6th Circuit: Church Restaurant Volunteers Are Not Covered By FLSA

In Acosta v. Cathedral Buffet, Inc., (6th Cir., April 16, 2018), the U.S. 6th Circuit Court of Appeals held that church volunteers who work at a for-profit restaurant operated by the church on its campus are not subject to the Fair Labor Standards Act.  The volunteers supplement paid staff.  The court held that because the volunteers do not expect to receive compensation and are not economically dependent on the restaurant, they are not "employees" for purposes of the FLSA.

The more difficult question faced by the court was the concern expressed in Supreme Court cases that employers might coerce employees to make assertions that they did not expect compensation.  In this case, it was argued, the church's pastor engaged in coercion of church members to volunteer:

Reverend Angley recruited volunteers from the church pulpit on Sundays....  [B]efore his sermon, Angley would announce to the congregation that more volunteers were needed. Angley said the restaurant was “the Lord’s buffet,” and “[e]very time you say no, you are closing the door on God.” ...Ushers would pass around slips of paper, and parishioners interested in volunteering would write down their phone number and hand it in.

Judge Siler's opinion for the court rejected this argument, saying that "spiritual coercion cannot stand in for the economic coercion" that concerned the Supreme Court in prior precedent.

Judge Kethledge filed a concurring opinion exploring the "coercion" argument at greater length, saying in part:

The Department seeks to regulate spiritual conduct qua spiritual conduct, and to impose significant liability as a result. ... [T]he Department’s position here is that otherwise legal conduct—such as volunteering at a church restaurant—becomes illegal if the worker’s pastor spiritually pressures her to engage in it.... 

Nor is the Department even competent to make the spiritual judgment it purported to make here. “It is not within the judicial ken to question the centrality of particular beliefs or practices to a faith, or the validity of particular litigants’ interpretations of those creeds.”... That same idea of centrality perforce lies beneath any judgment about spiritual coercion. And bureaucrats are no better than judges at making that judgment. Hence it is beyond the ken of federal agencies, or the courts, to determine that congregants were spiritually coerced even though the congregants themselves say they were not.... 

What is perhaps most troubling about the Department’s position in this case, however, is the conceit of unlimited agency power that lies behind it. The power of a federal agency is no more than worldly. The Department should tend to what is Caesar’s, and leave the rest alone.

Cleveland.com reports on the decision.

European Human Rights Court Can Now Issue Advisory Opinions

The European Court of Human Rights announced last week that Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (full text) has come into force after France became the tenth nation to ratify it. The Protocol allows courts in each European nation to request advisory opinions on the interpretation or application of the European Convention on Human Rights.  Requests for advisory opinions are limited to cases pending before the national court when the request is made.

European Court Says Bektashi Community Should Have Been Recognized

In Bektashi Community v. The former Yugoslav Republic of Macedonia, (ECHR, April 12, 2018), the European Court of Human Rights, in a Chamber Judgment, held that the Bektashi Community had wrongfully been denied registration as an officially recognized religious organization under Macedonia's 2007 Legal Status of Churches, Religious Communities and Religious Groups Act.  The Court held in part:

[T]he ground for refusing re-registration of the applicant association was purely formal, notably that it had not been registered by the Commission as a religious entity prior to 1998, but only listed in 2000. The Government omitted to indicate any legitimate aim which this formal restriction may have pursued....

After the registration court refused to re-register the applicant association under section 35 of the 2007 Act, the applicant association launched new proceedings for its registration under the name "Bektashi Religious Community of the Republic of Macedonia"....

The Court also rejected a name-confusion argument, finding that the name is "sufficiently specific to distinguish it from the 'Ehlibeyt Bektashi Religious Group of Macedonia'".  The Court went on:

The other ground relied on by the domestic courts concerned the doctrinal sources of the applicant association, which they found to be identical to the doctrinal sources of the already registered "Islamic Religious Community". That conclusion was made on the basis of an assessment by the domestic courts of the applicant association's fundamental precepts and their comparison with the precepts of the "Islamic Religious Community" .... In the Court's view, such an assessment and interpretation of the applicant association's basic tenets of creed was incompatible with the State's role as a neutral and impartial organiser of the exercise of various religions, faiths and beliefs, which excludes, save for very exceptional cases, any discretion on the part of the State to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed....

 Law & Religion UK has more on the decision.

USCIRF Issues New Report On Religious Freedom Challenges In Burma

The U.S. Commission on International Religious Freedom has recently issued an update on religious freedom challenges in Burma. (Full text of report).  The report, which particularly focuses on the conditions faced by Rohingya Muslims in Rakhine State, also more broadly summarizes the situation in the country:

Successive governments in Burma have failed to ensure that all religious communities are able to practice their faith freely, openly, and without fear, and in some cases have directly perpetrated, tolerated, or ignored religious- and ethnic-based discrimination and abuses. Religious and ethnic minorities are disadvantaged by:

• Institutionalized discrimination;

• Increasing anti-Muslim sentiment and the related rise of Buddhist nationalism, which has affected all religious minorities;

• A culture of impunity and lack of accountability for human rights abuses and crimes committed by military and nonstate actors; and

• Decades of ethnic armed conflicts and internal displacement.

The deprivation of Rohingya Muslims’ rights became even more acute following 2012 communal violence in Rakhine State...

