Supreme Court In Narrow Decision Reverses Order Against Wedding Cake Baker

Today, by a vote of 7-2, the U.S. Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, (Sup. Ct., June 4, 2018), reversed on narrow grounds a Colorado appellate court's decision upholding the state Civil Rights Commission's cease and desist order against a baker who refused on religious grounds to create a wedding cake for a same-sex couple.  The Supreme Court's majority decision, written by Justice Kennedy, focused on what was seen as the unfairness of the hearing provided to the baker by the Commission, and the difference between this case and the approach in others decided by the Commission:

The Court’s precedents make clear that the baker, in his capacity as the owner of a business serving the public, might have his right to the free exercise of religion limited by generally applicable laws. Still, the delicate question of when the free exercise of his religion must yield to an otherwise valid exercise of state power needed to be determined in an adjudication in which religious hostility on the part of the State itself would not be a factor in the balance the State sought to reach. That requirement, however, was not met here. When the Colorado Civil Rights Commission considered this case, it did not do so with the religious neutrality that the Constitution requires.

In reaching that conclusion, the Court acknowledged the difficulties involved in deciding the broader issues posed by the case:

The free speech aspect of this case is difficult, for few persons who have seen a beautiful wedding cake might have thought of its creation as an exercise of protected speech. This is an instructive example, however, of the proposition that the application of constitutional freedoms in new contexts can deepen our understanding of their meaning.

One of the difficulties in this case is that the parties disagree as to the extent of the baker’s refusal to provide service. If a baker refused to design a special cake with words or images celebrating the marriage—for instance, a cake showing words with religious meaning—that might be different from a refusal to sell any cake at all.... 

The same difficulties arise in determining whether a baker has a valid free exercise claim. A baker’s refusal to attend the wedding to ensure that the cake is cut the right way, or a refusal to put certain religious words or decorations on the cake, or even a refusal to sell a cake that has been baked for the public generally but includes certain religious words or symbols on it are just three examples of  possibilities that seem all but endless.

Justice Kagan filed a concurring opinion joined by Justice Breyer.  Justice Gorsuch filed a concurring opinion joined by Justice Alito.  Justice Thomas filed a opinion concurring in part, joined by Justice Gorsuch.

Justice Ginsburg, joined by Justice Sotomayor, filed a dissenting opinion arguing that there was not sufficient evidence of unfair hostility by the Commission to the baker's religious beliefs.

Politico reports on the decision, as does SCOTUSblog.

6th and 7th Circuits Reject Challenge To "In God We Trust" On Currency

The U.S. 6th Circuit Court of Appeals in a 2-1 decision rejected claims by a group of plaintiffs-- atheists, humanists and one Jewish plaintiff-- that statutes requiring placing of the national motto, In God We Trust, on currency violates RFRA, as well as protections of free speech, free exercise and equal protection.  In Doe v. Congress of the United States, (6th Cir., May 29, 2018), the majority said in part:

Plaintiffs’ allegations indicate that at least some legislators who voted to enact the currency statutes intended to promote a Christian monotheistic message. However, intent to promote one religion is not necessarily intent to suppress another; Plaintiffs’ allegations do not show a specific governmental intent to infringe upon, restrict, or suppress other religious beliefs. Plaintiffs argue that the currency statutes nonetheless effect suppression of Atheist beliefs by requiring the Government to constantly spread speech that is akin to “Atheists Are Wrong.” But the incidental effect of suppression is permissible under the Free Exercise Clause absent restrictive intent: The laws must have been “enacted because of, not merely in spite of their suppression.”

Judge Moore, dissenting in part, contended that:

All but four of the plaintiffs have sufficiently pleaded factual allegations demonstrating that the inscription substantially burdens their religion and have thus pleaded a plausible violation of RFRA....

[T]he thirty-nine plaintiffs who allege that they are required to utilize coins and cash on a regular basis have sufficiently alleged that they face an untenable choice between violating their religious beliefs or being excluded “from full participation in the economic life of the Nation,”

In Mayle v. United States, (7th Cir., May 31, 2018), the U.S. 7th Circuit Court of Appeals held that neither the Establishment clause nor RFRA, nor the free speech clause, is violated by the printing the national motto, "In God We Trust", on currency, saying in part:

The inclusion of the motto on currency is similar to other ways in which secular symbols give a nod to the nation’s religious heritage.

