Recent Prisoner Free Exercise Cases

In Warner v. Friedman, 2018 U.S. Dist. LEXIS 70564 (ND CA, April 26,2018), a California federal district court allowed a Jewish inmate to move ahead with claims of violation of a settlement agreement reached in his prior litigation regarding a kosher diet.

In Wilkins v. Macomber, 2018 U.S. Dist. LEXIS 70586 (ED CA, April 26, 2018), a California federal magistrate judge dismissed an inmate's complaint regarding access to kosher meals and Jewish religious services, but with an an opportunity to amend his complaint to clarify his allegations as to religious services.

In Long v. California, 2018 U.S. Dist. LEXIS 72460 (ED CA, April 30, 2018), a California federal magistrate judge rejected a civil detainee's claim that anyone who follows Jesus Christ should be allowed to rule over the world, and his request to be released so he can do so. UPDATE: a federal magistrate udge likewise recommended dismissal of an amended complaint at 2018 U.S. Dist. LEXIS 78495 (May 9, 2018).

In Nelson v. Hjorth, 2018 U.S. Dist. LEXIS 73825 (D NE, May 2, 2018), a Nebraska federal district court allowed a pre-trial detainee to move ahead with her complaint that she was denied access to newspaper and magazine subscriptions, but dismissed her complaint that religious and spiritual publications are banned and that inmates attending Protestant Bible study are not allowed to attend Catholic religious services.

In Rafiq v. United States, 2018 U.S. Dist. LEXIS 73771 (WD LA, April 30, 2018), a Louisiana federal magistrate judge gave a Muslim inmate 30 days to amend his complaint to cure pleading deficiencies.  The suit complains of access to clergy, religious classes, congregate worship and Ramadan observance, and of favoritism to Christianity in holiday decorations.

In Smith v. Davis, 2018 U.S. Dist. LEXIS 75567 (D WV, May 4, 2018), a West Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 75795, April 10, 2018), and dismissed a Muslim inmate's complaint that he was not served hot meals on three days during Ramadan.

In Mayo v. Cameron, 2018 U.S. Dist. LEXIS 75822 (WD PA, May 2, 2018), a Pennsylvania federal magistrate judge recommended dismissing a Baptist inmate's complaint that he was not permitted to purchase a Crucifix  because it was identified as a Catholic religious article.

Trump's Faith Initiative Executive Order Has Rescinded Protections For Clients Objecting To Religious Provider

As previously reported, on May 3 President Trump signed an Executive Order on the Establishment of a White House Faith and Opportunity Initiative.  As reported by JTA, buried in that order is repeal of a previous provision that required religious social service providers using federal grant funds to refer a client to an alternative provider if the client objected to the religious character of the original provider.  That referral requirement was added in 2010 by President Obama in Executive Order 13559 which amended Executive Order 13279 (2002).  The most recent change was effected by the following language in Sec. 2(b) of President Trump's recent Executive Order:

Executive Order 13279, as amended, is further amended by striking section 2(h) and redesignating sections 2(i) and 2(j) as sections 2(h) and 2(i), respectively.

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.

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.

6th Circuit Hears Oral Arguments In Challenge To Deportation of Iraqi Chaldeans

Yesterday, the U.S. 6th Circuit Court of Appeals hear oral arguments (audio of full arguments) in Hamama v. Adducci. In the case, a Michigan federal district court issued a preliminary injunction preventing Iraqi nationals (many of whom are Chaldean Christians) subject to long-standing deportation orders from being removed from the United States while they attempt to convince immigration courts that their return will subject them to persecution, torture and possible death.  Subsequently the court also ordered bond hearings for those detained 6 months or longer. The appeals largely raise issues of whether federal district courts have jurisdiction to grant relief here, or whether plaintiffs should have pursued the matter through administrative immigration courts.  AP reports on the 6th Circuit oral arguments

Parents File State Court Suit Alleging Baptism of Their Son Without Their Consent

As previously reported, last October an Ohio federal district court dismissed a suit by parents of a minor child who contended that the mentor assigned by a juvenile court to their son coerced him into being baptized against the wishes of his parents. The court held that the various defendants were not state actors or had judicial immunity. Now the parents have refiled in state court, alleging causes of action that do not require a showing of state action. The complaint (full text) in Defibaugh v. Big Brothers/ Big Sisters of Northeast Ohio Board of Trustees, (OH Com. Pl., filed 4/24/2018), alleges civil assault and battery, intentional infliction of emotional distress, negligent training and supervision of employees and volunteers, and civil conspiracy.  American Atheists issued a press release announcing the filing of the lawsuit.