Recent Articles of Interest

From SSRN:

• R. Michael Cassidy, Catholic Social Thought and Criminal Justice Reform, (Journal of Catholic Social Thought, Forthcoming).
• Giancarlo Anello & Mohamed A. Arafa, The Meaning of ‘Religion’ in the Legal Context: Some Remarks on the Pragmatics of Islam in Egyptian Law in Multicultural Societies Law, (39 Rivista Telematica [Milan Univ. L. J. “Italy”] (Fall 2017)).
• Trudo Lemmens, Charter Scrutiny of Canada's Medical Assistance in Dying Law and the Shifting Landscape of Belgian and Dutch Euthanasia Practice, (85 Supreme Court Law Review (2nd Series) (Forthcoming)).
• Micah Schwartzman, Official Intentions and Political Legitimacy: The Case of the Travel Ban, (NOMOS LXI: Political Legitimacy(2018)).
• Amos N. Guiora, Inciting Terrorism on the Internet: The Limits of Tolerating Intolerance, (Incitement to Terrorism (A. Bayefsky & L. Blank, eds, Brill 2018)).
• Sabir Ali, Usman Umer & Muhammad Waqas Butt, Role of English Press in Dissemination of Liberal Values for Women Empowerment in Pakistan: Honor Killing of Qandeel Baloch, (May 30, 2016).
• Mohammed Hussain, Vanja Hamzić: Sexual and Gender Diversity in the Muslim World: History, Law and Vernacular Knowledge, (VRUE Journal, Spring 2018, Forthcoming).
• Linda Sugin, Competitive Philanthropy: Charitable Naming Rights, Inequality, and Social Norms, (79 Ohio St. L. J. _ (2018)).

From SmartCILP:

• Gregory Brazeal, Between Description and Prescription: Law, Wittgenstein, and Constitutional Faith, 120 West Virginia Law Review 363-426 (2017).

Tax Objector's Strategy To Prevent Garnishment Does Not Constitute Tax Evasion

The Oregonian last week reported on a partial court victory by Christian tax objector Michael Bowman who for the last nearly 20 years has refused to file income tax returns unless some accommodation is made so none of his tax monies support abortion.  When in 2012 Oregon tax authorities began to garnish Bowman's bank account, he moved to keep only a small balance in his checking account by cashing his pay checks rather than depositing them.  This led federal authorities last year to charge him with felony counts of tax evasion.  However, last week an Oregon federal district court held that merely cashing pay checks, when his income was fully reported to the IRS, could not constitute tax evasion.  However Bowman still faces four federal misdemeanor counts of willful failure to file tax returns.

Recent Prisoner Free Exercise Cases

In Buckley v. Cook, 2018 U.S. Dist. LEXIS 59987 (SD IL, April 9, 2018), an Illinois federal district court dismissed without prejudice an inmate's complaint that the Alton County Jail did not offer formal religious services on Sundays. The court allowed him to proceed on certain unrelated claims.

In Little v. Guice, 2018 U.S. Dist. LEXIS 59995 (WD NC, April 6, 2018), a North Carolina federal district court dismissed an inmate's complaint that he was sanctioned for writing his cousin about the Moorish American faith.

In Chila v. Camden County Correctional Facility, 2018 U.S. Dist. LEXIS 60547 ( NJ, April 9, 2018), a New Jersey federal district court dismissed a female Muslim inmate's complaint that her hijab was taken from her, she was denied access to a Quran, and she could not leave her cell for religious worship.

In Johnson v. Bienkoski, 2018 U.S. Dist. LEXIS 61560 (MD PA, April 10, 2018), a Pennsylvania federal magistrate judge recommended dismissing without prejudice an inmate's complaint that his religious beads were confiscated and his commissary privileges were restricted during Ramadan.

In Robertson v. Call, 2018 Kan. App. Unpub. LEXIS 274 (KA App., April 13, 2018), a Kansas Court of Appeals agreed that a prison had not violated the Establishment Clause by limiting a Messianic Jewish inmate's visits with his rabbi to interaction through video conferencing rather than allowing face-to-face visits. It also agreed that a visit by a Christian ministries group had not violated the Establishment Clause.

In Michigan, Battle Over Appropriations For State Mandates On Private Schools, Continues

Detroit News yesterday reported on developments in Michigan in the battle over legislative appropriations to fund state mandates imposed on private and religious schools-- requirements such as fire drills and criminal background checks.  Last year, the state Court of Claims issued a preliminary injunction barring payment of the $2.5 million that the legislature had appropriated.  The Court's decision was based on Michigan's Blaine Amendment (inserted in the state constitution in 1970) that bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school". (See prior posting.)  On March 12, Immaculate Heart of Mary Catholic school in Grand Rapids, along with parents and state legislators, filed a counter-suit in the Court of Claims contending that the Blaine Amendment violates the free exercise, free speech and equal protection clauses of the federal constitution.  According to the Detroit News:

The Grand Rapids school’s lawsuit argues the state’s so-called Blaine Amendment was developed in a furor of “anti-Catholic sentiment” and should be disregarded in the debate over the $2.5 million state allocation for non-public schools.

The enjoined funding has been included by the legislature, over the opposition of Gov. Rick Snyder, in the proposed 2019 budget.

Michigan Supreme Court Reinstates Consumer Protection Challenge To Gym's Transgender Rules

The Michigan Supreme Court in  Cormier v. PF Fitness- Midland, LLC, (MI Sup. Ct., April 6, 2018), reversed a state appeals court's dismissal of a Michigan Consumer Protection Act lawsuit against Planet Fitness.  The lower court had held that plaintiff had abandoned her Consumer Protection Act claim.  Her suit challenges Planet Fitness' cancellation of her membership after her warnings to others about a transgender woman at the club.  The gym's rules allow transgender individuals to use locker rooms consistent with their gender identity.  AP reports on the decision. [revised]

Judge's Suit Challenging His Removal From Death Penalty Cases Moves Ahead

In Griffen v. Arkansas Supreme Court, (ED AR, April 12, 2018), an Arkansas federal district court held that sovereign and judicial immunity do not bar a suit for declaratory relief brought by a state court judge against justices of the Arkansas Supreme Court after they barred him from hearing death penalty cases.  Plaintiff, who is also a pastor, was active in demonstrations and vigils opposing the death penalty.  He contends that the action taken against him amounts to retaliation based on his speech and religion in violation of the 1st Amendment and the Arkansas Religious Freedom Restoration Act. The court held that he had stated a plausible claim for relief.  AP reports on the decision.

