public body in this state is not restrained or abridged. The civil and political rights, privileges, and capacities of no person shall be diminished or enlarged on account of his or her religious belief. No public funds may be expended in defense of the constitutionality of this amendment.

The Ten Commandments shall be displayed in a manner that complies with constitutional requirements, including, but not limited to, being intermingled with historical or educational items, or both, in a larger display within or on property owned or administrated by a public school or public body.

The inclusion of the ban on using public funds to defend the constitutionality of the amendment is apparently a response to criticism from opponents that the amendment will merely invite costly lawsuits. (See AP report on the passage of the bill.)  Also, apparently the amendment is not intended to repeal the somewhat overlapping provisions of the existing Sections 3 , 3.01 (Amendment 622) and 263 of the state constitution. [Thanks to Tom Rutledge for the lead.]

4 Nations Sign Statement On Combating Online Hate Speech

On Tuesday, the Justice Ministers of Greece, Malta, Italy and Israel at the 6th Global Forum for Combating Antisemitism, held in Jerusalem, signed a Joint Statement on Countering Online Hate Speech and Incitement to Violence and Terrorism (full text [scroll down in article]). Among other things, the statement urged Internet companies to adopt a clear and transparent industry standard for identifying hate speech.  It went on to encourage Internet companies to take action against hate speech publications and to remove them from their online platforms.

Rabbi Defends Against Zoning Charges Citing Religious Obligation of Hospitality

Savannah Morning News yesterday reported on litigation pending in a Georgia state trial court charging violation of local zoning laws.  Last December, City of Savannah attorneys filed suit against Rabbi Arnold Belzer and his wife for renting out their home as a short-term vacation rental.  Apparently the rental was advertised through Air BNB. Rabbi Belzer argues that fines or an injunction would impose a substantial burden on their free exercise rights.  Their pleadings assert:

As devout people of faith, Rabbi and Mrs. (Arlene) Belzer have a sincerely held religious belief in the Jewish practice of hospitality.  They consider the practice of hospitality to be a religious obligation found in Jewish scripture and tradition.

7th Circuit: School's Christmas Pageant Does Not Violate Establishment Clause

In Freedom From Religion Foundation v. Concord Community Schools, (7th Cir., March 21, 2018), the U.S. 7th Circuit Court of Appeals held that a revised version of an annual Christmas Spectacular put on by an Elkhart, Indiana high school does not violate the Establishment Clause.  The court describes the revised pageant's challenged second half:

the show spends about four and a half minutes each explaining and performing a song to represent Hanukkah and another for Kwanzaa. Images are projected onto large screens to accompany both songs. For the remaining 20 minutes, students perform numerous Christmas songs that are more religious in nature (e.g., “Jesus, Jesus, Rest Your Head,” “O Holy Night”). During one of the songs, a nativity scene appears on stage for two minutes. The manger uses mannequins, not student actors. There are no New Testament readings.

The court explained its conclusion as follows, in part:

It is worth emphasizing that no one factor alone—the secular first half, the nativity’s lack of prominence, the inclusion of other holidays—leads us to conclude that the 2015 Spectacular passes muster under the endorsement test. Overall, the 2015 performance in its current form would not cause a reasonable observer to believe that Concord is signing off on a particular religious message....

Although the matter is not open‐and‐shut, we see no reason to reverse the district court’s conclusion on summary judgment that the 2015 show did not pressure individuals to support any religious beliefs.

Education Week reports on the decision.

Abortion Protester Cleared of Disorderly Conduct Charge

A trial court judge in Huntsville, Alabama last week found 66-year old Alison Harris not guilty of disorderly conduct. (Docket sheet).  According to a press release from the Thomas More Society:

Harris, a frequent sidewalk counselor at the Alabama Women’s Center for Reproductive Alternatives, was arrested on May 26, 2017, on the public walkway in front of the abortion clinic as she prayed and tried to persuade parents to choose life for their preborn children. The arresting officer had obtained a warrant at the request of a clinic employee for Harris’ use of a megaphone fourteen days earlier. The megaphone had been repeatedly tested by city police to ensure that it was below the decibel limit allowed by the Huntsville City ordinance.

Megaphones are used by sidewalk counselors at the Huntsville abortion clinic, where, alongside a four-lane highway, abortion escorts use cow bells, car horns, and loud-speakers to drown out the pro-life messages.

Omnibus Spending Bill Does Not Contain Johnson Amendment Repeal

Several non-profit organizations have noted that the 2,232-page version of the omnibus Consolidated Appropriations Act, 2018 (full text) made public yesterday does not contain a repeal of the Johnson Amendment. A press release from the National Council of Nonprofits says in part:

Public trust is essential for charitable nonprofits, houses of worship, and foundations to do their work – and keeping the Johnson Amendment in place allows the public to continue trusting that our organizations can focus on our missions without being torn apart by divisive partisan politics.

