Cert. Denied In Challenge To City's Removal of Cross

The U.S. Supreme Court yesterday denied certiorari in Dawson v. Grand Haven, MI, (Docket No. 17-1024, cert. denied 4/2/2018). (Order List).  In the case, the Michigan Court of Appeals in Dec. 2016 upheld a decision by the city of Grand Haven to stop display of a cross on a city-owned sand dune.  In the case, Dawson v. City of Grand Haven, the Michigan court had said in part:

More than 50 years ago, the "Dewey Hill monument" was donated to defendant as a memorial for those who served and died in the Vietnam War. The monument was placed on Dewey Hill, a sand dune that defendant owned on the Grand River. The Dewey Hill monument consisted of an elaborate lifting mechanism and foundation that was designed to maintain the sand dune. When the lifting mechanism is raised, a cross is displayed. The cross can be made into an anchor by placing attachments on the bottom and top of the cross. For many years, defendant raised the lifting mechanism to display the anchor or the cross when requested by individuals in the community. For many years, First Reformed Church, where several of the plaintiffs are members, paid the required fee and requested that the cross be displayed for its Worship on the Waterfront services, which were held at the waterfront stage and bleachers across the Grand River from Dewey Hill.

In January 2015, defendant passed Resolution 15-013. Pursuant to the resolution, the lifting mechanism of the Dewey Hill monument could only be raised to display the anchor....

Because the Free Speech Clause does not regulate government speech ..., and because the freedom of government to speak includes the right to removal of speech with which the government disapproves, ... Resolution 15-013, which prohibited the lifting mechanism of the Dewey Hill monument from being raised to show the cross, did not violate the Free Speech Clause.

Grand Haven Tribune reports on yesterday's denial of review by the Supreme Court.

Suit Challenges Air Force's Ban On Religious Flag-Folding Script At Retirement Ceremony

A suit was filed yesterday by two retired Air Force officers against the Air Force and several current officers complaining about action taken by defendants to prevent one of the plaintiffs from reading a religious-themed tribute to the American flag at the retirement ceremony of the other plaintiff.  The complaint (full text) in Rodriguez v. U.S. Department of the Air Force, (D DC, filed 4/2/2018), sets out a lengthy history of flag-folding ceremonies at Air Force retirement events.  It contends that retiring Master Sergeant Charles Roberson  invited retired Master Sergeant Oscar Rodriguez, Jr. to read the flag script Rodriguez had developed (full text), despite orders to the contrary by the Squadron Commander.  Three uniformed Airmen removed Rodriguez from the stage as he began to read his script.  The suit alleges that this violated plaintiffs' free speech and free exercise rights, as well as Rodriguez' Fourth Amendment and Due Process rights. First Liberty issued a press release announcing the filing of the lawsuit.

Recent Prisoner Free Exercise Cases

In Powers v. Jones, 2018 U.S. Dist. LEXIS 50418 (MD FL, March 27, 2018),  Florida federal district court allowed a Messianic Jewish inmate to move ahead against a Department of Corrections official with his complaint that authorities refused to provide him his Sabbath meal a day in advance so it would not be cooked on the Sabbath.

In March v. Aramark Corp., 2018 U.S. Dist. LEXIS 51258 (ED TN, March 28, 2018), a Tennessee federal district court allowed a Jewish inmate to move ahead with free exercise challenges regarding compliance of his meals with kosher standards and actions of correctional officials in serving him these meals.  However the court rejected plaintiff's attempts to challenge more broadly the food contract and conduct of the food service provider in obtaining and fulfilling the contract.

In James v. Virginia Department of Corrections, 2018 U.S. Dist. LEXIS 51284 (WD VA, March 28, 2018), a Virginia federal district court dismissed a Jewish inmate's complaint that he was not allowed to have matzah and grape juice for Sabbath ceremonies in his cell and his complaint that a cardiac version of the Common Fare diet was not available.

In Burke v. Clarke, 2018 U.S. Dist. LEXIS 51403 (WD VA, March 27, 2018) a Virginia federal district court allowed a Rastafarian inmate to move ahead on claims that he was not allowed congregate meetings with other Rastafarians and was not allowed Rastafarian holiday meals or religious items.

In Johnson v. Secretary of Corrections, 2018 U.S. Dist. LEXIS 52357 (D MN, March 27, 2018), a New Mexico federal district court dismissed, with leave to amend, a Muslim inmate's complaint charging religious and racial discrimination when he was fired from his prison job and reassigned to a less desirable one after he left early to attend a religious service.

