Oklahoma Legislature Passes 10 Commandments and "Stand Your Ground" In Church Laws

This week, the Oklahoma legislature sent two bills to Gov. Mary Fallin for her signature.  HB 2177 authorizes the display of the Ten Commandments and other historical documents on public property.  The bill (full text) provides in part:

Every county, municipality, city, town, school or any other political subdivision is authorized to display, in its public buildings and on its grounds, replicas of historical documents including, but not limited to, the Ten Commandments, Magna Carta, Mayflower Compact, Declaration of Independence, United States Constitution, Bill of Rights, Oklahoma Constitution and other historically significant documents in the form of statues, monuments, memorials, tablets or any other display that respects the dignity and solemnity of such documents. Such documents shall be displayed in a manner consistent with the context of other documents contained in such display.

In 2015, the Oklahoma Supreme Court held that a Ten Commandments monument on the statehouse grounds violates the Oklahoma Constitution. (See prior posting.)

The legislature also sent the Governor HB2632. The bill (full text) gives Oklahomans the same right in places of worship that they now have in homes and businesses to resist intruders by the use of deadly force. Tulsa World reports on the legislature's actions.

Russian Court Allows Seizure of Jehovah's Witness Property

Newsweek reports that a city court in St. Petersburg, Russia yesterday upheld a Sestroretskiy District Court's ruling allowing the Russian government to seize a $31.8 million Jehovah's Witness real estate complex.  The seizure comes a year after Jehovah's Witnesses were declared an extremist organization by Russia's Supreme Court. (See prior posting.)  In yesterday's ruling, the St. Petersburg court rejected the argument that the group's administrative buildings are owned by Watch Tower Bible and Tract Society based in the United States.

Fair Housing Suit Filed Over Condo Rule Barring Toran

The Philadelphia Inquirer reports on a federal Fair Housing Act religious discrimination lawsuit filed on Wednesday in a Pennsylvania federal district court. Filed by a Hindu condo owner in an upscale high-rise Philadelphia building, the suit challenges a new rule adopted by the condo association which bars resident Akhilesh Tripathi from keeping a toran on his door.  The Hindu toran, made of chains, bells and balls of fabric, and blessed by a Hindu priest, has hung across his door frame since 2009.  The condo association's new rules permit certain religious symbols, particularly mezuzahs, to be attached to door frames, but does not allow Tripathi's toran.  The lawsuit seeks injunctive relief and damages.

Rulemaking Petition Seeks Changes In Eagle Feather Restrictions

Yesterday the Becket Fund for Religious Liberty announced the filing of a formal Rulemaking Petition (full text) with the Department of Interior on behalf of Native American feather dancer Robert Soto.  The petition seeks rule changes that would expand the ability of Native Americans who are not members of federally recognized tribes to use eagle feathers in their religious worship:

The Department’s regulations are so restrictive that they ban all kinds of sincere religious behavior. Today, nearly every bird species native to North America is federally protected.  So, a grandmother who bestows an eagle feather on her nonenrolled grandson to honor his college graduation turns both herself and her grandson into criminals. A Native American teenager adopted by a non-Native family breaks the law when he prays with a feather to reconnect with the spirits of his ancestors. And a member of a state-recognized tribe is subject to prosecution merely for possessing a single protected feather....

Effective reform in this area would do three things: First, it would broaden the Morton Policy to include all sincere religious believers who use federally protected feathers in their religious exercise—as both the Constitution and the Religious Freedom Restoration Act (RFRA) require. Second, it would officially promulgate this policy as a formal rule rather than rely on informal guidance, ending decades of legal limbo that has had disastrous consequences for many Native Americans. Third, it would empower Native American tribes to help combat the illegal commercialization of federally protected feathers.

The petition grows out of the settlement of a suit challenging current rules. (See prior related posting.)

House Chaplain Rescinds His Resignation

CNN reports that yesterday Jesuit priest Pat Conroy rescinded his resignation as Chaplain of the U.S. House of Representatives. The resignation came initially at the request of House Speaker Paul Ryan. (See prior posting.)  A number of House members raised objections to Ryan's action, particularly when it appeared that the request was motivated in part by the desire to have a non-Catholic House Chaplain.  Ryan has accepted Conroy's decision to stay on.

White House Expresses Concern Over Religious Violence In Central African Republic

The White House Press Secretary yesterday released a statement regarding religious violence in the Central African Republic (full text), saying in part:

The United States is extremely concerned about recent attacks against civilian centers, including Tuesday’s attack on a Christian church in the Fatima neighborhood of Bangui and the retaliatory attacks on Muslim community members.  We urge Central African Republic (CAR) government officials to provide safety and security for all of its citizens, regardless of faith.  CAR’s security forces must be professional in the face of ongoing security challenges.

New York Times has coverage of the violence.