A Baptist Joint Committee press release expresses similar sentiments, saying in part:

Those who depend on houses of worship and community nonprofits can breathe a sigh of relief, as concerted efforts to weaken the longstanding law that keeps the 501(c)(3) sector free from partisan campaigning were rebuked yet again. 

Some hoped they could slip a bad policy change into must-pass legislation, but advocates for keeping nonprofits nonpartisan spoke up and prevailed.

Navy Again Rejects Application To Become Secular Humanist Chaplain

Washington Examiner yesterday reported that for a second time the U.S. Navy has rejected the application of Jason Heap to become the Navy's first Secular Humanist chaplain. His application was first rejected in 2014 (see prior related posting), but more recently the Navy chaplain advisory board recommended approval. However 45 House members and 22 Senators wrote the Navy opposing approval.  Senator Richard Wicker, chairman of the Senate Armed Services Committee, applauded the Navy's rejection of Heap's application, saying:

The appointment of an atheist to an undeniably religious position is fundamentally incompatible with atheism’s secularism. This decision preserves the distinct religious role that our chaplains carry out.

Scottish Court Convicts For Anti-Semitic YouTube Video

The Jewish Chronicle reports that a Sheriff's Court in Airdrie, Scotland yesterday found 30-year old Mark Meechan guilty of a hate crime for a YouTube posting that went viral. The video featured a dog owned by Meechan's girlfriend.  Meechan had trained the dog to give a Nazi salute when Meechan said "sieg heil" or "gas the Jews."  Meechan, who has apologized, says the video was his attempt to annoy his girl friend:

My girlfriend is always ranting and raving about how cute and adorable her wee dog is, so I thought I would turn him into the least cute thing I could think of, which is a Nazi.

The Sheriff's Court judge however ruled:

The accused knew that the material was offensive and knew why it was offensive. He would have known it was grossly offensive to many Jewish people.

Sentencing in the case is scheduled for April 23.

Recent Prisoner Free Exercise Cases

In Quiero v. Muniz, 2018 U.S. Dist. LEXIS 41981 (MD PA, March 13, 2018), a Pennsylvania federal magistrate judge recommended dismissing a Christian inmate's complaint that while in restricted housing unit for ten days, he was denied access to Bible study and church services and could not meet one-on-one with chapel staff.

In Shields v. Kahn, 2018 U.S. Dist. LEXIS 42194 (SD CA, March 14, 2018), a California federal district court allowed a Muslim inmate to move ahead on his complaint that he was denied participation in Ramadan meals.  He seeks to have the Muslim chaplain rather than other inmates control Islamic services.

In Gonzalez v. Morris, 2018 U.S. Dist. LEXIS 42534 (ND NY, March 15, 2018), a New York federal district court allowed an inmate who is a practitioner of Santeria to move ahead with his complaint that his equal protection rights were infringed when he was denied matches or a lighter to burn offerings. Various other claims were dismissed.

In McCoy v. Aramark Correctional Services, 2018 U.S. Dist. LEXIS 43301 (D KA, March 16, 2018), a Kansas federal district court allowed an Orthodox Jewish inmate to move ahead with claims that the meals served to him as kosher were not prepared and served in conformity with Jewish dietary laws.

In Doyle v. United States, 2018 U.S. Dist. LEXIS 43388 (ED KY, March 16, 2018), a Kentucky federal district court allowed a Muslim inmate to move ahead with his complaint that inmates can pray only in groups of two or three.  Various other claims were dismissed.

Transcript Of Supreme Court Arguments In California FACT Act Case Is Now Available

The full transcript of today' oral arguments (see prior posting) in National Institute of Family and Life Advocates v. Becerra is now available. Reporting on the arguments, Politico said in part:

A surprisingly broad array of justices expressed serious concerns that the Reproductive FACT Act intrudes on First Amendment rights, by requiring such centers to include in their ads a state-provided notice in as many as 13 languages offering contact information about abortion services and other options.

Mississippi Governor Signs Ban on Abortions After 15 Weeks; Court Challenge Filed

Mississippi Governor Phil Bryant yesterday signed into law HB 1510, the Gestational Age Act (full text) (bill status history). It prohibits abortions after 15 weeks of gestation except in the case of medical emergency or severe fetal abnormality. There are no exceptions for rape or incest. Violations of the ban are defined as unprofessional conduct by a physician and may lead to suspension or revocation of the person's license to practice medicine. New York Times reports that the only abortion clinic in Mississippi quickly filed a complaint (full text) (press release) in Mississippi federal district court challenging the constitutionality of the law.

