Unusual Brief Filed In Appeal of Parsonage Allowance Case

As previously reported, last October in Gaylor v. Mnuchin a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause.  The case has been appealed to the U.S. 7th Circuit Court of Appeals.  Yesterday an unusual amicus brief (full text) was filed by ADF on behalf of 8,899 Christian pastors from all 50 states.  The brief's 12-pages of legal arguments in favor of the constitutionality of the exemption are followed by a 200-page list of the pastors and churches on whose behalf the brief was filed.

President Proclaims May As Jewish American Heritage Month

Yesterday President Donald Trump issued a Presidential Proclamation (full text) declaring May 2018 as Jewish American Heritage Month.  The Proclamation reads in part:

The American Jewish community is a shining example of how enshrining freedom of religion and protecting the rights of minorities can strengthen a nation.  Through their rich culture and heritage, the Jewish people have triumphed over adversity and enhanced our country.  For this and many other reasons, the American Jewish community is deserving of our respect, recognition, and gratitude.

Former Vatican Official To Stand Trial In Australia On Some Sex Offense Charges Against Him

In Australia yesterday, a Melbourne Magistrate's Court ruled that Cardinal George Pell must stand trial on some of the sex offense charges lodged against him.  Crux reports:

Following a four-week committal hearing last month, an Australian magistrate on Tuesday dismissed some of the most serious charges of “historical sexual offenses” against Cardinal George Pell but also ruled that the 76-year-old prelate will stand trial on at least three different complaints....

Pell is currently on a leave of absence from his post as the Vatican’s Secretary for the Economy, and he becomes the most senior Church official ever to face criminal charges of sexual abuse in a civil court of law.

Court Refuses To Dismiss Challenge To Town's Settlement Agreement On Mosque Construction

In Quick v. Township of Bernards, (D NJ, April 30, 2018), a New Jersey federal district court denied defendant's motion to dismiss a lawsuit challenging a settlement agreement entered by the Township of Bernards to settle a dispute over construction of a mosque in the Township.  Under the settlement agreement, a new Planning Board hearing on permitting construction of the mosque was to be held.  One of the stipulations, however, was that at the hearing "No commentary regarding Islam or Muslims will be permitted." (See prior posting).  Plaintiffs contend that this is an unconstitutional suppression of speech based on its content and viewpoint, is a prior restraint on speech, denies plaintiffs procedural due process, violates the Establishment Clause by favoring Islam over other religions, and violates the 1st Amendment's petition clause. New Jersey Law Journal reports on the decision.

Congressional Freethought Caucus Is Launched

In a press release yesterday, four members of the U.S. House of Representatives announced the formation of the Congressional Freethought Caucus.  The founders set out four goals for the new organization:

1) to promote public policy formed on the basis of reason, science, and moral values; 2) to protect the secular character of our government by adhering to the strict Constitutional principle of the separation of church and state; 3) to oppose discrimination against atheists, agnostics, humanists, seekers, religious and nonreligious persons, and to champion the value of freedom of thought and conscience worldwide; and 4) to provide a forum for members of Congress to discuss their moral frameworks, ethical values, and personal religious journeys.

The Caucus will be co-chaired by Representatives Jared Huffman (D-CA) and Jamie Raskin (D-MD).  Other founding members are Representatives Jerry McNerney (D-CA) and Dan Kildee (D-MI).

Certiorari Denied In Christian School's RLUIPA Lawsuit

The U.S. Supreme Court today denied review in Livingston Christian Schools v. Genoa Charter Township, (Docket No. 17-914, certiorari denied 4/30/2018) (Order List).  In the case, the U.S. 6th Circuit Court of Appeals dismissed a RLUIPA claim by a Christian school that was denied a special use permit needed for it to relocate. The school had concluded that remaining in its present location on a long-term basis would end in its dissolution from lack of enrollment and income.  However the Court held as a matter of law that the denial of the permit did not impose a "substantial burden" on the school. (See prior posting.)

