Canada's Supreme Court: Provinces Can Refuse Law School Accreditation Over LGBTQ Rights

In a pair of decisions today, the Supreme Court of Canada held that the bodies controlling the legal profession in British Columbia and Ontario can, without violating Canada's Charter of Rights and Freedoms, refuse to accredit Trinity Western University's proposed new law school.  At issue in Law Society of British Columbia v. Trinity Western University and in Trinity Western University v. Law Society of Upper Canada, (Sup. Ct. Canada, June 15, 2018), is the requirement by Trinity Western, an evangelical Christian university, that its students and faculty abide by a religiously-based code of conduct.  The so-called Community Covenant Agreement prohibits "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In 7-2 decisions, the court concluded that the decision to refuse accreditation significantly advances the objective of maintaining equal access to and diversity in the legal profession and prevents the risk of significant harm to LGBTQ people.  In British Columbia decision, the court added:

The public confidence in the administration of justice could be undermined by the LSBC’s decision to approve a law school that forces some to deny a crucial component of their identity in the most  private and personal of spaces for three years in order to receive a legal education.

In the Ontario decision, the court said in part:

The LSUC’s decision means that TWU’s community members cannot impose those religious beliefs on fellow law students, since they have an inequitable impact and can cause significant harm. The LSUC chose an interpretation of the public interest which mandates access to law schools based on merit and diversity, rather than exclusionary religious practices.

CBC News reports on the decision.

Court Enforces Document Subpoena Against Texas Catholic Bishops

Last year a suit was filed in Texas federal district court challenging the constitutionality of a Texas law that requires health providers to bury or cremate fetal remains after an abortion. (See prior related posting.) A preliminary injunction against enforcement of the law was issued in January.  Now, as the case moves toward trial, a federal district court has rejected a motion filed by the Texas Catholic Conference of Bishops attempting to quash a subpoena for documents.  In Whole Woman's Health v. Smith, (WD TX, June 13, 2018), the court rejected a free exercise challenge to a subpoena for e-mails relating to burial, cremation, or disposition of fetal or embryonic tissue.  The court said in part:

The documents requested do not address religious doctrine or church governance, but instead relate directly to a factual issue that will be central at trial: precisely what burial services are available, and will remain available, to abortion providers in Texas. That the primary organization presently offering to make those services available is a church does not make the relevant facts immune from discovery....

...  [E]ven if there would be some chilling effect on the members of the TCCB if the subpoenaed documents are produced—and that is doubtful—the Plaintiffs’ interest in obtaining the documents is sufficient to outweigh any such impact.

Settlement Reached In Muslim Women's Suit Against California Restaurant

A settlement agreement (full text) was reached yesterday in a lawsuit filed in May 2016 (see prior posting) by 7 Muslim women against a Laguna Beach, California restaurant.  The women claimed they were singled out because they were Muslim and were told to leave for overstaying the restaurant's 45-minute rule. The settlement is described in an ACLU press release:

Seven Muslim women ejected from an Urth Caffe restaurant by its management have obtained a settlement agreement requiring the restaurant chain to hold diversity trainings for its employees and update its policies....

Urth Caffe has also agreed, under the settlement, to clarify its seating policy to ensure it is applied consistently to all customers and to include in its employee handbook a requirement that customer diversity be respected.

The restaurant chain also agreed to open its Laguna Beach location all day on June 16 with free drinks and desserts for all customers in a public celebration of Eid al-Fitr, the end of the Muslim holy month of Ramadan.

Sessions Responds To Church Leaders' Criticism of Immigration Policy

As reported by NBC News, Attorney General Jeff Sessions yesterday in a speech to law enforcement officers in Ft. Wayne, Indiana (full text) responded to criticism from Christian evangelical groups of the Administration's policy of separating parents from children in arresting those crossing the border illegally.  Sessions said in part:

Let me take an aside to discuss concerns raised by our church friends about separating families. Many of the criticisms raised in recent days are not fair or logical and some are contrary to law.

First- illegal entry into the United States is a crime—as it should be. Persons who violate the law of our nation are subject to prosecution. I would cite you to the Apostle Paul and his clear and wise command in Romans 13, to obey the laws of the government because God has ordained them for the purpose of order....

Please note, Church friends, that if the adults go to one of our many ports of entry to claim asylum, they are not prosecuted and the family stays intact pending the legal process.

The problem is that it became well known that adults with children were not being prosecuted for unlawful entry and the numbers surged from 15,000 in 2013 to 75,000 four years later....