White House Marks National Day of Prayer With Executive Order On New Faith Initiative

Yesterday the White House marked National Day of Prayer with a ceremony in the Rose Garden of the White House.  Vice President Pence delivered remarks (full text) followed by a 15-minute address by President Trump (full text) in which he announced that he would be signing a new Executive Order to create a faith initiative at the White House.  Later in the day the President signed an Executive Order on the Establishment of a White House Faith and Opportunity Initiative (full text).  The Executive Order replaces President Obama's Office of Faith-Based and Community Initiatives with an Advisor to the White House Faith and Opportunity Initiative.  The Initiative is to:

 (iii)  make recommendations to the President... regarding changes to policies, programs, and practices that affect the delivery of services by faith-based and community organizations....

(v)    showcase innovative initiatives by faith-based and community organizations that serve and strengthen individuals, families, and communities throughout the United States;

(vi)   notify the Attorney General ... of concerns raised by faith-based and community organizations about any failures of the executive branch to comply with protections of Federal law for religious liberty.... 

(vii)  identify and propose means to reduce... burdens on the exercise of religious convictions and legislative, regulatory, and other barriers to the full and active engagement of faith-based and community organizations in Government-funded or Government-conducted activities and programs.

The White House also issued a Fact Sheet titled President Donald J. Trump Stands Up For Religious Freedom In The United States.  Washington Post reports on these developments.

Today Is National Day of Prayer

Today is National Day of Prayer.  36 USC §119 provides:

The President shall issue each year a proclamation designating the first Thursday in May as a National Day of Prayer on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

According to the private National Day of Prayer Task Force, the theme of this year's observance is Pray for America - UNITY. The Task Force President, Dr. Ronnie Floyd, will host an observance tonight in Statuary Hall in the United States Capitol.

UPDATE: Here is President Trump’s Proclamation.

Iowa Legislature Passes Heartbeat Abortion Bill

As reported by the Washington Post, the Iowa legislature yesterday gave final passage to SF 359 (full text), one of the most restrictive abortion laws in the country. The bill has been sent to Gov. Kim Reynolds for her signature.  The bill prohibits a physician from performing an abortion if a fetal heartbeat is detectable.  Exempted from the prohibition are cases of rape or incest if they were reported to authorities withing specified time periods.  The bill also exempts abortions performed to preserve the life of the pregnant woman whose life is endangered by a physical disorder, illness, or injury, but not if endangered by life-threatening psychological, emotional or familial conditions, or the woman’s age, or "when continuation of the pregnancy will create a serious risk of substantial and irreversible impairment of a major bodily function of the pregnant woman." The bill also prohibits receiving or transferring fetal body parts.  Gov. Reynolds has not said whether she will sign the bill into law.

UPDATE: As reported by AP, he bill was signed by the governor on May 4.

New Jersey Supreme Court Says More Facts Needed To Decide Religious Capital Grants Challenge

In ACLU of New Jersey v. Hendricks, (NJ Sup. Ct., May 2, 2018), the New Jersey Supreme Court refused to decide on the record before it whether a $10.5 million grant to a Yeshiva and a $635,000 grant to a Christian theological Seminary violate the New Jersey Constitution.  The grants were awarded by the Secretary of Higher Education under  a state program designed to subsidize capital improvement projects at institutions of higher learning. The lower court held that the grants violated the Religious Aid Clause of the state constitution that prohibits using tax monies "for the maintenance of any minister or ministry".  However, the Supreme Court said:

Rather than address a matter of constitutional importance on an insufficiently developed record, the better course is to remand the matter for an evidentiary hearing to bring the relevant factual material into better focus. Among the questions to be explored are ... (1) the sectarian nature of these institutions of higher education; (2) whether, in the setting of the curriculum and training programs of these particular institutions, the grant funds will necessarily be used in the “maintenance of any minister or ministry”; and (3) the adequacy of promised restrictions, or other curbs, against sectarian use of the grant proceeds at present and into the future....

Accordingly, we will remand to the Secretary for the development of a record in accordance with this opinion.

Asbury Park Press reports on the decision.

2nd Circuit: Damages Available In Individual Capacity Suits Under RFRA

In Tanvir v. Tanzin, (2d Cir., May 2, 2018), the U.S. 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants.  The Court, reversing the district court and remanding, said in part:

We agree with the Third Circuit’s reasoning in Mack [v. Warden Loretto FCI] and adopt it here. In particular, we reject a strained reading of “appropriate relief” that would be less generous to plaintiffs under RFRA than under implied rights of action, and thus would undermine Congress’s intention to “provide broad religious liberty protections.” Id.  Further, as one district court has pointed out, “[i]t seems unlikely that Congress would restrict the kind of remedies available to plaintiffs who challenge free exercise violations in the same statute it passed to elevate the kind of scrutiny to which such challenges would be entitled.” Jama, 343 F. Supp.2d at 374‐75 (emphasis in original).

Courthouse News Service reports on the decision. [Thanks to Daniel Benson for the lead.]