UPDATE: On April 24, defendants filed a writ of mandamus with the 8th Circuit challenging the district court's refusal to dismiss the lawsuit. (Arkansas Online).

Dolphins Cheerleader Claims Religious Discrimination In Limits On Her Social Media Posts

According to USA Today, former Miami Dolphins cheerleader Kristan Ann Ware this week filed a complaint with the Florida Commission on Human Relations against the Dolphins and the National Football League alleging religious and gender discrimination.  She says that in her annual work review, she was told not to discuss on social media her religious decision to abstain from sex before marriage.  She had posted a photo of her baptism online.  She contends that the players are not held to the same standards regarding discussion of religion on social media.

Magazine Says Muslims Are Thriving In America

National Geographic has posted a lengthy article titled How Muslims, Often Misunderstood, Are Thriving in America.  Here is an excerpt:

Today an estimated 3.45 million Muslims in America are living in a climate of hostility, their faith distorted by violent extremists on one end and an anti-Muslim movement on the other. The rise in animosity was stoked by fiery anti-Muslim rhetoric from conservative commentators and politicians, including the president. Trump repeatedly has described Islam as a threat, retweeting anti-Muslim videos from a British hate group and keeping his distance from the religion, like when he decided the White House, for the first time in more than two decades, would not host a dinner to mark Ramadan....

And yet Muslim communities in America are thriving. Modest clothes for women who cover their hair are being created by Muslims in the U.S. under labels like Haute Hijab and Austere Attire, and Macy’s is now selling fashion for Muslim women. Halal products, the Muslim equivalent of kosher, are available at Costco and Whole Foods. Mattel has even debuted a Muslim Barbie. The doll, complete with a head scarf, is modeled on Olympic fencer Ibtihaj Muhammad. There’s a Muslim liberal arts college in Berkeley, California, and a graduate school in Claremont, California. Community activism is thriving, and Muslim activists are forging alliances with other marginalized communities.

Trump Issues Proclamation On Holocaust Remembrance

Today is Yom Hashoah (Holocaust  Remembrance Day).  Yesterday President Trump issued a Proclamation (full text) asking the people of the United States:

to observe the Days of Remembrance of Victims of the Holocaust, April 12 through April 19, 2018, and the solemn anniversary of the liberation of Nazi death camps, with appropriate study, prayers and commemoration, and to honor the memory of the victims of the Holocaust and Nazi persecution by internalizing the lessons of this atrocity so that it is never repeated.

New Report On Worldwide Antisemitic Incidents

Yesterday Tel Aviv University's Kantor Center for the Study of Contemporary European Jewry released its 103-page report titled Antisemitism Worldwide General Analysis 2017 .  The Center highlights this excerpt:

In 2017, there was a moderate worldwide average decrease in antisemitic violent incidents that were directed at Jewish people, their communities and their private property, of about 9% (327 cases compared to 361 in 2016, according to the Kantor Center criteria). It does not include yet the numbers of violent incidents in France, which the Jewish security body is still elaborating. During the years 2006 to 2014, the violent cases worldwide numbered between 600 to 700 per year, while during recent years they decreased 300 to 400. But it should be emphasized that some of the recent violent cases have been perpetrated more brutally, causing more harm. And most important – this decrease is overshadowed by what is seen by the Jewish communities as a dramatic increase in all other forms of antisemitic manifestations, many of which are not even reported, most notably harassment in schools (some Jewish pupils moved to Catholic schools) and on social media.

AP reports on the data.

Law Student Religious Liberty Writing Competition Announced

The J. Reuben Clark Law Society has announced its 9th Annual Religious Liberty Writing Competition for law students and graduate students in related areas.  The deadline for submissions is July 1, 2018.

At Hearing Judicial Nominee Retreats From Prior Pro-Life Comments

Yesterday the Senate Judiciary Committee held a hearing on the nomination of Wendy Vitter to be United States District Judge for the Eastern District of Louisiana.  NPR reports on the hearing:

Wendy Vitter, nominated by President Trump for a federal judgeship, tried Wednesday to walk back several controversial comments she made about abortion and birth control.

Questioned by skeptical Democrats at her confirmation hearing, she maintained she could "put aside" her long-held "pro-life" advocacy, and as a judge enforce the Supreme Court's Roe v. Wade decision on abortion rights.

In particular, Vitter sought to distance herself from a brochure she had appeared to endorse while leading a panel at a pro-life conference in 2013. The panel was called "Abortion Hurts Women," and the brochure promoted a variety of unsubstantiated claims linking birth control pills to breast cancer, cervical and liver cancers, and "violent death."

Indiana Homicide Law Expanded To Cover Non-Abortion Killing of Fetus At Any Stage

On March 25, Indiana Governor Eric Holcomb signed Senate Bill 203 (full text).  The new law expands the state's murder and manslaughter laws to include killing of a fetus "at any stage of development".  Prior law covered only killing of a fetus that has attained viability.  The law does not apply to a lawfully performed abortion or to a pregnant woman who terminates her own pregnancy or kills a fetus she is carrying. Liberty Counsel issued a press release on the new law.

Update On Third Travel Ban Developoments

The Supreme Court will hear oral arguments on April 25 in Trump v. Hawaii, a group of challenges, including an Establishment Clause challenge, to President Trump's third travel ban. (See prior posting.) Over 70 amicus briefs have been filed in the case.  Links to them are on SCOTUSblog's case page.  Meanwhile, yesterday the White House announced that the President has signed a Proclamation removing Chad from the list of countries covered by the travel ban, saying in part:

Republic of Chad has improved its identity-management and information sharing practices sufficiently to meet the baseline security standard of the United States.  Chad nationals will therefore again be able to receive visas for travel to the United States.