Transcript and Audio of Arguments in Trump v. Hawaii Now Available

The full transcript and full audio recordings of today's oral arguments before the Supreme Court in Trump v. Hawaii are now available. At issue is the legality of the third version of President Trump's ban on travel to the U.S. by nationals of several countries.  Washington Post, reporting on the arguments, said that the conservative majority on the Court appeared to agree that the President has authority to issue the ban.

Evangelicals Organizing For Mid-Term Elections

A New York Times article posted yesterday reports:

The conservative Christian coalition that helped usher President Trump into power in 2016 is planning its largest midterm election mobilization ever, with volunteers fanning out from the church pews to the streets to register voters, raise money and persuade conservatives that they cannot afford to be complacent this year.

Evangelicals cite a list of Trump's achievements as the basis for their continued support of candidates backing his agenda, despite the controversies surrounding Trump's alleged personal behavior:

He has begun the process of moving the American Embassy in Israel to Jerusalem, won the confirmation of numerous judges and a Supreme Court Justice who seem likely to advance their anti-abortion cause, moved against transgender protections throughout the government, increased the ability of churches to organize politically and personally supported the March for Life.

Supreme Court Will Hear Oral Arguments In Travel Ban Case Today

The U.S. Supreme Court will hear oral arguments this morning in Trump v. Hawaii, a challenge to the legality of the most recent version of President Trump's controversial "travel ban."  As explained by this argument preview from SCOTUSblog, as well as this New York Times preview, one of the major questions that the Court will face is whether Donald Trump's anti-Muslim statements  during his campaign for office, and his Tweets while in office, should be considered in deciding whether his later executive action violates the Establishment Clause. SCOTUS blog's case page has links to the numerous briefs filed in the case, as well as to commentary and other primary source documents.  I will post a link to the transcript of the oral argument when it becomes available later today.

3rd Circuit Allows Religious Group To Intervene In State's Challenge To Trump Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. President United States of America, (3rd Cir., April 24, 2018), the U.S. 3rd Circuit Court of Appeals in a 20-page opinion reversed a Pennsylvania federal district court. The 3rd Circuit allowed Little Sisters of the Poor to intervene to defend Trump Administration interim rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. Becket issued a press release on the decision.

Senate Confirms Religious Liberty Expert For Seat On 5th Circuit

The U.S. Senate yesterday by a vote of 50- 47, confirmed Stuart Kyle Duncan, of Louisiana, to be United States Circuit Judge for the Fifth Circuit. (Senate vote details).  Duncan has an extensive record of research and litigation on church-state and religious liberty issues. (See prior posting.)  In a press release from Becket, where Duncan served as general counsel for two years, the advocacy group's current president said in part:

At Becket, Kyle was a steadfast defender of religious liberty for people of all faiths and was known for his intelligence and evenhandedness. His generosity and respect for others has made him a great advocate, and will make him a fair and respected judge.

UPDATE: In a statement issued April 24, the Human Rights Campaign took a different view of Duncan's record, calling him an "extremist, anti-LGBTQ nominee."

Supreme Court: Foreign Corporations Cannot Be ATS Defendants

The U.S. Supreme Court today on Jesner v. Arab Bank, (Sup. Ct., April 24, 2018), by a vote of 5-4, held that foreign corporations may not be defendants in suits under the Alien Tort Statute.  In the suit, plaintiffs claimed that terrorist attacks abroad had been facilitated by defendant, Arab Bank.  The portion of Justice Kennedy's opinion that commanded the vote of 5 justices said in part:

The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable.... But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals seeking hundreds of millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation regarding a charity in Texas.

Justices Thomas, Alito and Gorsuch each filed a concurring opinion.  Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer and Kagan.  Law.com reports on the decision.

State Department Releases 2017 Country Reports On Human Rights

Last Friday, the U.S. State Department released its 2017 Country Reports on Human Rights Practices. The release was accompanied by remarks from Acting Secretary of State John Sullivan and a press briefing by Michael Kozak, Ambassador, Bureau of Democracy, Human Rights and Labor.  Secretary Sullivan highlighted a special concerns, including the ethnic cleansing of Rohingya in Burma.  In the the report on each individual country, the issue of Religious Freedom is covered by a cross reference to the Department of State’s International Religious Freedom Report for 2016, released in August 2017 (see prior posting).