In rejecting the claim of plaintiff Kenneth Mayle, an adherent of non-theistic Satanism, the court said in part:

Mayle argues that having the motto printed on currency forces him to choose between using cash, a necessary part of life, and violating his sincerely held religious beliefs. Using the currency makes him feel “guilt, shame and above all else fear,” and those feelings, he contends, qualify as a substantial burden. He likens himself to a fundamentalist Christian baker who would be forced to endorse gay marriage—a practice that violates his religious beliefs—by selling a couple a wedding cake. This term the Supreme Court is considering that baker’s case.... No matter how that case is decided, however, no reasonable person would believe that using currency has religious significance....  [B]ecause using money is not a religious exercise, and the motto has secular as well as religious significance, Mayle has not plausibly alleged that the motto’s placement on currency increases the burden on practicing Satanism.... Mayle’s feelings are not insignificant, but the burden he experiences is not substantial.

FACEA's Protection of Churches Does Not Violate Commerce Clause

In Zhang v. Chinese Anti-Cult World Alliance, (ED NY, May 30, 2018), a New York federal district court held that Congress did not exceed its commerce clause powers in passing the portion of the Freedom of Access to Clinic Entrances Act that protects against interference with access to places of religious worship. the court said in part:

Religion, even when non-profit, is deeply rooted in interstate commerce. It comprises a sizable portion of the United States economy. Houses of religious worship offer numerous valuable services to their congregates, support a large number of personnel, take in and expend considerable funds, own large tracts of land, and receive free municipal services, such as schooling assistance, roads, and police protection. Huge religious educational institutions operating over the internet draw students and billions of dollars in revenue from all over the country. Religion substantially contributes to our gross national product. Congress could reasonably have concluded that violence and intimidation to keep people out of houses of worship would substantially adversely affect interstate commerce. FACEA is constitutional in its design to protect that national commerce.

Courthouse News Service reports on the decision.

City Violated Establishment Clause By Sponsoring Prayer Vigil

In Rojas v. City of Ocala, (MD FL, May 24, 2018), a Florida federal district court held that the City of Ocala, Florida and its police chief violated the Establishment Clause when they organized and promoted a prayer vigil in response to a shooting spree plaguing the city.  The vigil resulted from attempts to involve the faith community in encouraging witnesses to cooperate in investigation of the shootings. the court, however, held that the mayor was not liable merely for failing to intervene to prevent the vigil. Ocala Star Banner reports on the decision.

Iowa Supreme Court Dismisses Negligence, But Not Negligent Supervision, Claims Against Church Elders

In Bandstra v. Covenant Reformed Church, (IA Sup. Ct., filed 6/1/2018), the Iowas Supreme Court held that the 1st Amendment and parallel state constitutional provisions bar negligence claims against elders of the church for their response to disclosure that the church's pastor was having sexual relations with several women he was counseling.  The court said in part:

Following [the pastor's] resignation, the elders sought to help the congregation move forward and heal. The means by which they chose to counsel and advise the congregation is outside the purview of the government. Plaintiffs argue “a reasonable church would seek assistance for parishioners and not label victims ‘adulteresses.’ ” Yet, that is precisely the type of determination that the Religion Clauses prohibit.... A court cannot dictate what teachings and services a church offers its parishioners. Nor can we disapprove of the elders deciding, pursuant to their duty as religious authorities, that the women would be best healed by simply confessing their “sins.”

However the court allowed one of the plaintiffs to move ahead with a negligent supervision claim, holding:

While the decision whether to invite certain speakers, or use certain rhetoric, is protected religious decision-making, reasonable supervision of an employee is a principle of tort law that applies neutrally to all employers. Further, the Church confirmed during oral argument that the Church’s supervision, or lack thereof, was not grounded in any religious doctrine or teachings.

It also held that the trial court properly dismissed a number of defamation claims. [Thanks to Tom Rutledge for the lead.]