India Supreme Court Affirms Right To Choose Religion and Marriage Partner

In Jahan v. Asokan K.M., (India Sup. Ct., April 9, 2018), a 3-judge panel of India's Supreme Court, in 61 pages of opinions, set aside a High Court's order that had annulled the marriage of a 26-year old student who had converted to Islam in order to marry. The court strongly affirmed the right of individuals to choose their religious faith and their marriage partner. The court's opinion by Chief Justice Misra said in part

It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression ... destroy the individualistic entity of a person.  The social values and morals have their space  but they are not above the constitutionally guaranteed freedom.  The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.  Faith of a person is intrinsic to his/her meaningful existence.  To have the freedom of faith is essential to his/her autonomy....

In the case at hand, the father ... may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the appellant.

A concurring opinion by Justice Chandrachud added:

The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life.... Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity.... Society has no role to play in determining our choice of partners. 

One India and The Hindu report on the decision.

Anti-Transgender Bathroom Initiative Voted Down In Anchorage

Anchorage Daily News reports that in Alaska's first-ever vote-by-mail election, a so-called "bathroom bill" initiative was defeated by Anchorage voters.  The Ballot Measure would have required that all municipally-owned facilities limit restrooms and locker rooms by sex as determined biologically rather than by gender identity.  The initiative would also have permitted other employers and public accommodations to adopt the same policy.  With virtually all ballots counted, the vote as reported last Friday was 40,378 opposed and 36,234 in favor.  Metro Weekly reports on reactions to the defeat.

Trump Cabinet Has Bible Study Group

BBC reports that President Trump's Cabinet has a weekly Bible study group, led by former professional basketball player-turned-pastor, Ralph Drollinger.  While not all Cabinet members attend each week, the group has ten "sponsors". Members of the group include Vice-President Mike Pence, Secretary of State Mike Pompeo, Education Secretary Betsy DeVos, Energy Secretary Rick Perry and Attorney General Jeff Sessions.  Some of the Cabinet members originally got to know Drollinger through his Capitol Ministries study groups in the House and Senate. According to BBC:

President Trump is not a member of Drollinger's group - but he is a Christian, and does get Drollinger's eight-page print-outs most weeks.

"He writes me back notes on my bible studies," says Drollinger.

"He's got this leaky Sharpie felt-tip pen that he writes all capital letters with. 'Way to go Ralph, really like this study, keep it up.' Stuff like that."

[Thanks to Scott Mange for the lead.]

Suit Challenges Limits On Homeless Drop-In Center

In St. Paul, Minnesota last week, Listening House, a daytime drop-in center for homeless, disadvantaged and lonely people, filed suit against the city seeking to prevent enforcement of a City Council resolution imposing unworkable limits on the operation of the center at its new home in the basement of First Lutheran Church.  The complaint (full text) in Listening House of St. Paul, Inc. v. City of St. Paul, (MN Dist. Ct., filed 4/2/2018), contends that the restrictions are arbitrary and capricious.  The Twin Cities Pioneer Press reported yesterday that First Lutheran Church has now joined as a plaintiff in the lawsuit.

Recent Articles of Interest

From SSRN:

• Mary Nobles Hancock, God Save the United States and this Honorable County Board of Commissioners: Lund, Bormuth, and the Fight Over Legislative Prayer, (76 Wash. & Lee L. Rev. (2019 Forthcoming)).
• Jonathan Moreno, Church Attendance, Petty Crime and Rain, (March 29, 2018).
• Steve Sanders, Dignity and Social Meaning: Obergefell, Windsor, and Lawrence as Constitutional Dialogue, (Fordham Law Review, Forthcoming).
• Shawn Fields, Brief of Amici Curiae Constitutional Law Scholars in Support of Respondents in Trump V. Hawaii, 17-965, (San Diego Legal Studies Paper No. 18-340 (2018)).
• Steve Sanders, Pavan v. Smith: Equality for Gays and Lesbians in Being Married, Not Just in Getting Married, (American Constitution Society Supreme Court Review 2016-2017).
• Timothy Horley, Rethinking the Heckler's Veto After Charlottesville, (Virginia Law Review, Vol. 104, No. 8, 2018).
• L.A. Latif, An Explication on Broadening the Definition and Scope of Maximum Available Resources Under General Comment 14 of the ICESCR to Include Islamic Taxation in Financing the Right to Health, (Biomed J Sci & Tech Res 1(3), 2017).

From elsewhere:

• Camilia R. Brown, The Violent Persecution of the Iranian Bahá’í: A Call to Take a Human Capabilities Approach to Defining Genocide, 43 Brooklyn Journal of International Law 361 (2018).

Recent Prisoner Free Exercise Cases

In Ackridge v. Aramark Correctional Food Services, 2018 U.S. Dist. LEXIS 54733 (SD NY, March 30, 2018), a New York federal district court in a lengthy opinion, while dismissing numerous claims, allowed a Jewish inmate to move ahead on his free exercise claim for delay in receipt of kosher meals and lack of regular Jewish religious services. The opinion includes a lengthy analysis of the state action doctrine as applied to the prison's food service contractor.

In Seamons v. Ramirez, 2018 U.S. Dist. LEXIS 55348 (D ID, March 30, 2018), an Idaho federal magistrate judge dismissed an inmate's complaint that, while in administrative segregation, he was limited to possessing no more than the five books and was not provided with regular, in-person, clergy visits.

In DePaola v. Clarke, 2018 U.S. Dist. LEXIS 55925 (WD VA, March 30, 2018), a Virginia federal district court allowed a Muslim inmate to move ahead with his claim that he was punished with reduced privileges for failing to shave his beard for religious reasons with no barbering services available to trim it, and that he was deprived of attending Jum'ah services or watching them on television.