My request to these religious leaders who have criticized the carrying out of our laws to also speak up strongly to urge anyone who would come here to apply lawfully, to wait their turn, and not violate the law.

Suit Challenges Local Bans On Conversion Therapy For Minors

A suit was filed this week in a Florida federal district court challenging the constitutionality of ordinances enacted by the city of Boca Raton and by Palm Beach county which prohibit licensed counselors from practicing conversion therapy on minors.  The complaint (full text) in Otto v. City of Boca Raton, Florida, (SD FL, filed 6/13/2018), filed on behalf of counselors and their patients, contends that the ordinances violate speech and religious exercise rights under the federal and state constitutions, as well as state statutory protection of religious exercise and other state statutory provisions. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Suit Alleges Viewpoint Discrimination In Distribution of Student Activity Fees

A suit was filed yesterday against officials at Ball State University by "Students for Life at BSU" alleging, among other things, viewpoint discrimination in distribution of student activity fees.  The complaint (full text) in Students for Life at Ball State University v. Hall, (SD IN, June 13, 2018), alleges that the pro-life student group's request for $300 from student activity fees was denied, apparently under the Guideline excluding from funding "[a]ny Organization which engages in activities, advocacy, or speech in order to advance a particular political interest, religion, religious faith, or ideology."  The suit alleges that the refusal violates plaintiffs' 1st and 14th Amendment rights.  ADF issued a press release announcing the filing of the lawsuit.

Pence Addresses Southern Baptist Convention Annual Meeting

Vice President Mike Pence yesterday delivered a 35-minute address (full text) at the Southern Baptist Convention Annual Meeting in Dallas, Texas.  He said in part:

... 40 years ago this spring, I heard the very message that Southern Baptists speak so faithfully across this nation every day ...that “God so loved the world, that He gave his only begotten Son, that whosoever might believe in Him would not perish, but have everlasting life.”  And I walked the sawdust trail that night in 1978, and gave my life to Jesus Christ, and it’s made all the difference....

So thank you for carrying that timeless message everyday with such faithfulness to the American people.  The truth is, Southern Baptists have always worked to bring about renewal of America, and new beginnings.  And as I stand before you today, I believe that our nation is in the midst of a time of renewal.  And we are in the midst of a new beginning of greatness in America.

CNN reported that some in attendance "were disturbed by the overtly political tone" of much of the rest of Pence's remarks, adding:

many Southern Baptists, particularly people of color and younger members, were put off by the decision to allow Pence a platform at what's supposed to be a nonpolitical event.

Another Permanent Injunction Against Contraceptive Mandate For Religious Colleges

In yet another in a line of cases, the Trump Administration has conceded that applying the Obama-era contraceptive mandate rules to religious non-profits would violate RFRA.  This time in Dordt College v. Azar, (ND IA, June 12, 2018), an Iowa federal district court issued a permanent injunction against enforcing the rules against Dordt College and Cornerstone University to the extent that doing so would violate their religious consciences.  This specifically includes services that the schools view as abortion, abortifacients, embryo-harming pharmaceuticals, and related education and counseling.  Detroit Free Press reports on the decision. Cornerstone University is in Michigan, while Dordt College is located in Iowa.

DOJ Announces New Initiative To Protect Relocation For Religious Institutions

In a press release yesterday, the Department of Justice announced a new Place To Worship Initiative:

[The Initiative] will focus on protecting the ability of houses of worship and other religious institutions to build, expand, buy, or rent facilities....

The Department will work with the United States Attorney’s Offices to strengthen awareness of the land use provisions of RLUIPA by: hosting community outreach events across the country, educating municipal officials and religious organizations about RLUIPA’s requirements, and providing additional training and resources for federal prosecutors.

Along with launching the Initiative, DOJ also announced that it has filed a RLUIPA lawsuit against Borough of Woodcliff Lake, New Jersey.  The complaint (full text) in United States v. Borough of Woodcliff Lake, (D NJ, filed 6/13/2018), contends that the town imposed a substantial burden on a Chabad synagogue when it denied it a variance to allow it to expand on its current site.  The expansion plans were developed after attempts to acquire other sites were frustrated by the Borough.  New York Post reports on the lawsuit.