Falun Gong Is A Religion Under FACE Act

In Zhang v. Chinese Anti-Cult World Alliance, (ED NY, April 23, 2018), a New York federal district court in an 84-page opinion ruled that a group of Falun Gong adherents may proceed on certain of its causes of action against individuals who have engaged in verbal and physical confrontations with plaintiffs.  The court explains:

Adherents of Falun Gong live in the United States. Some are citizens of this country. It is contended by them as plaintiffs that the Chinese Government has conspired with individuals to harm followers and suppress Falun Gong in the United States by organizing and encouraging the Chinese Anti-Cult World Alliance (“CACWA”) and individuals to inflict injuries on those who follow Falun Gong.

Defendants oppose Falun Gong in Flushing, Queens, New York, and elsewhere. They deny that Falun Gong is a religion. Following the position of the Chinese Government, their opposition is based upon characterizing Falun Gong as a “cult” indoctrinating its followers with beliefs that are dangerous, unscientific, and offensive.

One of plaintiffs' claims was brought under the Freedom of Access to Clinic Entrances Act of 1994 which allows a civil action by any person who has suffered physical interference with the exercise of the right of religious freedom at a place of religious worship. The court held that for purposes of this statute, Falun Gong is a "religion":

Expert testimony showed that Falun Gong is at its center concerned with ultimate questions of life and the universe. Dr. Waldron explained his view that Falun Gong is derived from Buddhism and other ancient Chinese religions. There is no genuine dispute for purposes of this case: Falun Gong “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” Int’l Soc. For Krishna Consciousness, 650 F.2d at 440 (2d Cir. 1981). Falun Gong is a religion for purposes of the instant litigation. The jury will be so instructed.

Plaintiffs were also allowed to proceed with claims of assault and battery, and bias related intimidation under the New York Civil Rights Act.  Defendants were allowed to move ahead on civil rights and assault and battery counter-claims growing out of the same incidents. New York Law Journal reports on the decision.

Report Finds Increase In Anti-Muslim Bias Incidents

Yesterday CAIR released its 2018 Civil Rights Report which it titles Targeted (full text). Here is part of the Key Findings section of the report:

Anti-Muslim bias incidents have continued to increase in 2017. Additionally, a greater percentage of these instances have been violent in nature, targeting American children, youth, and families who are Muslim or perceived to be Muslim.

CAIR recorded a 17 percent increase in anti-Muslim bias incidents nationwide in 2017 over 2016.  This was accompanied by a 15 percent increase in hate crimes targeting American Muslims, including children, youth, and families, over the same period.

Of particular alarm is the fact that federal government agencies instigated 35 percent of all anti-Muslim bias incidents recorded in 2017. This represents an almost unprecedented level of government hostility toward a religious minority within the United States, and is counter to the American value of religious freedom.

Following the executive order barring the entry of individuals from several Muslim-majority countries into the U.S., the first version of which was signed on January 27, 2017, CAIR received a deluge of cases. Over the course of the year, CAIR recorded 464 incidents pertaining to the unconstitutional Muslim Ban. That is a staggering 18 percent of the total number of anti-Muslim bias incidents documented in 2017.

European Court Interprets Provision Allowing Churches To Hire On Basis of Religion

In Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, (CJEU, April 17, 2018), the Court of Justice of the European Union in a preliminary ruling by its Grand Chamber interpreted Council Directive 2000/78/EC which bars employment discrimination on the basis of religion or belief.  The Directive creates an exception for existing national practices as to "occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief."  It provides that in such organizations:

a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.

In the request for an interpretation from the German Federal Labor Court, the European Court held that effective judicial review must be available as to whether an occupational requirement that one hold particular religious beliefs is genuine, legitimate and justified.  It went on to define how national courts should interpret the exception:

 Thus the lawfulness ... of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world....

... [T]he church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.

.... As the principle of proportionality is one of the general principles of EU law ..., the national courts must ascertain whether the requirement in question is appropriate and does not go beyond what is necessary for attaining the objective pursued.

Law & Religion UK has more on the decision.