In Bey v. Tennessee Department of Corrections, 2018 U.S. Dist. LEXIS 52572 (ED TN, March 29, 2018), a Tennessee federal district court dismissed a Muslim inmate's complaint that he could not buy certified Halal prayer oil, and his complaint regarding the Halal food menu and timing of Ramadan trays in 2014.

In Mack v. Walker, 2018 U.S. Dist. LEXIS 53316 (SD IL, March 29, 2018), an Illinois federal district court permitted an inmate to move ahead with his complaint that he was denied access to Hebrew Israelite religious services.

Creativity Movement Is Not A "Religion"

In Hale v. Federal Bureau of Prisons, (D CO, March 28, 2018), a Colorado federal district court in a 33-page opinion held that the White supremacist Creativity movement is not a "religion" for purposes of the Free Exercise clause of the First Amendment or the Religious Freedom Restoration Act.  In reaching this conclusion, the court (applying tests from a 1996 10th Circuit opinion) said that while Creativity has many of the accoutrements of religion, several other factors weigh against accepting its claim as being religious:

Creativity lacks an ultimate belief system that addresses philosophical and existential issues such as the nature of man, whether there is life after death, what role man plays in the universe, and the like. These beliefs address only the relative positions of people of different races during their lifetimes. Thus, the Court finds that Creativity fails to address ultimate ideas or metaphysical issues because it lacks any cosmological, teleological and existential focus....

Creativity does have a moral or ethical system, found mostly in its commandments. These commandments take definitive positions on what constitutes good, evil, right, and wrong in Creativity’s belief system. However, the system is less of a system and more of a single, binary precept.... Also at the same time, Creativity creates duties to itself, not to a higher power. There is no religious connotation to Creativity’s moral or ethical system; it is entirely based on the secular concern of white supremacy....

Creativity does not attempt to answer human kind’s basic questions; it either avoids questions or to the extent it has an answer, that answer is reduced to the single-dimensional idea of white dominance. 

Recent Articles of Interest

From SSRN:

• Josef Hien & Christian Joerges, Dead Man Walking: Current European Interest in the Ordoliberal Tradition, (EUI Department of Law Research Paper No. 2018/03 (2018)).
• Robert T. Miller, What is a Compelling Governmental Interest?, (Journal of Morality and Markets, (Forthcoming)).
• Ira C. Lupu & Robert W. Tuttle, #Metoo Meets the Ministerial Exception: Sexual Harassment Claims by Clergy and the First Amendment's Religion Clauses, (William & Mary Journal of Race, Gender, and Social Justice (2019 Forthcoming)).
• Melissa Crouch, Constitutionalism, Religion and Inequality: Perspectives from Asia, (Asian Journal of Comparative Law, Forthcoming).
• Susanna Mancini & Kristina Stoeckl, Transatlantic Conversations The Emergence of Society-Protective Antiabortion Arguments in the United States, Europe, and Russia, (S. Mancini, M. Rosenfeld, The Conscience Wars. Rethinking the Balance between Religion, Identity, and Equality, Cambridge University Press, 2018).
• Earl M. Maltz, The Constitution and the Trump Travel Ban, (Lewis & Clark Law Review, Forthcoming).
• Grant Christensen, A View from American Courts: The Year in Indian Law 2017, (Seattle University Law Review, Vol. 41, 2018).
• Sharon Cruz, The Search for Third Options in a Two-Bathroom Society, (1 International Comparative, Policy & Ethics Law Review 77 (2018)).
• Mohamed A. Arafa, Islam and Elder Care in Egypt after the Arab Spring Uprisings: Between Divine Law and Secular Law: Quo Vadis?, (CALUMET: Intercultural L. & Humanities Rev. [Law & Religion] (Online Fall 2017)).

From SmartCILP:

• Elizabeth B. Ludwin King, Transitional Justice and the Legacy of Child Sexual Abuse in the Catholic Church, 81 Albany Law Review 121-143 (2017/2018).
• A. Reid Monroe-Sheridan, "Frankly Unthinkable": The Constitutional Failings of President Trump's Proposed Muslim Registry, 70 Maine Law Review 1-34 (2017).
• Waseem Ahmad Qureshi, Can the Burning of Holy Books Ever Be Justified?, 24 Washington & Lee Journal of Civil Rights & Social Justice 63-102 (2017).