UPDATE: On March 20, a Mississippi federal district court granted a temporary restraining order against enforcement of the new law. (AP)

Supreme Court Will Hear Arguments Today In California FACT Act Challenge

The U.S. Supreme Court will hear oral arguments today in National Institute of Family and Life Advocates v. Becerra. In the case, the U.S. 9th Circuit Court of Appeals upheld  California's FACT Act which requires licensed pregnancy counseling clinics to disseminate a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. (See prior posting.) The Supreme Court granted certiorari only on the free speech issues in the case, excluding review of the free exercise question. (See prior posting.)  SCOTUSblog's case page has links to all the briefs filed in the case, as well as to further analysis.

Indian State Moves To Grant Minority Religion Status To Lingayats

In the Indian state of Karnataka, the cabinet (on the recommendation of the State Minorities Commission)  has voted to grant the status of a separate religious minority to Lingayats, instead of treating them as a Hindu sect.  More controversially, the cabinet also voted to include Veerashaivas as part of the same community.  Lingayats, and Veerashaivas constitute 17% of the state's population.  India West and The Mirror report that the move is seen as an attempt by the ruling Congress party to attract the sect's votes away from the Hindu nationalist Bharatiya Janata Party in the state assembly elections that will be held in April and May. The cabinet recommendation now goes to the central government for approval under §2(c) of the Central Minority Commission Act.

Suit Alleges Religious Discrimination In Flag Mix-Up

ACLU of Kansas announced yesterday that it has filed a religious and ethnic discrimination lawsuit on behalf of an employee of Spirit AeroSystems against a recreational organization open to Spirit employees.  The organization owns a recreational lake in Wichita, Kansas that can be rented by the organization's members. The complaint (full text) in Zanial v. Spirit Boeing Employees' Association, (D KA, filed 3/19/2018) alleges:

11. On September 2, 2017, Mr. Zanial rented space at the SBEA recreation lake to host a party celebrating the end of Ramadan. The party was attended by approximately 45 guests, the majority of whom were of Malaysian Indian ancestry. Several of Plaintiff’s female guests, including his wife, were wearing hijabs. 

12. Because the party took place shortly after the 60th Anniversary of Malaysian Independence Day, Mr. Zanial’s guest, Nik Azri brought a Malaysian flag to the party. Mr. Zanial and his guests took turns posing with the flag.

This led to a complaint being filed:

Following the party, SBEA reported Mr. Zanial to the Spirit Aerosystems (“Spirit”) security team based on a concern that Mr. Zanial was affiliated with radical Islamic terrorism and alleged that he had used the SBEA lake to hold an ISIS meeting. SBEA alleged that Mr. Zanial and his guests had an American flag that had been “desecrated by ISIS insignia” and were wearing “Muslim garb.” SBEA restricted Mr. Zanial’s membership so he could no longer rent property to host events at the lake.

Proposed Knesset Bill Would Extend Israeli Rabbinical Court Jurisdiction Extraterritorially

JTA reports on an interesting family law bill that passed the first of three readings in Israel's Knesset earlier this month.  Jewish religious law, enforced in personal status matters in Israel by the country's Rabbinical courts, requires that a husband give his wife a "get" (bill of divorce)  in order for a divorce to be valid.  Under current law, Israel's Rabbinical courts can impose penalties, including fines and jail, to pressure an Israeli husband to give  his wife a "get." The proposed new legislation would extend jurisdiction of Israeli Rabbinical courts extraterritorially to any Jewish man who is unjustly withholding a "get."  Israeli courts could then fine or imprison the husband if he travels to Israel.  According to Pinchas Goldschmidt, president of the Conference of European Rabbis:

Today among Jews in Europe, everyone has relatives in Israel, or they’re thinking they might be moving there or forced to move there.  So this threat of a problem may make a lot of reluctant husbands free their wives.

Recent Articles of Interest

From SSRN:

• Ryan T. Anderson, Disagreement is Not Always Discrimination: On Masterpiece Cakeshop and the Analogy to Interracial Marriage, (Georgetown Journal of Law & Public Policy, Vol. 16, No. 1, 2018).
• Lee J. Strang, The Original Meaning of 'Religion' in the First Amendment: A Test Case of Originalism's Utilization of Corpus Linguistics, (Brigham Young University Law Review, Vol. 2017).
• Kathleen Brady, Religious Accommodations and Third-Party Harms: Constitutional Values and Limits, (106 Kentucky Law Journal, Issue No. 4, Forthcoming).
• James A. Davids, Religious Colleges' Employment Rights Under the 'Ministerial Exception' and When Disciplining an Employee for Sexually Related Conduct, (Texas Review of Law & Politics, Vol. 21, No. 3 (2018).
• Mark Storslee, Religious Accommodation, the Establishment Clause, and Third-Party Harm, (March 8, 2018).
• Timothy Zick, Introduction to The Dynamic Free Speech Clause: Free Speech and Its Relation to Other Constitutional Rights, (Oxford Univ. Press, 2018).
• Michael J. Higdon, Biological Citizenship and the Children of Same-Sex Marriage, (March 11, 2018).
• Hiroshi Fukurai & Alice Yang Murray, The History of Japanese Racism, Japanese American Redress, and the Dangers Associated With Government Regulation of Hate Speech, (Hastings Constitutional Law Quarterly, Vol. 45, 2018).
• Joel S. Newman, Conspicuous Philanthropy: A Response, (American University Law Review Forum, Vol. 67, No. 1, 2018).