New USCIRF Chair Is Tibetan Buddhist

The U.S. Commission on International Religious Freedom announced that yesterday it elected Dr. Tenzin Dorjee, a Tibetan Buddhist, as its Chair, and Kristina Arriaga and Gayle Manchin as Vice-Chairs.  Dorjee is Associate Professor of Human Communication Studies at California State University, Fullerton. He has served as translator for the Dalai Lama.

Jewish Worshipers In Nigeria Arrested; Most Later Released On Bail

The Oracle reports that in Nigeria, nine Jewish worshipers were arrested on May 13 on charges of terrorism.  Eight of the nine were released on bail on Monday.  The ninth was still held because his file had disappeared. The arrests occurred while the nine were praying at the country home of Biafran separatist leader Nnamdi Kanu who considers himself Jewish.  Defendants' lawyer accuses the state of religious persecution, and says that anyone identifying with Kanu has become the target of Nigerian security forces.

Court Says Tribe Has Standing, But Did Not Prove Its RFRA Claim

As previously reported, in March an Oregon federal magistrate judge recommended dismissing a RFRA challenge to the destruction of sacred Native American burial grounds.  In reviewing the magistrate's recommendation, the district court in Slockish v. U.S. Federal Highway Administration, (D OR, June 11, 2018) held, disagreeing with the magistrate judge, that plaintiffs have standing to bring the challenge.  However the court still held that the RFRA claim should be dismissed because plaintiffs had not established a prima facie case of a substantial burden on their religious exercise.  Reporting on the decision, KUOW News says that members of the Confederated Tribes and Bands of the Yakama Nation and members of the Confederated Tribes of Grand Ronde will appeal to the 9th Circuit.

Permanent Injunction Issued In Ethics Battle By Alabama Justice

As previously reported, in March an Alabama federal district court issued a preliminary injunction, holding that provisions in the Alabama Canons of Judicial Ethics that were invoked against Alabama Supreme Court Justice Tom Parker are unconstitutional.  At issue was a ethics complaint over comments by Parker about the impact of the U.S. Supreme Court's Obergefell decision on an earlier Alabama Supreme Court order barring probate judges from issuing licenses for same-sex marriages.  Now the parties have agreed on the scope of a permanent injunction, and this week in Parker v. Judicial Inquiry Commission of the State of Alabama, (MD AL, June 11, 2018), the court issued an opinion and the consent injunction, barring the state Judicial Inquiry Commission from enforcing Canons 1, 2A and 3A(6):

to proscribe or punish any public comment by a judge unless the public comment can reasonably be expected to affect the outcome or impair the fairness of a proceeding pending or impending in any court. Public discussion by judges or judicial candidates of an issue of public importance cannot be proscribed or punished ... merely because that issue may happen to be the subject of a pending or impending proceeding in any court.

Liberty Counsel issued a press release on the court's action.

Church Sues, Surprised By Zoning Law Change

A suit was filed last week in a North Carolina federal district court by a small church challenging the zoning regulations that prevent it from using space it rented and renovated for worship services.  The complaint (full text) in At the Cross Fellowship Baptist Church Inc v. City of Monroe, North Carolina, (WD NC, filed 6/4/2018), recounts that the church leased the space after being assured by the landlord that another church had operated there in the recent past.  However, unknown to the church, an amended zoning law had been enacted in the interim which did not include churches as a permitted use there. The complaint alleges that the zoning ordinance violates its rights under RLUIPA and under the 1st and 14th Amendments.  ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Review In Two Church Property Cases

Today the U.S. Supreme Court denied review in two unrelated cases involving disputes over church property after the break away of a congregation from its parent body..  It denied certiorari in Presbytery of the Twin Cities Area v. Eden Prairie Presbyterian Church, Inc., (Docket No. 17-582, cert. denied 6/11/2018) (Order List).  In the case, the Minnesota Court of Appeals held that it was proper to apply the "neutral principles of law" approach, rather than applying the ecclesiastical abstention doctrine, to decide ownership of property of a congregation which had disaffiliated from the Presbyterian Church USA. (See prior posting).

The court also denied certiorari in Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (Docket No. 17-1136, cert. denied 6/11/2018) (Order List).  In the case, the 5-member South Carolina Supreme Court in 5 separate opinions resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. (See prior posting.)

Vice President Concerned About Aid To Iraqi Christians and Yazidis

Vice President Mike Pence issued a statement (full text) on Friday on promised U.S. aid to Iraq's Christian and Yazidi communities, saying in part:

To save what remains of these ancient and proud peoples, President Trump directed the United States government to stop using slow, ineffective and wasteful United Nations programs and to instead distribute assistance through USAID.... 