Recent Prisoner Free Exercise Cases

In Clark v. Daddysman, 2018 U.S. Dist. LEXIS 47976 (D MD, March 22, 2018), a Maryland federal district court dismissed an inmate's complaint that his kufi was wrongfully seized.

In Reynolds v. Beasley, 2018 U.S. Dist. LEXIS 48189 (SD MS, March 23, 2018), a Mississippi federal magistrate judge dismissed an inmate's complaint that he was not permitted to attend a Jum'ah service.

In Lanahan v. Taller, 2018 U.S. Dist. LEXIS 48669 (D MD, March 23, 2018), a Maryland federal district court dismissed a complaint by an involuntarily committed psychiatric patient that he was not permitted to go outside to conduct Native American religious ceremonies.

In Browning v. Pszczolkowski, 2018 U.S. Dist. LEXIS 49313 (ND WV, March 26, 2018), a West Virginia federal magistrate judge dismissed for failure to exhaust administrative remedies an Orthodox Jewish inmate's complaint regarding interference with various religious practices-- religious holidays, food, religious correspondence course, receipt of tefillin.

In Becker v. Carney, 2018 U.S. Dist. LEXIS 49590 (WD WA, March 26, 2018), a Washington federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 49708, Feb. 20, 2018) and dismissed a Muslim inmate's complaint that he was unable to obtain a religious diet that also met his therapeutic dietary needs. UPDATE: The dismissal was affirmed at Becker v. Carney (9th Cir., March 19, 2019).

White House Easter-Passover Greetings and Events

The White House today released a YouTube video of President Trump's Message for Passover and Easter. In a press release today the White House also summarized the events that will be part of the annual White House Easter Egg Roll, hosted by First Lady Melania Trump on April 2.  The event will be live streamed on the WH Info website.

Ireland Referendum Set on Constitutional Amendment Allowing Abortion

On Wednesday, Ireland's Minister for Housing, Planning and Local Government announced that he had set May 25 as the date for a referendum on a proposed amendment to Ireland's Constitution.  The amendment (full text) will allow Ireland's Parliament (Oireachtis) to enact laws permitting abortion.  Currently Ireland's Constitution (Art. 40, Sec. 3, Subsection 3) guarantees the "right to life of the unborn" (with due regard to the equal right to life of the mother). CNN reports on developments. [Thanks to Scott Mange for the lead.]

Rabbi Has RLUIPA "Substantial Burden" Claim Standing

Congregation ARIEL Russian Community Synagogue, Inc. v. Baltimore County, (D MD, March 28, 2018), is a challenge to a zoning denial of a synagogue's plans to build a new synagogue building on property it has purchased and to use an existing house on the property as a parsonage for its rabbi.  The denial was challenged on various constitutional and statutory grounds, including under RLUIPA.  Defendants raised numerous procedural objections, including a claim that the congregation's rabbi lacks standing as a plaintiff in the lawsuit.  The court concluded that the rabbi has standing to bring a RLUIPA substantial burden challenge, saying in part:

Plaintiffs argue that Maryland recognizes oral lease agreements, and the Court ... can infer that there is an oral lease agreement between ARIEL and Rabbi Belinsky. As a result, Plaintiffs maintain that Rabbi Belinsky has a property interest in the Property. The Court agrees.

However the court held that the rabbi does not have standing to bring RLUIPA non-discrimination and equal terms claims because those provisions apply only to a religious "assembly or institution."

Unordained Music Minister May Claim NJ Parsonage Exemption

In Clover Hill Reformed Church v. Township of Hillsborough, (NJ Tax Ct., March 23, 2018), the New Jersey Tax court held that, even though he is not ordained, a church's Minister of Music qualifies as an "officiating clergyman" so that he may claim the parsonage exemption from state property tax for the home furnished to him by the church. The court said in part:

Where adherents to a faith have a sincerely held belief that a person is a leader in providing worship services to a congregation, and that belief is corroborated by objective evidence of that person's training, experience, and responsibilities, the courts should hesitate to discount those beliefs because of the absence of an act, such as ordination, the court believes is necessary to impart the status of clergyman. It is not for the judiciary to impose on a religious congregation its view of who is or is not a clergyman in that congregation. The court's only role is to determine whether the legislative objectives expressed in the exemption statute have been met. 