Recent Articles of Interest

From SSRN:

• Antony Kolenc, Religion Lessons from Europe: Intolerant Secularism, Pluralistic Neutrality, and the U.S. Supreme Court, (Pace Law Review, Vol. 30, No. 1, 2017).
• Matthew O. Jackson & Yiqing Xing, The Interaction of Communities, Religion, Governments, and Corruption in the Enforcement of Contracts and Social Norms, (April 1, 2018).
• Nathan S. Chapman, A Reformed Liberalism: Michael McConnell's Contributions to Christian Jurisprudence, (Mark David Hall and Daniel Dresibach, Great Christian Jurists in American History (Cambridge University Press, Forthcoming).
• Asim Jusic, Damned If It Doesn't and Damned If It Does: The European Court's Margin of Appreciation and the Mobilizations Around Religious Symbols, (University of Pennsylvania Journal of International Law, Vol. 39, No. 3, 2018).
• Patrick Murphree, Schools in the Middle: Resolving Schools' Conflicting Duties to Transgender Students and Their Parents, 86 UMKC L. Rev. 405 (2018).
• Michele Goodwin, If Embryos and Fetuses Have Rights, (Law & Ethics of Human Rights, Vol. 11, No, 2, 2017, pp.189-224).
• Claudio Michelon & Amalia Amaya, Introduction to ‘Virtue and Law’ Symposium, (Edinburgh School of Law Research Paper No. 2018/13).
• Robert H. Sitkoff, Fiduciary Principles in Trust Law, (Oxford Handbook of Fiduciary Law, Evan Criddle, Paul Miller, and Robert H. Sitkoff eds., 2018 Forthcoming).

From SSRN (Islamic Law):

• Mohammad Sardoueinasab, Iranian Law, New Era and Transnational Law, (April 20, 2018).
• Ghassan Abdul-Jabbar, The 'Six Books' of Hadith, (November 1, 2017).
• Abdul-Jabbar, Ghassan, The Classical Tradition, (November 1, 2017).

From SmartCILP:

• Religious Rights in a Pluralistic World. Articles by Sahar F. Aziz, Md. Jahid Hossain Bhuiyan, Elena Ervas, Jan Figel?, Tassaduq Hussain Jillani, Faizan Mustafa, Jagteshwar Singh Sohi, Brett G. Scharffs. 2017 BYU Law Review 779-989.
• Gideon Sapir & Mark Goldfeder, Law, Religion, and Immigration: Building Bridges With Express Lanes, 32 Emory International Law Review 201-254 (2018).
• Douglas Laycock. The Wedding-Vendor Cases, 41 Harvard Journal of Law & Public Policy 49-66 (2018).
• William P. Marshall, Extricating the Religious Exemption Debate from the Culture Wars, 41 Harvard Journal of Law & Public Policy 67-77 (2018).
• Marci A. Hamilton, The Cognitive Dissonance of Religious Liberty Discourse: Statutory Rights Masquerading as Constitutional Mandates, 41 Harvard Journal of Law & Public Policy 79-94 (2018).
• Khaled A. Beydoun, Bisecting American Islam? Divide, Conquer, and Counter-Radicalization, 69 Hastings L.J. 429-497 (2018).
• Gijs van Dijck, Victim-Orientated Tort Law in Action: An Empirical Examination of Catholic Church Sexual Abuse Cases, 15 Journal of Empirical Legal Studies 126-164 (2018).

Recent Prisoner Free Exercise Cases

In Merrick v. Ryan, (9th Cir., April 17, 2018), the 9th Circuit affirmed the dismissal of an inmate's free exercise and RLUIPA complaints regarding denial of religious materials and practices, finding that the district court properly relied on lack of sincere religious belief.  It also upheld dismissal of equal protection of establishment clause claims.

In Covington v. Bledsoe County Corrections, 2018 U.S. Dist. LEXIS 63311 (ED TN, April 16, 2018), a Tennessee federal district court allowed a Muslim inmate to move ahead with his complaint that the jail would not allow Muslim inmates to have a feast or allow outside Muslims in to cook or pray for Ramadan.

In Barfell v. Aramark, 2018 U.S. Dist. LEXIS 63582 (ED WI, April 16, 2018), a Wisconsin federal district court allowed an inmate to move ahead with his complaint about a 5-day delay in receiving a religious vegan diet and his claim that religious vegan trays routinely contain animal products. However he was not allowed to proceed with his complaint regarding the quality of the vegan food.