Canada's House of Commons Calls on Pope and Church To Respond To Residential Schools Settlement

On Tuesday, Canada's House of Commons by a vote of 269-10 called on the Catholic Church and Pope Francis to respond to recommendations in the 2015 Report of Canada's Truth and Reconciliation Commission.  The Commission was created as part of a settlement of lawsuits exposing abuses by the Residential School System which had operated for decades in Canada and had separated Aboriginal children from their families. CTV News reports on this week's action in Parliament:

Among the 94 calls to action by the Truth and Reconciliation Commission was a request for an apology -- to be delivered in Canada by the pontiff himself -- for the church's role in the residential school abuse of First Nations, Inuit and Metis children. An estimated 150,000 of children were forced to attend the schools, many of which were operated by the Roman Catholic Church.

But in March, the Canadian Conference of Catholic Bishops said that while the Pope acknowledged the commission's findings and expressed regret for past wrongs, he "felt he could not personally respond."

The Pope's decision pushed NDP MPs to launch the motion soon after, which also calls on the Catholic Church to pay money owed to residential school survivors and to turn over relevant documentation regarding the government-sponsored schools.

The House of Commons Journals for May 1 sets out the full text of the Motion and details of those voting on it [scroll down].

Israel's Knesset Passes Bill Urging Judges To Use Jewish Law In Absence of Other Precedent

Haaretz [subscription required] reports that Israel's Knesset yesterday, by a vote of 39-32, gave final approval to a controversial bill that recommends, but does not require, judges to decide cases according to principles of Jewish law when there is no other relevant legislation or judicial precedent.  It also continues the provision that is in current law urging judges to also look at "the principles of Jewish heritage."  Bill sponsor MK Nissan Slomiansky (Habayit Hayehudi) explained:

The goal is that if there’s a lacuna in the law, instead of the judge running to look all over the world for compatible legal systems, he should look at Jewish law.  If the judge wants to, he’ll use it, and if not, he’ll use his judgment and do as he sees fit. This isn’t a big revolution and there’s nothing here that ought to scare people.

However, opposition Knesset member Merav Michaeli (Zionist Union) argued:

This is one small step ... on the way to an undemocratic state governed by Jewish law.... In a democratic country, the law is whatever is decided by the people’s representatives, not what a mere minority believes that God has decided.

And Knesset member Dov Khenin (Joint List , a coalition of Arab parties) said:

This bill is part of a creeping, dangerous move. This government has proposed a series of bills whose goal is to change the foundations of the system, to distance the system as much as possible from progressive views of democracy and make it more nationalist, conservative and religious.

Nominations Sought For Law Faculty Law & Religion Scholarship Award

The Association of American Law Schools Section on Law and Religion has issued the following Call for Nominations:

Harold Berman Award for Excellence in Scholarship

The AALS Section on Law and Religion seeks nominations for the Harold Berman Award for Excellence in Scholarship. This annual award recognizes a paper that “has made an outstanding scholarly contribution to the field of law and religion,” in the words of the prize rules. To be eligible, a paper must be published between July 15, 2017 and July 15, 2018. The author must be “a faculty member at an AALS Member School with no more than 10 years’ experience as a faculty member.” Fellows are eligible. Self-nominations are accepted. Nominations should include the name of the author, the title of the paper, a statement of eligibility, and a brief rationale for choosing the paper for the award. Nominations should be sent to Nelson Tebbe at nt277@cornell.edu by August 15, 2018. The winner will receive an award plaque at the AALS annual meeting in January, 2019. The prize committee members are Stephanie Barclay, Thomas C. Berg, Haider Ala Hamoudi, Elizabeth Sepper, and Nelson Tebbe (chair).

Factual Questions Remain On Ecclesiastical Abstention and Ministerial Exception

In Kelley v. Decatur Baptist Church, (ND AL, May 1, 2018), an Alabama federal magistrate judge refused to dismiss a Title VII pregnancy discrimination lawsuit brought by a maintenance and child care employee of a church.  The court held that factual questions exist as to whether the ecclesiastical abstention doctrine applies. Plaintiff claims she was fired because she was pregnant.  Defendant contends she was fired because she engaged in sexual conduct outside of marriage in violation of Biblical standards.  The court also held that factual questions exist as to whether the ministerial exception doctrine applies.  Plaintiff challenged defendant's characterization of her as a minister charged with equipping, training, and evangelizing the next  generation according to biblical standards and morals.

HHS Investigating Legality of Hawaii Notice Requirements For Pregnancy Clinics

An ADF press release on Monday reports that the Office of Civil Rights of the U.S. Department of Health and Human Services has initiated an investigation on behalf of A Place for Women, a limited service pregnancy center in Hawaii.  At issue is the requirement in Hawaii Act 200 enacted last year requiring such centers to disseminate on-site to patients a notice that says in part:

Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women. To apply online for medical insurance coverage, that will cover the full range of family planning and prenatal care services, go to mybenefits.hawaii.gov.

The letter from HHS to ADF, which filed a complaint with it, says in part:

Under federal regulations, OCR is designated to receive complaints based on federal laws that protect conscience and prevent coercion, including the Weldon Amendment, the Coats-Snowe Amendment, and the Church Amendments.  OCR has reviewed the Complaint and has determined that it has sufficient authority and cause to investigate the allegations under one or more of these laws.

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.