In Allen v. Kunkel, 2018 U.S. Dist. LEXIS 56249 (D CT, April 2, 2018), a Connecticut federal district court allowed a Moorish-American inmate to move ahead with his complaint regarding denial of access to a particular book and refusal to allow him to purchase a fez.  It dismissed his claim that he was denied the right to choose his nationality under the Universal Declaration of Human Rights.

In Rickman v. Martin, 2018 U.S. Dist. LEXIS 55624 (WD MI, April 2, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 56828, Feb. 21, 2018) and allowed a Hebrew-Israelite inmate to move ahead with complaints that his request for a religious diet was denied as was his request to purchase a kufi and Star of David pendant.

In Hall v. Annucci, 2018 U.S. Dist. LEXIS 57317 (ND NY, April 4, 2018), a New York federal district court allowed a Muslim inmate to move ahead with his amended complaint that contends he was served meals that do not comply with requirements for Halal food.

In McLendon v. Montgomery County Jail, 2018 U.S. Dist. LEXIS 58365 (MD TN, April 5, 2018), a Maryland federal district court allowed an inmate to move ahead with 1st and 8th Amendment claims against a jail chaplain contending that plaintiff was not furnished nutritionally adequate meals that complied with his religious diet.

In Allen v. Holt, 2018 U.S. Dist. LEXIS 58362 (MD TN, April 5, 2018), a Tennessee federal district court held that inmates have not alleged a substantial burden on free exercise by alleging that during religious services in their housing pod the television is on at high volume and inmates not attending the service are out of their cells talking loudly.

In Larry v. Goldsmith, 2018 U.S. Dist. LEXIS 59100 (ED WI, March 30, 2018), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that officers prevented him from praying on one ocassion during
Ramadan, but dismissed for failure to exhaust administrative remedies his complaint that he was not allowed to have his meals during Ramadan later in  the day.

In Wells v. Gonzales, 2018 U.S. Dist. LEXIS 59198 (ED CA, April 6, 2018), a California federal magistrate judge recommended that a Native American inmate be allowed to move ahead with his complaint that a correctional officer confiscated and handled disrespectfully a native spiritual totem of Plaintiff's which was on display for Native Heritage Month. He also can pursue retaliation claims against defendant.  UPDATE: The court adopted the magistrate's recommendation at 2018 U.S. Dist. LEXIS 120099, July 17, 2018.

Fired Magistrate Has Due Process But Not Equal Protection Claim

In Edelstein v. Stephens, (SD OH, March 31, 2018), an Ohio federal district court adopted in part and rejected in part a magistrate's recommendations and held that a magistrate/ staff attorney who was fired after she requested eight days off for Jewish holidays had failed to allege an equal protection violation. However, the court concluded that plaintiff had adequately alleged a due process violation in her claim that her employment was terminated in a manner that "created the impression that Plaintiff had committed a serious violation of procedure, law or ethics and devastated Plaintiff's reputation in the legal community."

Challenge To Teaching Islam In History Curriculum Is Rejected

In Wood v. Arnold, (D MD, March 26, 2018), a Maryland federal district court dismissed a lawsuit by a high school graduate and her father complaining (1) that the school violated the Establishment Clause by teaching Islam in its World History course; (2) violated the student's free speech rights by requiring her to "confess" the Shahada; and (3) engaged in retaliation and suppression of speech in banning the student's father from school grounds after he expressed opposition to the school's curriculum. Summarizing its holding, the court said:

the First Amendment does not afford the right to build impenetrable silos, completely separating adherents of one religion from ever learning of beliefs contrary to their own, Nor, in this Court's view, does it prohibit a high school teacher from leading a purely academic study of a religion that may differ from the religious beliefs of some of his students.

Plaintiffs' Establishment Clause argument centered on a statement made by the World History teacher that "most Muslims faith is stronger than the average Christian". The court rejected plaintiffs'argument that the statement should be taken in isolation from the remainder of the curriculum, but concluded that even taken alone the statement, in the context it was made, did not violate the Establishment Clause.

Rejecting plaintiffs' compelled speech argument, the court held that requiring students to fill in the blanks in a quiz on the Shahda was merely aimed at fostering an understanding of the significance of the statements to Muslims.

Finally the court rejected the father's complaint about his exclusion from school grounds, finding that the father's statements on Facebook suggested that he was planning to cause disruption at the school.

Settlement Reached With NYPD In Muslim Surveillance Case

Last week, a settlement agreement (filed in New Jersey federal district court on April 5) (full text) was reached in Hassan v. City of New York. As reported by the New York Times, this settles the last of three major lawsuits challenging the New York City Police Department's surveillance of the Muslim community following 9/11. This suit was brought by Muslims in New Jersey who had been subjects of surveillance.  The 3rd Circuit had refused to dismiss, holding that plaintiffs had adequately stated free exercise and equal protection claims (See prior posting.)  A press release from Muslim Advocates summarizes agreement:

Under the terms of the settlement, the NYPD has confirmed it will reform its discriminatory and unlawful practices by agreeing to:

• Not engage in suspicionless surveillance on the basis of religion or ethnicity;
• Permit plaintiff input to a first-ever Policy Guide, which will govern the Intelligence Bureau’s activities, and to publish the Guide to the public;
• Attend a public meeting with plaintiffs so they can express their concerns about the issues in the lawsuit directly to the NYPD Commissioner or senior ranking official;
• Pay businesses and mosques damages for income lost as a result of being unfairly targeted by the NYPD and pay individuals damages for the stigma and humiliation harms they suffered for being targeted on the basis of their religion.