President and Governors Honored Lubavitch Rebbe With Education Day Proclamations

Chabad.org reports that on March 27, President Donald Trump met in the Oval Office with a delegation of Chabad-Lubavitch rabbis to issue a Presidential Proclamation (full text) declaring the day "Education and Sharing Day."  This follows the tradition of every president since 1978 of issuing a similar proclamation to mark the birthday on the Jewish calendar of Chabad's former leader, Rabbi Menachem Schneerson.  This year for the first time, similar proclamations have been issued by the governors of all 50 states.

Establishment Clause Challenge To Rainbow Flags Is Dismissed

In Sevier v. Lowenthal, (D DC, March 26, 2018), the District of Columbia federal district court dismissed a suit which sought to require four members of the U.S. House of Representatives to remove Gay Pride Rainbow Colored Flags that they have placed in the hallways outside their offices.  The suit, filed by a vocal opponent of the Supreme Court's same-sex marriage decision, contends that display of these flags violates the Establishment Clause, as well as the equal protection and due process clauses.  As related by the court:

In Sevier’s view ... the gay pride flag “is a ‘religious symbol’ for the homosexual denomination,” ... and its “placement ... amounts to [Defendants’] endorsement of a particular religion.... Sevier’s “sex-based self-asserted identity narrative is that he prefers to be married to an inanimate object.” ... So, according to Sevier, unless Defendants “install a flag that represents people who self-identify as polygamists, machinists, zoophiles, and heterosexuals,”... their actions “treat ... the homosexual denomination of ... the church of moral relativism with disproportionate favor”....

Rejecting plaintiff's assertions, the court said that plaintiff's claims are premised on his argument that homosexuality is a religion, but he has offered "no legal support" for the argument. The court continued:

To be sure, the governing case law does not precisely define the contours of what constitutes “religion.”... But that does not mean there are no easy cases.... Whatever else religion might entail, it at minimum requires adherence to one or more fundamental beliefs.... “Homosexuality,” by contrast, is not a set of beliefs at all. It is a description of a person’s sexual orientation.... The gay rights movement bears no trappings of “religion” as that concept is widely understood, and Sevier has not plausibly alleged that a reasonable person would perceive the display of the rainbow flags as religious in nature.

Long Beach Post reports on the decision.

India Supreme Court Orders Protection For Inter-Religious Marriages

In Vahini v. Union of India, (India Sup. Ct., March 27, 2018), a 3-judge panel of the India Supreme Court in a 54-page opinion ordered India's central government and its state governments to take various measures to prevent assemblies of Khap Panchayats -- community assemblies that decide to take steps to prevent inter-caste or inter-religious marriages through violence or honor killing. The court ordered state governments to identify areas where honor killings or Khap Pahchayats have been reported in the last 5 years, and take special steps in those areas.  Authorities are to warn against action when they receive a tip.  The court went on:

Despite taking such measures, if the meeting is conducted, the Deputy Superintendent of Police shall personally remain present during the meeting and impress upon the assembly that no decision can be taken to cause any harm to the couple or the family members of the couple, failing which each one participating in the meeting besides the organisers would be personally liable for criminal prosecution. He shall also ensure that video recording of the discussion and participation of the members of the assembly is done on the basis of which the law enforcing machinery can resort to suitable action....

Despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the Khap Panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an F.I.R. under the appropriate provisions of the Indian Penal Code....

Additionally, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception.

India Today reports on the decision.

Church's Challenge To Zoning Denial Is Rejected

In Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, (D MD, March 27, 2018), a Maryland federal district court dismissed RLUIPA and constitutional challenges by a church to a county's refusal to grant it a zoning variance so it could convert a home it purchased into a house of worship.  The court, in its 35-page opinion, said in part:

Plaintiffs have not plausibly pled a substantial burden claim because the record shows that Reverend Ware did not have a reasonable expectation when she bought the Property that it could be used for the Church.

Plaintiff's discrimination claim focused on the fact that the church's members were African immigrants and on objections to the nature of its ministry.  The court said in part:

Plaintiffs have not alleged facts supporting an inference that the Board acted with intentional or purposeful discrimination.