In Slater v. Teague, 2018 U.S. Dist. LEXIS 63263 (D CO, April 12, 2018), a Colorado federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 63605, March 21, 2018) and dismissed a former inmate's complaints regarding availability, timing and preparation of kosher food and his limited access to Jewish religious texts.

In Hearns v. Gonzales, 2018 U.S. Dist. LEXIS 63885 (ED CA, April 13, 2018), a California federal district court, adopting in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 28959, Feb. 22, 2018), allowed an inmate to move ahead with retaliation, free exercise and California Bane Act claims complaining that a correctional officer poured bleach on his legal papers and his prayer rug.

In Sims v. Wegman, 2018 U.S. Dist. LEXIS 64678 (ED CA, April 16, 2018), a California federal magistrate judge recommended dismissing a Nation of Islam inmate's complaint that he was refused an NOI, or alternatively a kosher diet.  Dismissal of one defendant was only because of failure to effect service.

In Johnson v. Roskosci, 2018 U.S. Dist. LEXIS 65405 (MD PA, April 17, 2018), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that beads and necklaces with religious significance were confiscated. UPDATE: The court adopted the magistrate's recommendation at 2018 U.S. Dist. LEXIS 165557, Sept. 26, 2018.

In Fusco v. Cty. of Putnam, 2018 U.S. Dist. LEXIS 65444 (SD NY, April 18, 2018), a New York federal district court allowed an inmate to proceed with his claim that he was prevented from attending Catholic mass during his placement in segregation.

Cert. Denied In Abortion Protester's Case

Last Monday, the U.S. Supreme Court denied review in March v. Mills, (Docket No.17-689, cert. denied 4/16/2018) (Order List).  In the case, the U.S. 1st Circuit Court of Appeals upheld a provision of the Maine Civil Rights Act that prohibits a person making noise that can be heard within a health care facility where the intent is to jeopardize health or interfere with the delivery of health services.  The appeals court rejected a constitutional challenge brought by an abortion protester who is the pastor and co-founder of a church whose mission was described as including "plead[ing] for the lives of the unborn at the doorsteps of abortion facilities." (See prior posting.)  AP reported on the Supreme Court's denial of certiorari. [Thanks to Tom Rutledge for the lead.]

New Study Says Government Services and Religiosity Are Inversely Related

An interesting new study has been published: Miron Zuckerman, Chen Li & Ed Diener, Religion as an Exchange System: The Interchangeability of God and Government in a Provider Role, Personality and Social Psychology Bulletin (SAGE) (April 18, 2018). The Abstract reads:

An exchange model of religion implies that if a secular entity such as government provides what people need, they will be less likely to seek help from supernatural entities. Controlling for quality of life and income inequality (Gini), we found that better government services were related to lower religiosity among countries (Study 1) and states in the United States (Study 2). Study 2 also showed that during 2008-2013, better government services in a specific year predicted lower religiosity 1 to 2 years later. In both studies, a combination of better government services and quality of life was related to a particularly low level of religiosity. Among countries, government services moderated the relation between religiosity and two measures of well-being, such that religiosity was related to greater well-being only when government services were low. We discuss the relation between the exchange model and other theoretical approaches to religion.

Miami Herald reports on the study. For those with academic library privileges, the full text is available in he Sage Journals data base, or readers can request a copy from Research Gate. [Thanks to James Phillips for the lead.]

Settlement Order Entered In Chabad's Dispute With New Jersey Town

After lengthy mediation, a settlement has been reached in a lawsuit filed in 2016 by Chabad Jewish Center of Toms River, New Jersey and Rabbi Moshe Gourarie challenging Toms River's refusal to allow a Chabad Center to operate out of a large home and garage on 8 acres purchased by Gourarie in 2011. (See prior posting.)  An Order reflecting the settlement was entered in February (Chabad Jewish Center of Toms River, Inc. v. Township of Toms River, (D NJ, Feb. 5, 2018), but the settlement is just now being publicized.  As reported by Toms River Patch:

Rabbi Moshe Gourarie will be permitted to continue to hold religious gatherings at the Chabad's Church Road location, with certain stipulations.... Toms River Township must pay $122,500 to cover the Chabad's attorneys' fees, and an investigation by the federal Department of Justice into the township's zoning practices has been dropped.