Break-Away Texas Anglican Group Loses In Latest Round of Long-Running Case

In The Episcopal Church v. Salazar, (TX App, April 5, 2018), a Texas state appeals court issued another ruling in a long running dispute over ownership of property of the Episcopal Diocese of Fort Worth. In 2008, the Diocese voted to disaffiliate from The Episcopal Church and to become part of the Anglican Province of the Southern Cone. In 2009, The Episcopal Church sued claiming ownership of the Diocese's property. The litigation has moved up and down the Texas court system, including to the Texas Supreme Court, ever since.  In this week's opinion, the state Court of Appeals reversed in part a trial court decision and held that control of the property resides in the group that remained with The Episcopal Church under the leadership of Bishop Scott Mayer, rather than with the break-away group led by Bishop Jack Iker. The court said in part:

Individual members of a parish may decide to worship elsewhere; a majority of individual members of a parish or diocese may decide to do so. But when they leave, they are no longer “Episcopalians” as identified by TEC; they become something else. And that something else is not entitled to retain property if that property, under the terms of the deed, is held in trust for a TEC-affiliated diocese or congregation. By rejecting TEC, Appellees also rejected any claim to items and property affiliated with TEC or with being a TEC-affiliated diocese to the extent that the instruments of ownership spell out an express interest. While a decision to disaffiliate is an ecclesiastical matter, what happens to the property is not, unless the affairs have been ordered so that the ecclesiastical decisions effectively determine the property issue....

In reaching its decision, the court refused to rely on  The Episcopal Church's Dennis Canon that "purports to impose a trust for TEC and TEC’s diocese on parish, mission, and congregation real and personal property," saying in part:

Because under Texas law, an entity that does not own the property to be held in trust cannot establish a trust for itself simply by decreeing that it is the beneficiary of a trust, the Dennis Canon, by itself, did not establish a trust under Texas law....

The Fort Worth Star Telegram reporting on the decision says that it is likely to be appealed to the Texas Supreme Court.

Fired Mormon City Manger Can Move Ahead Under Title VII Against Some Defendants

In Fuqua v. City of Altus, (WD OK, April 6, 2018), an Oklahoma federal district court allowed the former City Manager of an Oklahoma city to proceed with his Title VII religious discrimination suit against the city and its mayor, but dismissed his claims against two other city officials.  Plaintiff David Fuqua alleges that he was fired from his position because he is a Mormon and because he hired Mormons for the positions of Assistant City Manager and Public Works Director.  The court dismissed two defendants, the Chief Financial Officer and the City Clerk, because they had no formal role in evaluating Fuqua or in the decision to fire him, saying in part:

There is plenty of evidence that they agitated against plaintiff, or for his removal, on the basis of his religion, but there is none that suggests they played some formal role in the City’s dealings with plaintiff. Complaints and gossip, even lots of it, do not arise to the level of involvement necessary to establish the necessary causative link.

New York Budget Bill Passed With Special Curriculum Criteria For Yeshivas

On Monday, the New York legislature sent to Governor Andrew Cuomo for his signature the state Budget for the 2018-2019 fiscal year (S07059) (full text).  As described in detail by New York Jewish Week, the bill contains provisions (at pp. 194-195 of bill) designed to lower the secular curriculum requirements for  Orthodox Jewish yeshivas whose long school days emphasize religious study.  The New York Times explains the politics behind inclusion of the provision, and the varied interpretations of its impact on curriculum standards for such schools.

Suit Over "In Christ" E-Mail Signature Moves Ahead

In Mial v. Foxhoven, (ND IA, April 4, 2018), an Iowa federal district court refused to dismiss Title VII and state religious discrimination claims brought by Michael Mial who had been fired from his position as a security specialist in the Civil Commitment Unit for Sexual Offenders (CCUSO) of the Iowa Department of Human Services.  Mial's dismissal resulted from his insistence on using the valediction "In Christ" on e-mails he sent on his CCUSO e-mail account, in violation of a rule against personal messages in e-mail signatures.  The court found that Mial's signature message was part of his "religious belief that he must proclaim his faith in everything he does." The court rejected CCUSO's claim that  Establishment Clause concerns justified its refusal to offer Mial a reasonable accommodation, saying in part:

there is scant evidence that Mial’s use of “In Christ” at the end of work-related email messages (such as in various requests for shift changes or time off) would lead the public to assume CCUSO was endorsing a religion. 

The court concluded:

[D]efendants have not shown as a matter of law that the Establishment Clause prevented them from offering an accommodation. Nor have they demonstrated, as a matter of law, that Mial’s email valediction caused any disruption in the workplace or violated any neutral, generally applicable rules or procedures. Of course, the jury could decide that Mial’s use of the valediction violated neutral policies about professional conduct and following supervisory directives. If so, then a duty to accommodate may not apply. However, I am not able to reach such a conclusion as a matter of law. Defendants’ motion for summary judgment must be denied.

Arizona Appeals Court Invalidates Hotline Procedure For Overruling Parental Objections To Medical Treatment

In Glenn H. v. Hoskins, (AZ App., April 3, 2018), an Arizona state appeals court invalidated the "hot line" procedure that hospitals in Maricopa County use to obtain emergency orders to treat minors over the religious or other objections of their parents.  In the case, Jehovah's Witness parents objected to the use of blood transfusions in the treatment of their 14-year old son for bone cancer.  Apparently the boy agreed with his parents' decision.  Vacating the trial court's order authorizing medical treatment for the boy, the appeals court concluded that there are no provisions in Arizona statutes permitting courts to rule before a complaint has been filed, adding:

However well-intended the emergency hotline may be, the superior court lacks subject matter jurisdiction to entertain ex parte oral requests in the absence of specific statutory authorization.  See Redewill v. Superior Court, 43 Ariz. 68, 81 (1934) (“A court cannot do something not authorized by law, because it may think it is ‘just as good,’ or even better than the thing which the law does sanction.”)

AP reports on the decision.