Suit Challenges Arkansas Capitol Ten Commandments Monument

Suit was filed last month challenging the constitutionality of a Ten Commandments monument erected on the Arkansas state capitol grounds.  The complaint (full text) in Orsi v. Martin, (ED AR, filed 5/23/2018), alleges that the monument violates the Establishment Clause.  A press release from the American Humanist Association explains:

A similar monument was installed at the state capitol last year, only to be destroyed just hours after it was installed. The individual accused of destroying the display was subsequently found unfit to stand trial. Proponents of the display, led by state senator Jason Rapert, immediately began raising money for a replacement. Senator Rapert has publicly stated, “I am guilty as charged for supporting the Ten Commandments and… take full responsibility for being so bold as to believe that our state and our nation would be better off if people simply honored, followed and adhered to the Ten Commandments given by God Himself to Moses on Mt. Sinai.”  Rapert’s effort reportedly raised $85,000, which will provide a protective barrier around the new display.

NOTE TO READERS: RELIGION CLAUSE WILL BE ON A PUBLICATION BREAK

There will be sporadic or no postings on Religion Clause Blog between May 19 and June 4.  Look for Religion Clause to return with regular postings beginning June 5.

Wisconsin Supreme Court, Splitting Equally, Upholds Protection of Indian Graves

In Wingra Redi-Mix, Inc. v. State Historical Society of Wisconsin, (WI Sup. Ct., May 22, 2018), the Wisconsin Supreme Court  divided equally, 3-3, in a challenge to a concrete company that was seeking a permit to allow it to dig up Indian burial mounds located in its quarry.  The vote has the effect of affirming the appeals court opinion which upheld the State Historical Society's denial of a permit. An AP report has more on the decision and its background.

Michigan Civil Rights Commission Says Existing Law Covers LGBT Discrimination

The Detroit Free Press reports that at its meeting today, the Michigan Civil Rights Commission, by a vote of 5-0-1, agreed to expand its interpretation of the state's Larsen Civil Rights Act to cover discrimination based on sexual orientation or gender identity.  The Commission will treat discrimination on these grounds in employment, education, housing, real estate, public accommodations and public service as violations of the existing law. The Commission will begin accepting complaints reflecting this new interpretation starting tomorrow.  The state attorney general's office, however, takes the position that this kind of expansion of coverage required legislative action.

Australian Appeals Court Upholds Refusal To Allow Testimony From Plaintiff Wearing Niqab

In the Australian state of New South Wales, the Court of Appeal in Elzahed v. State of New South Wales, (NWCA, May 18, 2018), rejected a Muslim woman's contention that she should have been permitted to testify in her civil suit against police officers while her face was fully covered by a niqab.  Plaintiff was suing for assault allegedly occurring during the execution of a search warrant. The court said in part:

There was no error in the primary judge’s ruling that the appellant could not give evidence with her face covered by a niqab. The appellant was a party in the case, not merely a witness. The appellant’s evidence was strongly contentious. The resolution of the case would require the primary judge to make findings about whether to accept the appellant’s evidence or the conflicting evidence of the NSW police officers. Viewing the appellant’s face while she was giving her evidence was capable of affecting the resolution of that conflict. The primary judge did not err in concluding that fairness to all parties required her to reject the appellant’s application.

The appeals court pointed out that plaintiff had not asked the trial judge for alternative arrangements such as testifying from behind a screen so that her face would be visible only to to some of the people in the courtroom. Reporting on the decision, Australian Associated Press  adds this background information:

Moutia Elzahed, who's married to jailed Islamic State extremist Hamdi Alqudsi, tried unsuccessfully to sue the state and federal governments over claims of police violence during a 2014 raid on their Sydney home....

Judge Audrey Balla in mid-2017 ordered Elzahed pay $250,000 in costs to the commonwealth and state governments responsible for the federal and state police officers involved in the 2014 raid.

In early May, Elzahed became the first person in NSW to be found guilty of refusing to stand for a judge in court after insisting she only stood for Allah when she appeared before Judge Balla.

England's Chief Coroner Gives Guidance On Rapid Release of Bodies For Religious Reasons

As previously reported, in England last month a 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. Such requests are often made by Jewish and Muslim families whose beliefs call for burial quickly after death.  (See prior posting.)  Yesterday, the Chief Coroner of England and Wales issued Guidance No. 28 (full text), designed to give practical guidance to local coroners when expedited release is requested for religious or other reasons.  The Guidance reads in part:

14. The judgment in the AYBS Case reflects two important legal considerations: (i) that a coroner should be open to representations that a particular case should be treated as a matter of urgency (whether for religious or other reasons); and (ii) that proper respect should be given to representations based on religious belief.