Among the stipulations in the settlement are a limit of 35 individuals (in addition to family members) for most gatherings at the Center, with that number going up to 49 for six specific holidays each year.

6th Circuit: Ohio's Cutoff of Non-Abortion Funding To Planned Parenthood Is Unconstitutional

In Planned Parenthood of Greater Ohio, Inc. v. Himes, (6th Cir., April 18, 2018), the U.S. 6th Circuit Court of Appeals held unconstitutional a 2016 Ohio law aimed at Planned Parenthood.  ORC §3701.34 prohibits the Ohio Department of Health from channeling funds it receives through six non-abortion-related federal health programs to any entity that performs or promotes nontherapeutic abortions, or which is affiliated with any entity that performs or promotes such abortions.  The appeals court held that the district court correctly applied the unconstitutional conditions doctrine in enjoining enforcement of the law, saying that "the unconstitutional-conditions doctrine is not limited to First Amendment rights."  According to the court, the question posed in this case is

whether Ohio may require a provider to surrender the right to provide safe and lawful abortions on its own “time and dime” as a condition of participating in government programs that have nothing to do with abortion. 

The court concluded:

Although Ohio women do not have a right to the programs, they do have a right not to have their access to important health services curtailed because their major abortion providers opted to protect women’s abortion rights rather than yield to unconstitutional conditions. 

 The court also held that the law imposes unconstitutional conditions on speech by prohibiting funds from going to any entity that promotes abortion:

§3701.034 affects programs that have nothing to do with abortion or family planning, and seeks to impose restrictions on recipients’ speech outside the six government programs the statute funds.

Columbus Dispatch, reporting on the decision, pointed out that two of the three judges handing down the ruling were Republican appointees. It also reports that the state Attorney General's office is reviewing the decision to determine whether it should seek en banc review or appeal to the U.S. Supreme Court. [Thanks to Tom Rutledge and Scott Mange for the lead.]

More Rulings In South Carolina Episcopal Church Split

Earlier this week, a South Carolina federal district court issued another opinion in the long-running battle between competing Episcopal Church factions in South Carolina.  While the underlying dispute over which faction owns church property has been litigated in state court, a federal court suit was filed alleging a false advertising claim under the Lanham Act. Episcopal Bishop Charles von Rosenberg who heads the minority of congregations in South Carolina that remain loyal to The Episcopal Church sued Bishop Mark Lawrence who heads the larger portion of the congregations that in 2012 broke away from the national church. Von Rosenberg alleged that Lawrence engaged in false advertising by asserting that he remained the Bishop of the Diocese.  In vonRosenberg v. Lawrence, (D SC, April 16, 2018), the court allowed plaintiffs to add as defendants the Diocese, parishes and trustee corporation affiliated with Bishop Lawrence.

In a perhaps more interesting second part of the opinion, the court refused to allow the suit to be expanded to assert a novel breach of trust claim.  Last year, the South Carolina Supreme Court decided the property issue largely in favor of those who remained loyal to The Episcopal Church. (See prior posting.)  Plaintiffs sought to add a claim that "the parishes have breached their fiduciary duties by allowing property held in trust for TEC to be used 'in connection with a denomination' other than TEC."  They sought an order against 28 Parishes "to remove from their vestries any persons who cannot demonstrate to this Court's satisfaction that they are capable of and willing to carry out their fiduciary obligations to The Episcopal Church...."  The court held that it is not "free to use trust law entangle itself with religion like a fly in a spider web."  It continued:

Entry of a judicial order telling 28 congregations whom they may or may not elect to their respective parish vestries would foster excessive judicial entanglement with religion....

Of course, there are other ways for TEC to enforce its property rights. For example, TEC could take legal possession of the parish property held in trust for its benefit, rather than asking a federal court to supervise the local congregation's use the property. 

Charleston Regional Business Journal reports on the decision.

New Jersey Supreme Court Says Grants To Churches Violate State Constitution

In Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, (NJ Sup.Ct., April 18, 2018), the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  That clause (Art. I, Sec. 3) provides that no person shall be obliged to pay taxes for building or repairing any church. The court concluded that there is no implied exception to this prohibition for historical preservation.