Permanent Injunction Issued In Contraceptive Mandate Case

In Sharpe Holdings v. United States Department of Health & Human Services, 2018 U.S. Dist. LEXIS 51158 (ED MO, March 28, 2018), the complex current status of the Obama Administration's Affordable Care Act Contraceptive Mandate rules led a Missouri federal magistrate judge to grant a declaratory judgment and permanent injunction to two religious organizations that object to those rules.  The Trump Administration had issued broader exemptions that covered plaintiffs, and at that point the government moved to dismiss the case as moot.  However in December 2017, Pennsylvania and California federal district courts entered nationwide preliminary injunctions against enforcement of the Trump Administration's broader exemptions. (See prior postings 1, 2). Thus the Obama Administration rules were again in effect.  This led the court in yesterday's opinion to hold:

in light of the Eighth Circuit's prior reasoning on plaintiffs' RFRA challenge to the accommodation process, and particularly given that the government no longer advances a substantive defense thereof, this Court holds that plaintiffs have attained actual success on the merits and are entitled to a permanent injunction.

DC Circuit Hears Oral Arguments In Bus Ad Case

On Monday, the U.S. Court of Appeals for the D.C. Circuit heard oral arguments (audio of full arguments) in Archdiocese of Washington v. Washington Area Metropolitan Transit Authority.  In the case, the DC federal district court upheld advertising Guidelines of the Washington Metropolitan Area Transit Authority which, among other things, bar transit vehicle ads "that promote or oppose any religion, religious practice or belief." (see prior posting).

Puerto Rico Supreme Court Stays Seizure of Catholic Church Assets In Teacher Pension Dispute

AP reports that Puerto Rico's Supreme Court yesterday temporarily stayed a ruling entered earlier in the day by a trial court judge against the Catholic Archdiocese of San Juan. At issue is a lawsuit by Catholic school teachers seeking to preserve $4.7 million in pensions owed to them.  In 2016, the Archdiocese canceled pensions for current and former teachers because payouts exceeded contributions. The pension plan, created in 1979, did not require contributions by the teachers. Nearly half of the 80 schools operating in 1979 have now closed. The lower court had ordered seizure of any money or property owned by the Church in Puerto Rico to satisfy the pension liabilities. [Thanks to Scott Mange for the lead.]

Pro-Life Supporters Model Protest After Parkland School Walkouts

The pro-life movement has announced plans to piggyback on the student anti-gun violence walkouts that took place in schools around the country after the Parkland, Florida shooting.  Pro-life high school students are planning a similar 17-minute walkout from classes on April 11. As reported by Lifesite News, the idea originated with Rocklin, California high school student Brandon Gillespie after his history teacher was suspended for questioning the anti-gun violence walkout and commenting that the walkout would likely not have been tolerated if it was to protest abortion.  Sponsors of the pro-life march have tied it to the Parkland demonstrations by saying it will "test if there’s a double standard from school administration when it comes to allowing students to protest against destroyers of life and the tools they use."  Yesterday the Thomas More Law Center issued a press release stating that it will provide legal guidance to students planning the walkout, adding:

With the pro-life walk out, Gillespie seeks to answer the question of whether “Not One More” applies to all children, regardless of their age or birth status.

Britain's Court of Appeals Rules Against Gay Priest's Employment Discrimination Claim

In Pemberton v Inwood, (EWCA , March 22, 2018), the England and Wales Court of Appeal ruled against Jeremy Pemberton, a gay Church of England priest who was prevented from taking a position as a hospital chaplain when he married his same-sex partner.  Pemberton sued claiming employment discrimination and harassment. Lady Justice Asplin's opinion held that the action taken against Pemberton falls within a statutory exception from the Equality Act's discrimination provisions for religious organizations that impose various requirements regarding marriage and sexual orientation.  Rejecting Pemberton's harassment claim, Justice Asplin said in part:

If you belong to an institution with known, and lawful, rules, it implies no violation of dignity, and is not cause for reasonable offence, that those rules should be applied to you, however wrong you may believe them to be. Not all opposition of interests is hostile or offensive.

 The Guardian reports on the court's decision. (See prior related posting.)

Cult Leader Sentenced To 99 Years In Starvation Death of Young Boy

Dallas Morning News reports that a Texas jury last Friday sentenced 52-year old Aracely Meza-- the religious leader of a church known as Iglesia Internacional Jesus es el Rey-- to 99 years in prison and a $10,000 fine in the 2015 starvation death of a 2-year old boy.  Meza had ordered food to be withheld from the boy in order to exorcise the demon of manipulation that she believed possessed him.  The boy and his family lived on a commune run by Meza, who claims to be a prophet. When the boy died, his parents were afraid to report the death to police because they were undocumented aliens from Mexico.  With Meza, they took the boy for burial back to Mexico, where the parents remain.