British Court Gives Coroners Guide On Prioritizing Release of Bodies For Religious Reasons

In Adath Yisroel Burial Society v. HM Senior Coroner For Inner North London,  (EWHC, April 27, 2018), a 2-judge panel in England's High Court held unlawful the policy of a London Coroner to categorically refuse to give priority to releasing a body for burial when requested to do so for religious reasons. Jewish and Muslim religious law calls for burial to take place quickly after death. The court summarized its holding in part as follows:

(1) A Coroner cannot lawfully exclude religious reasons for seeking expedition of decisions by that Coroner, including the Coroner’s decision whether to release a body for burial.

(2) A Coroner is entitled to prioritise cases, for religious or other reasons, even where the consequence of prioritising one or some cases may be that other cases will have to wait longer for a decision.... 

(3) Whether to accord one case priority over another or others is for the Coroner to determine. The following further points apply:

a) It is in principle acceptable for the Coroner to implement a policy to address the circumstances when priority will or may be given, so long as that policy is flexible and enables all relevant considerations to be taken into account.

b) The availability of resources may be a relevant consideration in drawing up that policy or in making the decision in any individual case but limitations on resources do not justify discrimination.

(4) It would be wrong for a Coroner to impose a rule of automatic priority for cases where there are religious reasons for seeking expedition.

JTA reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:

• Ryan T. Anderson, A New Time for Choosing on Life, Liberty, and the Pursuit of Happiness: Today's Challenges to the Principles of Ronald Reagan's Conservative Manifesto, (The Reagan Manifesto: “A Time for Choosing” and its Influence, edited by Eric D. Patterson and‎ Jeffry H. Morrison. Palgrave Macmillan (2016)).
• Angela Carmella, When Businesses Refuse to Serve for Religious Reasons: Drawing Lines between 'Participation' and 'Endorsement' in Claims of Moral Complicity, (Rutgers Law Review, Vol. 69, 2018).
• Tarunabh Khaitan & Jane Calderwood Norton, The Place of Religion in Human Rights Law: Distinguishing Freedom of Religion from the Right Against Religious Discrimination, (April 13, 2018).
• Peter J. Hill, The Ideological Origins of the Rule of Law, (Presented at The Life and Legacy of Douglass North Celebrating the 25th Anniversary of North’s Nobel Prize in Economics, March 2018).
• Kate Elengold, Consumer Remedies for Civil Rights, (Boston University Law Review, Forthcoming).
• Guy Pessach & Michal Shur-Ofry, Copyright and the Holocaust, (Yale Journal of Law and the Humanities, Forthcoming).

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

• Ivo Telec, Spiritual Healing As a Religious Act. Czech Legal View, (April 4, 2018).
• Myriam Hunter-Henin, English Schools with a Religious Ethos: For a Re-Interpretation of Religious Autonomy, (Religion and Human Rights, Forthcoming).
• Richard Moon, Conscientious Objection in Canada: Pragmatic Accommodation and Principled Adjudication, (Oxford Journal of Law and Religion, Forthcoming).
• Md. Jahirul Islam, Masahiro Suzuki, Nurunnahar Mazumder & Nada Ibrahim, Challenges of Implementing Restorative Justice for Intimate Partner Violence: An Islamic Perspective, (Journal of Religion & Spirituality in Social Work, Forthcoming).

From SmartCILP:

• Mark A. Goldfeder, Michelle K. Terry, To Repeal or Not Repeal: The Johnson Amendment, 48 University of Memphis Law Review 209-255 (2017).

Recent Prisoner Free Exercise Cases

In Howard v. Skolnik, (9th Cir., April 23, 2018), the 9th Circuit upheld a prison's cancellation of Nation of Islam services for security reasons.

In Wallace v. Ducart, 2018 U.S. Dist. LEXIS 66371 (ND CA, April 19, 2018), a California federal district court held that an inmate could move ahead with an equal protection claim alleging that he was fired from his prison job because of his religion.

In McDougald v. Davis, 2018 U.S. Dist. LEXIS 66626 (SD OH, April 20, 2018), an Ohio federal magistrate judge recommended dismissing a Jewish inmate' complaint that he was initially denied kosher meals.