From SSRN (Non-U.S. Law):

• M.C. Mirow, Léon Duguit, (In Olivier Descamps and Rafael Domingo, Great Christian Jurists in French History (Cambridge University Press, 2019) (Forthcoming)).
• Neil James Foster, Protection of Religious Freedom under Australia’s Amended Marriage Law: Constitutional and Other Issues, (Freedom of Religion or Belief: Creating the Constitutional Space for Other Fundamental Freedoms: 14th – 16th February 2018).
• Sheida Banasaznavaei, A Study on the Temporary Marriage Contract in Iranian Law — Are Women Safe in Temporary Marriage Contracts?, (January 5, 2018).

Recent Prisoner Free Exercise Cases

In Ralston v. Cannon, (10th Cir., March 13, 2018), the 10th Circuit held it could not review in an interlocutory appeal on qualified immunity the district court's conclusion that there was sufficient evidence to allow a reasonable juror to find that defendant intentionally interfered with plaintiff's right to free exercise by denying his kosher diet request.

In Roberts v. Perry, 2018 U.S. Dist. LEXIS 39596 (WD NC, March 9, 2018), a North Carolina federal district court dismissed with leave to amend an inmate's complaint that he was prevented from enrolling in the Messianic Faith Group to begin a weekly educational class, and that his mail (including religious correspondence and books from unauthorized sources) was stopped and another book was seized as contraband.

In Ward v. Rice, 2018 U.S. Dist. LEXIS 39884 (WD AR, March 12, 2018), an Arkansas federal district court allowed a Muslim inmate to move ahead with his complaint that prison policy bars the use of prayer rugs without alternatives being provided.  The court dismissed claims regarding the inmate's food tray and temporary denial of his Quran.

In Crowe v. Marquis, 2018 U.S. Dist. LEXIS 40062 (ND OH, March 12, 2018), an Ohio federal district court dismissed a Native American inmate's complaint that his prayer pipe was lost or stolen and that he was misinformed that prison policy would allow his family to send him tobacco.

In Venkataram v. Bureau of Prisons, 2018 U.S. Dist. LEXIS 39504 (SD FL, March 9, 2018), a Florida federal district court adopted in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 40075, Jan. 16, 2018) and dismissed an inmate's attempt to obtain a vegetarian diet that complies with Hindu religious requirements.

In Ali v. Eckstein, 2018 U.S. Dist. LEXIS 40878 (ED WI, March 13, 2018), a Wisconsin federal district court permitted a Muslim inmate to move ahead with his claim for nominal and punitive damages against one defendant growing out of the omission of plaintiff from the list to participate in the Ramadan meal bag program.

In Jones v. Finco, 2018 U.S. Dist. LEXIS 41191 (WD MI, March 13, 2018), a Michigan federal district court, adopting a magistrate's recommendation, dismissed a Muslim inmate's complaint about the food served to him during Ramadan.

In Mares v. LePage, 2018 U.S. Dist. LEXIS 41907 (D CO, March 13, 2018), a Colorado federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 140796, Aug. 31, 2017) and dismissed an inmate's complaint regarding impediments to changing his religious designation to Judaism, receiving kosher meals, a personal Torah and a visiting rabbi.

In Sangraal v. Godinez, 2018 U.S. Dist. LEXIS 41952 (SD IL, March 13, 2018), an Illinois federal district court awarded $1 nominal damages to a former inmate who followed pagan beliefs who challenged prisons' banning the pentacle, limiting the use of tarot cards, requiring additional screening of pagan literature, and subjecting him to religious messages in the chapel.

NYPD Sued Over Mugshot Policy For Muslim Women

AP reported yesterday on a lawsuit filed in federal district court in New York against the New York Police Department by two Muslim women who were forced to remove their hijabs to pose for mugshots.  While the NYPD says that its policy allows persons wearing religious head coverings to be taken to  a separate more private facility before removing the head covering to be photographed, apparently that policy was not followed in the case of the plaintiffs in this lawsuit. The women along with the advocacy group Turning Point for Women and Families brought the lawsuit as a class action. [Thanks to Tom Rutledge for the lead.]