Missouri High Court Rejects Church's Challenge To Signage Limits

In Antioch Community Church v. Board of Zoning Adjustment, (MO Sup. Ct., April 3, 2018), the Missouri Supreme Court upheld a zoning decision denying a Kansas City church a variance it sought so that it could retain the digital display on the sign in front of its church building. The decision focused primarily on technical interpretation of language in the Kansas City zoning ordinances regarding permissible signs in residential zones. The church, however, also raised First Amendment arguments which were rejected by the Court:

the Church’s brief on appeal notes most churches are located in residential areas and argues this means ordinances imposing limitations on signs in residential areas but not in commercial areas inherently discriminate against churches because of their location in residential areas.... Assuming for present purposes the Church were correct that an ordinance imposing additional restrictions on signs in residential areas could be considered content-based and discriminatory because churches tend to be located in residential areas, the Church did not preserve this claim.

KCUR reports on the decision. Also Court accompanied the opinion with a summary.

Refusal of "IM GOD" License Plate Can Be Challenged In Federal Court

In Hart v. Thomas, (ED KY, March 30, 2018), a Kentucky federal district court rejected an 11th Amendment sovereign immunity defense raised by the Secretary of the Kentucky Transportation Cabinet in a suit over an application for a personalized license plate.  Plaintiff Bennie Hart had applied for a license plate reading "IM GOD", to reflect his philosophy about religion.  Kentucky refused to issue the plate on the ground that it is offensive to good taste.  Hart sued contending that his First Amendment free speech rights were infringed when his application was denied. Friendly Atheist blog has more on the decision.

Air Force Upholds Right of Commander To Refuse To Sign Certificate For Same-Sex Spouse

Stars and Stripes reported yesterday that the Director of the Air Force Review Boards Agency has granted an appeal by an Air Force Colonel who had been disciplined for refusing to sign a "certificate of appreciation" for the same-sex spouse of a master sergeant in his unit who was retiring.  Col. Leland Bohannon refused to sign the certificate because he thought it would signify his personal endorsement of a marriage that violates his religious beliefs.  Eventually the certificate was instead signed by a two-star General.  The retiring master sergeant however filed an Equal Opportunity complaint, and Bohannon was stripped of command of the Air Force Inspection Agency and removed from consideration for a promotion to brigadier general.

In a letter (full text) to members of Congress who had intervened on Bohannon's behalf, the Secretary of the Air Force wrote:

The Director concluded that Colonel Bohannon had the right to exercise his sincerely held religious beliefs and did not unlawfully discriminate when he declined to sign the certificate of appreciation.... The Air Force has a duty to treat people fairly and without discrimination on the basis of race, color, sex, national origin, or sexual orientation and met that duty by having a more senior officer sign the certificate.

The Air Force places a high value on the rights of its members to observe the tenets of their respective religions or to observe no religion at all. The decision on appeal applied current Air Force policy and the law.  It is an example of a situation in which protected, and potentially competing, interests must be carefully examined and resolved.

Recent Prisoner Free Exercise Cases

In Patterson v. Quigley, 2018 U.S. Dist. LEXIS 54165 (ED PA, March 30, 2018), a Pennsylvania federal district court refused to dismiss a Muslim inmate's complaint that the presence of guns during religious services generally prevented him from focusing on prayer, and that he was also prevented from engaging in religious exchange with other inmates.

In Muhammad v. Wheeler, 2018 U.S. Dist. LEXIS 54292 (ED AR, March 30, 2018), an Arkansas federal district court ordered that a Muslim inmate be provided a halal diet that includes one daily serving of halal meat, kosher meat or fish.

In Johnson v. Lopez, 2018 U.S. Dist. LEXIS 54348 (D NV, March 30, 2018), a Nevada federal district court allowed a Muslim inmate to proceed on his claim that he was denied adequate edible food, that he was denied his Eid al-Fitr feast in 2014, and on his request to be allowed to possess scented oils and obtain pre-dawn Ramadan meals.

In Dorsey v. Shearin, 2018 U.S. Dist. LEXIS 54440 (D MD, March 30, 2018), a Maryland federal district court dismissed a complaint by a Native American inmate that he was not allowed to attend group religious services because of his disciplinary segregation.

In Sims v. Jones, 2018 U.S. Dist. LEXIS 53094 (ND FL, March 29, 2018), a Florida federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 54652, March 1, 2018) and dismissed a Muslim inmate's 1st Amendment challenge to a beard length rule and strip search policy.  The magistrate had concluded, however, that defendant had violated RLUIPA.  The court, nevertheless, sent back to the magistrate judge for additional consideration plaintiff's RLUIPA challenges.

In Sanford v. Madison County, Illinois, 2018 U.S. Dist. LEXIS 54704 (SD IL, March 29, 2018), an Illinois federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 54709, March 1, 2018) and dismissed a Muslim inmate's complaint that the county jail did not allow Jumu'ah services to be held in a common space on Fridays, but only allowed use of a fellow-inmate's cell.

In Lombardo v. Freebern, 2018 U.S. Dist. LEXIS 54735 (SD NY, March 30, 2018), a New York federal district court dismissed without prejudice claims by a Jewish inmate at a psychiatric detention center that his free exercise was burdened by denial of religious items and grape juice, interruption of his conversation with a rabbi, delivery of a broken menorah and denial of attendance at a Passover seder.

Pakistan's Chief Justice Sets Up Offices To Receive Minority Group and Human Rights Complaints

UCA News yesterday reported that Pakistan's Chief Justice has set up two separate units in the Court's Lahore office, one to receive and deal with complaints by minorities (including religious minorities), and the other to similarly receive and deal with human rights complaints. Chief Justice Nisar ordered his staff to set up the new offices after his own security forces prevented him from talking with the mother of the victim of a police shoot out. Christian political groups in Pakistan praised the Chief Justice's action.

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.