15. However, the decision of the Court does not require a coroner to give automatic priority to deaths from particular religious communities, nor does it require coroners to drop other important work to deal with such deaths. The Court also recognised that other deaths may require urgent handling for non-religious reasons.

16. There is no obligation for coroners to adopt formal written policies for dealing with requests for expedition or for dealing with deaths from faith communities.... However, any policy or practices adopted by coroners must be sufficiently flexible to allow them to give due consideration to expediting decisions where there is good reason to do so. They should seek to strike a fair balance between the interests of those with a well-founded request for expedition (including on religious grounds) and other families who may be affected.

Jewish Chronicle reports on the new Guidance document.

11th Circuit Hears Arguments In Challenge To Cross In City Park

On Wednesday, the U.S. 11th Circuit Court of Appeals heard oral arguments in  Kondrat'yev v. City of Pensacola, Florida.  (Audio of full oral arguments).  In the case, a reluctant Florida federal district court judge held that a 34-foot concrete Latin Cross that has stood in a city park for decades violates the Establishment Clause. (See prior posting.)  Pensacola News Journal reports on the oral arguments.

Catholic Social Services Sues Philadelphia Over End To Foster Care Referrals

A suit was filed in a Pennsylvania federal district court this week by Philadelphia Catholic Social Services and two of its clients challenging action taken by the city of Philadelphia to stop foster care referrals to the agency.  The city took the action because of CSS's policy against placing foster children with same-sex couples.  The complaint (full text) in Fulton v. City of Philadelphia, (ED PA, filed 5/16/2018), alleges in part:

Catholic Social Services remains willing and able to continue its ministry serving children in Philadelphia. It wants to help alleviate the foster care crisis in Philadelphia, and it has not and will not prevent any qualified family from becoming a foster parent, be it through Catholic Social Services or a referral to another agency. But because of the City’s actions, Catholic Social Services is unable to place foster children with families. Its 100-year-old ministry to at-risk children is in jeopardy.

The complaint alleges violation of Pennsylvania's Religious Freedom Protection Act, the 1st and 14th Amendments. Pennsylvania constitutional provisions, the Philadelphia city charter and breach of contract. Becket Fund issued a press release announcing the filing of the lawsuit.

President's Ramadan Message

On May 15, as Ramadan was about to begin, President Trump issued a Presidential Message (full text) sending greetings and best wishes to Muslims in the U.S. and around the world.  He said in part:

Ramadan reminds us of the richness Muslims add to the religious tapestry of American life.  In the United States, we are all blessed to live under a Constitution that fosters religious liberty and respects religious practice.  Our Constitution ensures Muslims can observe Ramadan in accordance with the dictates of conscience and unimpeded by government.  By doing so, the Constitution also furnishes varied opportunities for all Americans to deepen their understanding of the human soul.

As so many people unite to celebrate Ramadan, Melania and I join in the hope for a blessed month.  Ramadan Mubarak.

Injunction Entered Against Obama-Era Contraceptive Mandate

The Trump administration continues to concede that the Obama Administration's version of the contraceptive coverage mandate as applied to religious non-profits violates the Religious Freedom Restoration Act.  This week, in Southern Nazarene University v. Azar, (WD OK, My 15, 2018), an Oklahoma federal district court, without objection from defendants, enjoined enforcement of the mandate against four Christian universities.  The College Fix reports on the decision.

Suit Filed By Muslim Woman Forced To Remove Hijab For Courthouse Security Inspection

A lawsuit was filed this week in an Oklahoma federal district court challenging the manner in which courthouse security guards dealt with a Muslim woman's objections to removing her hijab after she set off a metal detector.  The complaint (full text) in Elqutt v. Regalado, (ND OK, filed 5/15/2018), alleges that the objectionable conduct occurred when Shusha Elqutt entered the Tulsa County Courthouse with her attorney from the Domestic Violence Intervention Services finalize her divorce.  Wanding continued to detect metal under Elqutt's hijab.  Authorities refused to allow Elqutt to remove her head covering in private in the presence only of a female deputy.  Eventually security officials allowed Elqutt to go between two parked cars in the parking lot and have two female deputies inspect her there.  Plaintiff contends that this still violated her free exercise rights, arguing:

With only two parked cars for coverage, Ms. Elqutt was forced to crouch down to obtain even the slightest amount of privacy. At any moment, a man could have walked by and seen Ms. Elqutt without her hijab, a fact not lost on her as she squatted, exposed and humiliated, in the middle of the courthouse parking lot.