While progress has been made to help these beleaguered people, there is more to do to fulfill the commitments made to them and not to mention – our own consciences.

The Vice President will not tolerate bureaucratic delays in implementing the Administration’s vision to deliver the assistance we promised to the people we pledged to help.

The Vice President directed USAID Administrator Mark Green to travel to Iraq in the coming weeks to report back with an immediate comprehensive assessment...

Recent Articles and Book of Interest

From SSRN:

• Kenneth Einar Himma, An Unjust Dogma: Why a Special Right to Religion Wrongly Discriminates Against Non-Religious Worldviews, (San Diego Law Review, Vol. 54, No. 1, 2017).
• Caroline Mala Corbin, Is There Any Silver Lining to Trinity Lutheran Church, Inc. v. Comer?, (Michigan Law Review Online, Vol. 116, p. 137, 2018).
• Richard W. Garnett & Jackson C. Blais, Religious Freedom and Recycled Tires: The Meaning and Implications of Trinity Lutheran, (2016-17 Cato Supreme Court Review 105).
• Richard W. Garnett, Freedom 'for' Religion: (Yet) Another View of the Cathedral, (in Brett G. Scharffs, Asher Maoz, and Ashley Isaacson Woolley, eds., Religious Freedom and the Law: Emerging Contexts for Freedom for and Freedom From Religion (Routledge 2019 Forthcoming)).
• Nadia N. Sawicki, Disentangling Conscience Protections, (Hastings Center Report, Forthcoming).
• Richard W. Garnett, "Afterword," (in S. Hendrianto, S.J., ed., Priests, Lawyers, and Scholars: Essays in Honor of Robert J. Araujo, S.J." (Franciscan Univ. Press 2017)).
• Barry W. Bussey, The Right of Religious Hospitals to Refuse Physician-Assisted Suicide, ((2018) 85 S.C.L.R. (2d)).
• Netta Barak Corren, The War Within, (May 23, 2018).
• B. Jessie Hill, Sex, Lies, and Ultrasound, (89 University of Colorado Law Review 421 (2018)).
• Reva Siegel & Linda Greenhouse, The Unfinished Story of Roe v. Wade, (Yale Law School, Public Law Research Paper (2018)).
• Kevin M. Barry & Jennifer Levi, Blatt v. Cabela's Retail, Inc. and a New Path for Transgender Rights, (Yale Law Journal Forum, Vol. 127, p. 373, 2017).
• Albertina Antognini, Against Nonmarital Exceptionalism, (UC Davis Law Review, Vol. 51, 2018 (Forthcoming)).

From SSRN (Islamic law):

• Kerstin Steiner, Branding Islam: Islam, Law and Bureaucracies in Southeast Asia, (37(1) Current Journal of Southeast Asian Affairs (2018)).
• Dominik Müller & Kerstub Steiner, The Bureaucratisation of Islam in Southeast Asia: Transdisciplinary Perspectives,  (37 (1) Journal of Current Southeast Asian Affairs (2018)).
• Haider Ala Hamoudi & Mark Cammack, Islamic Law in Modern Courts (Introduction), (Aspen Casebook Series, 2018).

From SmartCILP and elsewhere:

• Valerie J. Munson, On Holy Ground: Church Sanctuary in the Trump Era, 47 Southwestern Law Review 49-60 (2017).
• Ian P. Farrell. Book Review. From Premodern Christianity to the Postmodern Jury. 53 Tulsa L. Rev. 247-259 (2018). 
• Jason E. Whitehead, Book Review. Faith, Reason, and Liberal Legal Neutrality, 53 Tulsa Law Review 375-393 (2018).
• Robert E. Rains, Icing on the Wedding Cake: Same-sex Marriage and Religious Objections--Is There an Accommodation That Will Make Everyone Equally Happy (Or Unhappy)?, 42 Vermont Law Review 191-225 (2017).
• Elise Goss-Alexander, Policy Focus: Women and Religious Freedom, (USCIRF, May 2018).

Recent Book:

• Mohammad Hashas, Jan Jaap de Ruiter & Niels Valdemar Vinding (eds), Imams in Western Europe: Developments, Transformations, and Institutional Challenges, (Amsterdam University Press, May 2018).

Recent Prisoner Free Exercise Cases

In Harris v. Escamilla, (9th Cir., May 24, 2018), the 9th Circuit allowed a Muslim inmate to move ahead with claims that a correctional officer intentionally desecrated his Koran.