The Court went on to hold that this interpretation does not violate the Free Exercise Clause of the U.S. Constitution:

The [U.S. Supreme Court's] holding of Trinity Lutheran does not encompass the direct use of taxpayer funds to repair churches and thereby sustain religious worship activities. See 137 S. Ct. at 2024 n.3. We therefore find that the application of the Religious Aid Clause in this case does not violate the Free Exercise Clause.

Justice Solomon filed a concurring opinion:

The majority concludes that the present case exceeds the scope of Trinity Lutheran since Morris County’s taxpayer-funded grants “went toward ‘religious uses.’”... However, that conclusion ignores New Jersey’s separate and substantial government interest at stake in this case -- historical preservation. I believe that had Morris County’s program been applied in a fundamentally neutral manner, the Religious Aid Clause could not bar funding to an otherwise qualified religious institution.

FFRF issued a press release announcing the decision.  Daily Record reports on the decision.

New Video On Being Muslim In U.S.

The Pew Research Center on Religion & Public Life yesterday released an 18-minute video on Being Muslim in the U.S. The video is based on the Center's 2017 survey of U.S. Muslims as well as on personal stories from Muslims across the U.S.

Defendant In Dead Sea Scrolls Debate Avoids Jail

Yeshiva World reports that a long running prosecution of a literature scholar (who is also now a disbarred lawyer) has ended without a jail sentence for the defendant who was charged with online impersonation growing out of an academic dispute over authorship of the Dead Sea Scrolls:

Raphael Golb’s conviction wasn’t quite like any other: using online aliases to discredit his father’s adversary in a scholarly debate over the Dead Sea Scrolls.

The 9-year-old case got a New York law thrown out and finally ended Monday with no jail time for Golb, who persuaded a judge to sentence him to three years’ probation rather than two months in jail.

Appeals had put the jail term on hold and narrowed the counts in his criminal impersonation and forgery conviction in a curious case of ancient religious texts, digital misdeeds, academic rivalries and filial loyalty.

"Obviously, I’m relieved not to be going to jail,” Golb said, adding that he remains concerned by having been prosecuted for online activity he said was meant as satire."

American Pastor Gets Initial Hearing In Turkish Court

According to Al-Monitor, in Turkey a North Carolina pastor finally was able to appear in court after being held in detention for 18 months. Pastor Andrew Craig Brunson, who led a small Protestant congregation in the Turkish city of Izmir, rejected the terrorism and espionage charges against him.  Brunson was among the many arrested after the failed 2016 coup which Turkish officials blame on Fethullah Gulen, who is living in Pennsylvania.  Many believe that the Turkish government wants to exchange Brunson for Gulen.  The court adjourned Brunson's trial until May 7, and ruled that he will continue to be held in solitary confinement. The U.S. Commission on International Religious Freedom issued a statement saying in part:

We are deeply disappointed that Turkish officials today decided to prolong their prosecution and unjust imprisonment of Pastor Andrew Brunson.

Israeli Court Rules "Am Yisrael Chai" Is Patriotic Slogan, Not A Prayer

In Israel, a Jerusalem Magistrate's Court yesterday ruled in favor of right-wing activist Itamar Ben Gvir in his suit for wrongful detention.  The suit grows out of a 2015 incident in which police held him for several hours because of his conduct at the Temple Mount where religious practices are controlled by the Muslim Waqf. As reported by Times of Israel, under current arrangements, Jews are allowed to visit the Temple Mount, but they may not pray there.  While Ben Gvir was touring the site with a Jewish group, a Muslim woman shouted Allahu Akbar at them.  He shouted back"Am Yisrael chai" (the Jewish People Live), at which point Israeli police detained him for violating the no-prayer rule.  The court ruled that the phrase used by Ben Gvir is a patriotic slogan, not a prayer.

No Spousal Privilege When Only Religious Marriage Was Entered

In Springfield, Massachusetts, a state trial court judge has ruled that the ex-wife of Ayyub Abdul-Alim may testify against him in his trial on firearms charges.  As reported by MassLive, the judge held inapplicable here the normal rule that bars a witness from testifying to private conversations with her spouse that occurred during their marriage. The parties were married in an Islamic religious ceremony, but never obtained a state-issued marriage certificate.  The court said:

While the court acknowledges that a marriage between the defendant and Ms. Stewart took place in the religious sense, there is no evidence that this marriage was sanctioned by the state through the fulfillment of the legal requirements.