Cert. Denied In Michigan Legislative Prayer Case

Last week the U.S. Supreme Court denied certiorari in Bormuth v. Jackson County, Michigan, (Docket No. 17-7220, cert. denied June 28, 2018). (Order List).  In the case, the 6th Circuit sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy. (See prior posting.)  The denial of review came on the same day that the Supreme Court (as previously reported) also denied certiorari in a 4th Circuit legislative prayer case-- Rowan County, North Carolina v. Lund which took a contrary view in a similar situation. In the Rowan County case, Justice Thomas, joined by Justice Gorsuch, filed an opinion dissenting from the denial of certiorari, saying in part::

[T]he Sixth and Fourth Circuits are now split on the legality of legislator-led prayer. State and local lawmakers can lead prayers in Tennessee, Kentucky, Ohio, and Michigan, but not in South Carolina, North Carolina, Virginia, Maryland, or West Virginia. This Court should have stepped in to resolve this conflict.

[Thanks to Blog From the Capital for the lead on Bormuth.]

Australian Archbishop Sentenced To 12 Months Home Confinement For Concealing Priest Abuse

In Australia, Archbishop Philip Wilson, one of the country's most senior Catholic leaders, has been sentenced to 12 months home detention after being found guilty of concealing decades of abuse by a pedophile priest. The Australian reports that the sentence was imposed after a two-week trial on one count of concealing a serious indictable offense.

Suit Challenges Non-Disclosure Agreements In Priest Abuse Settlements

AP reported yesterday on a lawsuit filed in a Pennsylvania state trial court by four women (related as sisters) against the Catholic Diocese of Harrisburg.  The suit seeks to invalidate two confidentiality agreements entered in 1994 and 1995 in settling suits alleging that a parish priest, Rev. Augustine Michael Giella, abused two of the women when they were young girls.  The agreements apply to all family members. The Diocese says it no longer enforces confidentiality agreements stemming from pries abuse settlements, but plaintiffs' lawyer says they want this in writing before the women speak out.

8th Circuit Orders Dismissal of Trial Judge's Suit Over His Sitting On Death Penalty Cases

In In re Kemp, (8th Cir., July 2, 2018), the U.S. 8th Circuit Court of Appeals by a 2-1 vote issued a writ of mandamus essentially ordering an Arkansas federal district court to dismiss a suit against seven justices of the Arkansas Supreme Court brought by Wendell Griffen, a state trial court judge. The Arkansas Supreme Court had ordered Griffen, who is also a Baptist minister, taken off of all cases involving the death penalty or the state's execution protocol, citing an apparent lack of impartiality. Griffen had issued a temporary restraining order against the state's method of execution after he wrote a blog post criticizing the death penalty as immoral and took part in an anti-death penalty rally on Good Friday.  Griffen then sued in federal district court claiming infringement of his religious freedom as well as retaliation for exercising his free speech rights, and violation of his due process and equal protection rights. The district court refused to completely dismiss Griffen's lawsuit. (See prior posting.) The 8th Circuit held, however, that Griffen had not stated a plausible claim for relief under any of his theories.  Judge Kelly dissented, arguing that this is an improper use of mandamus.  Arkansas Democrat-Gazette reports on the decision.

Recent Articles of Interest

From SSRN:

• Iain T. Benson, Can Law Avoid Creating Culture and Religion in Its Own Image? The Context for Diversity, Religion and Culture in MEC for Education: Kwazulu-Natal and Others v Navaneethum Pillay: Reflections a Decade Later, (Journal for Juridical Science, 2017).
• Chan Tov McNamarah, On the Basis of Sex (UAL Orientation or Gender Identity): Bringing Queer Equity to School with Title IX, (Cornell Law Review, Vol. 104, (Forthcoming 2019)).
• Paul Benjamin Linton, Overruling Roe v. Wade: The Implications for Women and the Law, (Life an Learning XVII: Proceedings of the Twenty-Seventh University Faculty for Life Conference (2017)).
• Holning Lau, From Loving to Obergefell: Elevating the Significance of Discriminatory Effects, (Virginia Journal of Social Policy and the Law (2018 Forthcoming)).
• Holning Lau, Comparative Discrimination Law: Sexual Orientation and Gender Identity, (Brill Research Perspectives in Comparative Discrimination Law (2018 Forthcoming)).
• Mohamed A. Arafa, Islamic Criminal Law: The Divine Criminal Justice System between Lacuna and Possible Routes, (2 Journal of Forensic and Crime Studies 102 (Spring 2018)).
• Nicolas J. Duquette, Spend or Save? Nonprofits’ Use of Donations and Other Revenues, (Nonprofit and Voluntary Sector Quarterly, 46(6): 1142-1165 (2017)).

Recent Prisoner Free Exercise Cases

In Branco v. Milligan, 2018 U.S. App. LEXIS 17583 (6th Cir., June 26, 2018), the 6th Circuit affirmed the dismissal of a Muslim inmate's complaint that he was not called out for the nightly Ramadan feast on one occasion.