In Ealom v. United States, 2018 U.S. Dist. LEXIS 66792 (D KA, April 20, 2018), a Kansas federal district court held that a female Muslim inmate who claimed that she has been harassed about her religious headgear and once was not allowed to go receive medication until she removed it did not adequately allege free exercise of 8th Amendment claims.

In Rose v. Annucci, 2018 U.S. Dist. LEXIS 67017 (ND NY, April 19, 2018), a New York federal magistrate judge recommended dismissing claims by a Muslim inmate that he was not permitted to participate in Eid-Ul-Adha and Ramadan.  Plaintiff, among other things, refused or failed to comply with required paperwork.

In Hill v. Smith, 2018 U.S. Dist. LEXIS 67019 (ND NY, April 19, 2018), a New York federal magistrate judge recommended dismissing a formerly-Protestant but now Muslim inmate's complaint that he was told to take off his Kufi.  Apparently authorities were concerned that its color indicated gang affiliation.

In Snowden v. Prince George's County Department of Corrections, 2018 U.S. Dist. LEXIS 68419 (D MD, April 23, 2018), a Maryland federal district court denied a default judgment to Muslim inmates complaining that they were prevented from having Friday religious services and daily congregational prayers.

In Cary v. Crooms, 2018 U.S. Dist. LEXIS 69377 (ED MI, April 25, 2018), a Michigan federal district court allowed a Native American inmate to move ahead with his complaint over the way his medicine bag and herbs were treated during a cell search.

In Clark v. United States, 2018 U.S. Dist. LEXIS 69527 (ED KY, April 24, 2018), a Kentucky federal district court dismissed an inmate's complaint that a correctional officer made derisive comments about his being a Moorish-American Muslim.

In Irsan v. Gonzalez, 2018 U.S. Dist. LEXIS 70204 (SD TX, April 26, 2018), a Texas federal district court dismissed a Muslim inmate's complaint that during Ramadan he was offered only peanut butter sandwiches instead of hot Halal meals, and his charge that items he used for religious purposes were confiscated from his cell in retaliation for his Muslim beliefs.

Jury Awards $5.1M In EEOC Suit For Religious Coercion of Employees

According to an EEOC press release, after a 3-week trial in federal district court in New York, a jury awarded $5.1 million in compensatory and punitive damages against United Health Programs of America, Inc. and its parent company for coercing ten employees to engage in religious practices, creating a hostile work environment for nine of them, and firing one employee for opposing these practices.  The EEOC, which filed suit on behalf of the employees, reports:

CCG employees were forced to engage in a variety of religious practices at work, including prayer, religious workshops, and spiritual cleansing rituals. These practices were part of a belief system called "Harnessing Happiness" or "Onionhead," created by the aunt of CCG's CEO's. The judge previously ruled such practices constituted a religion, for purposes of Title VII. The aunt, employed by CCG as a consultant and fully supported by CCG's upper management, spent substantial time in the company's offices from 2007, implemented the religious activities at the workplace and had a role in employee hiring and firing.

The EEOC also plans to seek injunctive relief and back pay for the fired employee.

Synagogue Loses Challenge To Storm Water Remediation Fee

In Shaarei Tfiloh Congregation v. Mayor and City Council of Baltimore, (MD App., April 27, 2018), in a suit by a synagogue the Maryland Court of Special Appeals held that Baltimore's Storm Water Remediation Fee is an excise tax, not a property tax.  Thus the tax exemption for property used for public religious worship does not apply.  The court also held that RLUIPA is not applicable because the Storm Water Fee is not a land use regulation.

Abortion Protester's Bomb Prophecy Was Not A "True Threat"

Thames v. City of Westland, (ED MI, April 20, 2018) is a suit by a pro-life advocate who was arrested and held over the weekend on charges of making a terrorist threat while protesting at an abortion clinic.  Kimberly Thames, while picketing the clinic, allegedly said "I prophesy bombs, I prophesy bombs. There is going to be a bombing in the near future."  A Michigan federal district court concluded that an issue of fact exists as to whether officers had probable cause to arrest Thames:

Mich. Comp. Laws § 750.543m only criminalizes “true threats” which involve a “serious expression of an intent to commit an act of unlawful violence,”.... In the vague context allegedly used by Thames, at least a jury question exists as to whether it amounts to a true threat.