Oklahoma ACLU issued a press release announcing the filing of the lawsuit.

Doctor Says His Free Exercise Rights Are Infringed By Blocking Him From Assisting Protester

An unusual religious free exercise lawsuit was filed in a Virginia federal district court yesterday by Greg Gelburd, a physician who says that he continually practices his religious belief of providing medical assistance to those in need.  The complaint (full text) in Gelburd v. Christiansen, (WD VA, filed 6/16/2018), contends that the U.S. Forest Service is preventing him from providing medical assistance to a "tree sitting" protester who is attempting to block a pipeline from being constructed in the George Washington and Jefferson National Forest.  The protester, a woman who has become known as "Nutty", has, for the past six weeks, been preventing pipeline construction by occupying a "monopad" atop a tall pole in the pipeline path. Forest Service employees are attempting to end Nutty's protest by denying her food, water, various services and the ability to communicate with others. Dr. Gelburd claims that his rights under the Religious Freedom Restoration Act and the First Amendment's religion and speech clauses are infringed by the government's actions.  The Rutherford Institute issued a press release announcing the filing of the lawsuit.

Two Appointments Made To USCIRF

The U.S. Commission on International Religious Freedom yesterday announced two appointments to the Commission.  On May 10, House Minority Leader Nancy Pelosi reappointed Dr. Tenzin Dorjee, who had been initially appointed to USCIRF in December 2016.  Dorjee, a Professor in Human Communications Studies at California State University, Fullerton, is also an expert on Tibetan culture.

It was also announced that on May 14, Senate Majority Leader Mitch McConnell appointed Tony Perkins as a Commissioner. Perkins has served as President of the Family Research Council since 2003.  Before that he served in the Louisiana legislature.  A post at Friendly Atheist Blog strongly criticizes Perkins' appointment.

British Court Sentences Former Army Officer Over Anti-Semitic Speech

From England, The Independent reported yesterday that right-wing activist  Jeremy Bedford-Turner was sentenced by the Southwark Crown Court to one year in jail after a jury convicted him of stirring up racial hatred in violation of the Public Order Act1986.  The charges stem from a 15-minute long virulently anti-Semitic speech that Bedford-Turner gave in July 2015 in central London.  The speech, opposing the Shomrim Jewish civilian patrol group, called for Britains to "free England from Jewish control."  Bedford-Turner, who previously served 12 years in the British army, was given a standing ovation by 35 of his supporters in the court room after he was sentenced. Britain's Campaign Against Anti-Semitism (CAA) has criticized the Crown Prosecution Service for its initial decision not to prosecute Bedford-Turner, a decision reversed only after CAA challenged the decision in court.

Native Americans Sue To Keep Use of Prayer Ground

On Monday, a suit was filed in New Jersey federal district court on behalf of the Native American Ramapough Lenape Nation claiming that local officials along with a neighboring housing association are attempting to prevent the Ramapoughs from using their own prayer ground for religious activities. (See prior related posting.)  The complaint (full text) in Ramapough Mountain Indians, Inc. v. Township of Mahwah, (D NJ, filed 5/14/2018), alleges in part:

Defendant Township of Mahwah is imposing cumulative crippling fines against plaintiff Ramapough of $12,500 per day, totalling $480,000 as of May 14, 2018, to end religious use of property, to eliminate sacred sites, and prevent assembly.

...  By letter dated September 5, 2017 Mahwah sent a letter purporting to revoke a 2012 zoning permit that it failed to disclose to Ramapough or State Courts recognizing religious use and logs with masks carved in them ... unilaterally and secretly without notice nor opportunity to be heard.

... Defendant Polo Club, in furtherance of this campaign to pressure the Ramapough Nation into ceasing its religious practices, to assemble and in fact to yield up the land, has made numerous unfounded complaints to the police department and used the New Jersey municipal "private warrant" process to bring criminal charges against Ramapough members.

Plaintiffs claim that these actions violate their 1st and 14th Amendment rights, RLUIPA and international treaties.  Courthouse News Service reports on the lawsuit.