In Broyles v. Marks, 2018 U.S. Dist. LEXIS 85486 (D KA, May 22, 2018), a Kansas federal district court dismissed an inmate's complaint that there was no variety in the kosher meals served to him.

In Adams-Bey v. Rogers, 2018 U.S. Dist. LEXIS 85754 (WD NC, May 17, 2018), a North Carolina federal district court dismissed an inmate's claim of religious discrimination. Plaintiff alleged discrimination against him for being a "Moorish-American" by seizing legal petitions.

In Murphy v. Scott, 2018 U.S. Dist. LEXIS 85907 (ED TX, May 22, 2018), a Texas federal magistrate judge dismissed a Jewish inmate's complaint that he did not receive meat-free bag meals when his unit was on lock down.

In White v. Lee, 2018 U.S. Dist. LEXIS 87067 (D SC, May 24, 2018), a South Carolina federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 87398, April 16, 2018), and dismissed without prejudice an inmate's claim of confiscation of his religious material.

In Martinez v. Arizona Department of Corrections, 2018 U.S. Dist. LEXIS 87418 (D AZ, May 23, 2018), an Arizona federal district court dismissed a Native American inmate's complaint that his medicine bag with feathers attached was missing after a search of his cell.

In Scott v. Uhler, 2018 U.S. Dist. LEXIS 88233 (ND NY, May 24, 2018), a New York federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with an equal protection challenge to the cancellation of Jumm'ah services on Christmas day.

In Kelly v. Montgomery, 2018 U.S. Dist. LEXIS 88522 (SD CA, May 24, 2018), a California federal magistrate judge recommended that an inmate be allowed to move ahead with his challenge to the denial of his request to change his name to that of his step-father to honor the religious requirement to honor his father.

In Bullock v. Cohen, 2018 U.S. Dist. LEXIS 88708 (D NJ, May 29, 2018), a New Jersey federal district court dismissed without prejudice an inmate's complaint that there is no designated place to assemble for religious services.

In Muhammad v. Wheeler, 2018 U.S. Dist. LEXIS 89295 (ED AR, May 29, 2018), an Arkansas federal district court denied a stay pending appeal in a case in which it had held that authorities must provide a Muslim inmate with halal meals, including a once per day serving of meat. It issued an injunction requiring fish 3 or 4 times per week, and chicken, turkey or beef the remainder of the times.

Austria Closes 7 Mosques, Targets Up To 60 Foreign-Funded Imams

CNN  and the New York Times report that yesterday Austria's Chancellor Sebastian Kurz for the first time invoked the country's 2015 Islam Law (full text) (summary) to close seven mosques and expel up to 60 imams. The law aims at barring radical Islam and prohibits foreign funding of Islamic communities.  The Arab Cultural and Religious Community, and six mosques it operates, were ordered closed on suspicion of promoting radical Islam.  A seventh mosque operated by a far right-wing group known as the Gray Wolves was also ordered closed.  The influx of refugees from Syria since 2015 has increased the Muslim population, and Turkish-trained imams, who continue to receive funding from Turkey, now work in Austria. They are the imams being targeted.

Court Allows Archbishop Sheen's Remains To Be Moved To Illinois

A New York trial court yesterday ruled in a rather bitter dispute that the remains of the late Archbishop Fulton J. Sheen should be moved from a crypt in  New York's St. Patrick's Cathedral to a Cathedral in Peoria, Illinois, where he was ordained as a priest. (See prior related posting.) In Cunningham v. Trustees of St. Patrick's Cathedral, (NY Cty., June 8, 2018), the court (on remand from the Appellate Division) relied on the belief of Sheen's niece that the move is the only way to advance the Cause for Sheen being declared a saint.  Peoria's Bishop Daniel Jenky was the Promoter for the Cause of Sainthood for Sheen, but refused to continue his advocacy until Sheen's remains are moved.  The New York Archdiocese is not interested in promoting the sainthood Cause.  The court concluded:

The evidentiary hearing revealed that the location of Archbishop Sheen's final resting place would not have been his primary concern; his focus was on souls rather than the location of earthly remains. ...[B]ecoming a saint would allow Archbishop Sheen to accomplish his highest calling-- to reach as many believers as possible and to intercede on their behalf.

The Diocese of Peoria issued a press release reacting to the decision.  WJBC and Church Militant both reported on the decision.