The evidence suggests that Defendant Officers did not consider the statement to be a true threat as they did not direct evacuation of the clinic, did not request the assistance of a bomb squad, did not request the assistance of a bomb sniffing dog, did not search the clinic for a bomb, did not search the surrounding area for a bomb, did not search the adjacent parking lot for a bomb, did not search the dumpster for a bomb, and did not impound Thames’ vehicle for fear that a bomb might be planted in it.

The court denied motions for summary judgment on wrongful arrest, retaliatory arrest (as to some defendants) and equal protection claims.

House Chaplain Ousted By Speaker Ryan-- Reasons Unclear

The Hill reports that House of Representatives Chaplain Patrick Conroy has resigned under pressure to do so from House Speaker Paul Ryan.  Conroy, a Jesuit priest, had served as House Chaplain since 2011.  The reason for Conroy's ouster is unclear, and a bipartisan group of Representatives are circulating a letter asking Ryan to explain his action. Some have suggested that the firing stems from a prayer delivered by Conroy in November that could have been seen as critical of the Republican tax-cut bill then under consideration.

USCIRF Issues 2018 Annual Report

On Tuesday, the U.S. Commission on International Religious Freedom issued its 228-page 2018 Annual Report (full text). A press release from USCIRF summarizes its key points:

A key component of the report is USCIRF’s recommendations of countries for designation as “countries of particular concern,” or CPCs, under the International Religious Freedom Act (IRFA). CPCs are governments that engage in or tolerate systematic, ongoing, egregious violations of religious freedom.       

In its 2018 report, USCIRF recommends 16 countries for CPC designation: 10 that the State Department so designated in December 2017—Burma, China, Eritrea, Iran, North Korea, Saudi Arabia, Sudan, Tajikistan, Turkmenistan, and Uzbekistan—and six others—Central African Republic, Nigeria, Pakistan, Russia, Syria, and Vietnam.

The report also includes a second category, USCIRF’s Tier 2, for countries where the violations meet one or two, but not all three, of the elements of the systematic, ongoing, egregious test. In its 2018 report, USCIRF places 12 countries on its Tier 2: Afghanistan, Azerbaijan, Bahrain, Cuba, Egypt, India, Indonesia, Iraq, Kazakhstan, Laos, Malaysia, and Turkey.

In addition, the report contains USCIRF’s recommendations of “entities of particular concern,” or EPCs, a designation created by the 2016 Frank R. Wolf International Religious Freedom Act for non-state actors committing systematic, ongoing, egregious violations. The act defines a non-state actor as “a non-sovereign entity that exercises significant political power and territorial control; is outside the control of a sovereign government; and often employs violence in pursuit of its objectives.” Based on their conduct and control of territory in 2017, USCIRF recommends three groups for designation as EPCs in 2018: the Islamic State of Iraq and Syria (ISIS) in Iraq and Syria; the Taliban in Afghanistan; and al-Shabaab in Somalia.

The Report also contains a series of recommendations to the Administration and to Congress.

Iranian Christians Denied Refugee Status Sue

A class action lawsuit was filed last week on behalf of 87 Christians, Mandaeans, and other persecuted religious minorities from Iran who (through family members in the United States) have applied for refugee status under the Vienna-based Lautenberg-Specter program. The refugee applicants are currently in Vienna. In February 2018 their refugee applications were denied en masse "as a matter of discretion."  The complaint (full text) in Doe v. Nielsen, (ND CA, filed 4/18/2018), contends that:

Defendants’ conduct violates the Administrative Procedure Act because the program changes that resulted in the mass denials constitute final agency actions that were unlawful, including because they were “arbitrary, capricious, an abuse of discretion, or not in accordance with law.”

The Lautenberg Amendment, originally enacted in 1989, made it easier for Jews and Christians from the former Soviet Union to gain admission to the United States as refugees.  In 2004, Congress enacted the Specter Amendment which  added Iranian religious minorities to those eligible for special protection under the Lautenberg Amendment. Since 2004, some 30,000 Iranian religious minorities have been resettled in the United States. Christian Post reports on the lawsuit.