Vermont Legislators Join Fight Against Mormon Utopian Village Plans

The NewVistas Foundation is a non-profit organization promoting the building of model communities based on writings of Mormon prophet Joseph Smith.  NewVistas wealthy founder David Hall is buying up land in Provo, Utah and near Joseph Smith's birthplace in Vermont to create two of these villages. As reported in 2016 by Bloomberg Businessweek :

Hall is a fourth-generation Mormon. “Joseph Smith was just the wildest guy out there,” he says. “Lots of things he did were stupid, but in my view, he was a sage or a seer and didn’t even understand what came to him.” As the story goes, the plat plan appeared to Smith while he was studying Enoch, an Old Testament prophet who designed a city so perfect it was whisked off to heaven. The text accompanying the blueprint, written out by Smith and his comrades, says each plat should house 15,000 to 20,000 people within one square mile (though the definition of a mile has changed slightly), and that the design should be replicated worldwide. Written in the style of 15th century English, it reads: “When this square is thus laid off and supplied, lay off another in the same way, and so fill up the world in these last days, and let every man live in the city, for this is the city of Zion.”

These plans have stirred opposition, and in Vermont (as reported this week by AP) a resolution opposing the planned village has been introduced in the Vermont House of Representatives.  HR 20 (full text) introduced March 21 with 12 co-sponsors, says in part:

the NewVistas project would destroy the traditional and compacts settlement pattern in the four towns, convert large amounts of productive agricultural lands and forestland into development, undermine the historic character of these towns, degrade the area’s natural resources, and reduce game and wildlife populations.

Faith Healing Parents Convicted In Daughter's Death

AP reports that in Reading, Pennsylvania, Jonathan and Grace Foster were convicted of involuntary manslaughter and child endangerment in the death of their 2-year old daughter.  The Fosters are members of Faith Tabernacle Congregation which teaches that doctors and pharmaceuticals should be avoided.  Their daughter died of pneumonia after the couple failed to seek medical treatment for the girl whose cold symptoms turned severe.

Israeli Court Says Jews Have Right To Pray At Temple Mount Gates

Arutz Sheva and Jerusalem Post report that in Israel yesterday, a Jerusalem Magistrate's Court has ruled that police acted improperly in attempting to prevent three 14-year old Jewish girls from praying at the Bab al-Huttah gate to the Temple Mount in the Old City of Jerusalem.  Police contended that the girls were attempting to create a provocation since they timed their prayers to coincide with the end of Muslim prayers on the Temple Mount.  The girls had undertaken similar activity before and were issued restraining orders by the police.  The court held that the girls have the same right as Muslims to pray at that location, saying in part:

[I]t is the right of every person to pray in the State of Israel on the streets of a city, provided this does not violate the rights of others.... The police representative's argument that throwing of objects would have resulted from the young women's presence is unacceptable to me, as I wouldn't have accepted the claim that a man with a wallet full of cash walking in a neighborhood where many pickpockets live violates public safety and invites offenses.

Recent Articles and Books of Interest

From SSRN:

• Christian Burset, Why Didn't the Common Law Follow the Flag?, (Virginia Law Review, 2019, Forthcoming).
• Loren Mulraine, Religious Freedom: The Original Civil Liberty, (Howard Law Journal, Vol. 61, No. 1, 2017).
• Ryan T. Anderson, Shields, Not Swords, (National Affairs, Number 35, Spring 2018).
• Linda C. McClain, The Rhetoric of Bigotry and Conscience in Battles Over 'Religious Liberty v. LGBT Rights', (Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William S. Eskridge, Jr. & Robin Fretwell Wilson, eds., Cambridge University Press, Forthcoming).
• Kate Bezanson, Reconciling Rights in Tension: Freedom of Religion and Equality in Trinity Western University, (December 20, 2017).
• Paul M. Secunda, Foreword: Wedding Cakes, Religion, and Sexual Orientation Discrimination, (19 Marquette Benefits & Social Welfare L. Rev. (forthcoming 2018)).
• Jaclyn L. Neo, Definitional Questions: A Critique of the Definition of Religion and Essential Practice Tests to Allocate Constitutional Protection, (International Journal of Constitutional Law, Forthcoming).
• Arif A. Jamal, Authority and Plurality in Muslim Legal Traditions: The Case of Ismaili Law, (American Journal of Comparative Law, Forthcoming).

Recent Books:

• Niels Valdemar Vinding, Exploring the Multitude of Muslims in Europe, (Brill, March 12, 2018).
• Christopher McCrudden, Litigating Religions: An Essay on Human Rights, Courts, and Beliefs, (Oxford Univ. Press, March 25, 2018).
• Khaled A. Beydoun, American Islamophobia: Understanding the Roots and Rise of Fear, (Univ. California Press, April 2018).

European Court Upholds Germany's Removal of Children From Religious Sect Parents

Last week in the cases of Tlapak and Others v. Germany and Wetjen and Others v. Germany, (ECHR, March 22, 2018), the European Court of Human Rights in Chamber Judgments upheld the action of a German Family Court against claims by four families asserting their Article 8 Convention right to respect for private and family life.  A press release from the European Court described last week's decisions:

The cases concerned the partial withdrawal of parental authority and the taking into care of children belonging to the Twelve Tribes Church (Zwölf Stämme), living in two communities in Bavaria (Germany). In 2012 the press reported that church members punished their children by caning. The reports were subsequently corroborated by video footage of caning filmed with a hidden camera in one of the communities. Based on these press reports, as well as statements by former members of the church, the children living in the communities were taken into care in September 2013 by court order. The proceedings before the European Court have been brought by four families who are members of the Twelve Tribes Church. They complain about the German courts’ partial withdrawal of their parental authority and the splitting up of their families.

The Court agreed with the German courts that the risk of systematic and regular caning of children justified withdrawing parts of the parents’ authority and taking the children into care. Their decisions had been based on a risk of inhuman or degrading treatment, which is prohibited in absolute terms under the European Convention.

Chamber judgments may be appealed to the Grand Chamber.