Rabbi Freundel's Voyeurism Sentence Reduced For Good Behavior

According to the District of Columbia Department of Corrections, the prison sentence of Rabbi Barry Freundel has been shortened by more than a year.  Under a plea agreement, in 2015 Freundel was sentenced to six and one-half years in prison on 52 counts of voyeurism.  Freundel had secretly videotaped 150 women in the changing room of the mikveh (ritual bath) at Washington's Kesher Israel Synagogue. (See prior posting.)  JTA reports that the sentence reduction for good behavior was granted because Freundel participated as an instructor in an educational program for inmates.  Freundel's new release date is Aug. 21, 2020.

Judge Rules Pro-Trump Hat Is Not Part of Any Religious Belief

New York Post reports that a New York state trial court judge on Wednesday dismissed a discrimination suit that had been filed by an accountant who was told to leave a West Village bar because he was wearing a pro-Trump "Make America Great Again" cap.  At a hearing, plaintiff's lawyer, when faced with the argument that state and local anti-discrimination laws only protect religious beliefs and not political ones, attempted to turn plaintiff's case into a religious discrimination suit, saying:

The purpose of the hat is that he wore it because he was visiting the 9/11 Memorial.  He was paying spiritual tribute to the victims of 9/11. The Make American Great Again hat was part of his spiritual belief.

After hearing arguments, the judge took a short break and then ruled from the bench:

Plaintiff does not state any faith-based principle to which the hat relates.

District Court Again Dismisses Suit Over Board Positions On Sikh Dharma Entities

In Puri v. Khalsa, (D OR, April 26, 2018), an Oregon federal district court dismissed on ministerial exception and ecclesiastical abstention grounds a suit originally filed in 2010 growing out of disputes following the death of Yogi Bhajan, an important Sikh spiritual leader in the United States.  The widow and three children of Yogi Bhajan claim that they are entitled to board positions in two nonprofit Sikh Dharma entities. In a 2017 decision, the U.S. 9th Circuit Court of Appeals, reviewing  the trial court's dismissal solely on the basis of the pleadings, held that the suit should not have been dismissed on ministerial exception or ecclesiastical abstention grounds. (See prior posting.)  In yesterday's decision, however, the district court, ruling on a summary judgment motion, held that information outside the pleadings now before the court leads to the conclusion that defendants' motion for summary judgment should be granted.

In Bavaria, State Buildings Will Display A Cross

According to Evangelical Focus, in Germany this week the Minister President of the state of Bavaria has ordered every state administration building to hang a Christian cross in the building entrance.   Minister President of Bavaria, Markus Söder says that the cross is "a fundamental symbol of the Christian Western identity" and is an "expression of the spiritual and cultural character of Bavaria."  The order does not apply to municipal and regional district buildings, but they are encouraged to follow the example set by the state government. Opposition political parties in Bavaria criticized the order.

Missouri Supreme Court Hears Oral Arguments On Sexual Orientation and Gender Identity Discrimination

Yesterday, the Missouri Supreme Court heard oral arguments in two cases posing the question of whether the prohibition on "sex" discrimination in the state's civil rights laws includes discrimination on the basis of gender identity or sexual orientation. The first case, R.M.A. v. Blue Springs R-IV School District (audio of full arguments), involves discrimination claims by a middle school student who was born a female but transitioned to male, who has not been allowed by his school to use the boy's rest rooms or locker room.  Because of his female genitalia, the school required him to use a unisex bathroom.

The second case, Lampley v. Missouri Commission on Human Rights (audio of full arguments), Harold Lampley, a state department of social services employee, alleged discrimination and retaliation because he is gay and does not exhibit stereotypical attributes of male appearance and behavior. A second employee alleged discrimination and retaliation because of her association with Lampley.

The Missouri Supreme Court's Docket Summaries page includes more information on the cases and links to briefs (including amicus briefs) filed in each case case [scroll down to SC96683 and SC 96828.  AP reports on the oral arguments.