In Robertson v. McCullough, (10th Cir., June 28, 2018), the 10th Circuit affirmed the dismissal of a claim by a Christian inmate that his religious exercise was burdened when he was not permitted to donate a kidney to another inmate.

In Horacek v. Prisk, 2018 U.S. Dist. LEXIS 103824 (WD MI, June 21, 2018), a Michigan federal district court dismissed a Jewish inmate's complaint of delay in approving and instituting his participation in the kosher meal program.

In Carawan v. Mitchell, 2018 U.S. Dist. LEXIS 104149 (WD NC, June 20, 2018), a North Carolina federal district court dismissed a Muslim inmate's complaint that he was unable to both receive earned time for going to school and freely practice Islam because class attendance policies conflicted with religious services, and that he was not allowed to pray while seated at his desk in class.

In Buckley v. County of San Mateo, 2018 U.S. Dist. LEXIS 104370 (ND CA, June 21, 2018), a California federal district court allowed a Jewish inmate to move ahead with his complaint that he was denied the right to have Sabbath candles, a prayer book and Sabbath services, and to wear certain religious items outside his cell. His complaint regarding kosher food was dismissed.

In Shabazz v. Johnson City Police Department, 2018 U.S. Dist. LEXIS 104887 (ND NY, June 21,2018), a New York federal magistrate judge recommended dismissing, with a right to replead, a Muslim inmate's complaint that a search of him violated his free exercise rights. UPDATE: The court adopted the magistrate's recommendations at 2018 U.S. Dist. LEXIS 155020, Sept. 10, 2018.

In Nadolny v. Stock, 2018 U.S. Dist. LEXIS 106653 (SD IL, June 26, 2018), an Illinois federal district court allowed an inmate to move ahead with his complaint that the assistant warden prevented him from changing his religion from Baptist to Muslim.

In Bell v. Young, 2018 U.S. Dist. LEXIS 107169 (D SD, June 27, 2018), a South Dakota federal magistrate judge allowed a Buddhist inmate to move ahead with his complaint that inmates were allowed to receive free books from Christian religious groups, but not from non-religious groups.

In Lowe v. Smith, 2018 Ind. App. Unpub. LEXIS 758 (IN App., June 29, 2018), an Indiana appellate court reversed the dismissal of an inmate's complaint that a new prison policy no longer allows Muslim congregational prayer in their accustomed room, and only allows Muslims to pray while seated at tables.

In Buford v. Bolton, 2018 U.S. Dist. LEXIS 109130 (WD KY, June 28, 2018), a Kentucky federal district court allowed a Jewish inmate to move ahead with a claim that he was denied kosher meals in violation of his free exercise rights.

Northern Ireland Appeals Court Says Humanist Wedding Officiants Are Permitted

In In re Laura Smyth, (NI Ct. App., June 28, 2018), the Northern Ireland Court of Appeal held that the General Register Office should have granted a license under the Marriage (Northern Ireland) Order 2003 to a marriage celebrant to perform a Humanist marriage ceremony for a couple seeking it. Northern Ireland's marriage law has separate provisions for civil marriages and religious marriages. The appeals court held that it would violate the European Convention on Human Rights' conscience protections (Art. 9) and its anti-discrimination provisions (Art. 14) to deny the license.  The Humanist officiant should be licensed under the Section 31 of the Marriage Order. While that provision is usually the basis for appointing a person to solemnize a civil marriage, the Marriage Order should be read to allow the Humanist officiant to conduct a ceremony that includes readings supporting or promoting humanist beliefs. The full text of the decision is not yet available online, but a lengthy court-authorized Summary of Judgment is available. Irish Legal News reports on the decision.

Temporary Injunction Issued Against Quebec's Anti-Niqab Law

In the Canadian province of Quebec yesterday, a trial court again blocked the province's anti-niqab law from taking effect.  The law bans the both those furnishing government services, and those receiving them, from doing so with their face covered. (See prior posting.) According to Reuters:

A judge in December suspended the ban until the provincial government crafted regulations. The completed regulations, which included arrangements for individuals to obtain religious exemptions, were poised to take effect on Sunday.

But another judge on Thursday deemed the new rules confusing and ambiguous and suspended implementation again while the court challenge goes ahead.

Quebec Superior Court Judge Marc-Andre Blanchard wrote in his ruling that the law appeared on its face to violate the Canadian Charter of Rights and Freedoms, adding it could cause Muslim women “irreparable harm.”

Cert. Denied, Over 2 Dissents, In Legislative Prayer Case

The U.S. Supreme Court yesterday denied review in Rowan County, North Carolina v. Lund, (cert. denied 6/28/2018), but with Justice Thomas, joined by Justice Gorsuch, filing an opinion dissenting from the denial of certiorari. (Full text).  In the case,  the U.S. 4th Circuit Court of Appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners, in which commissioners themselves deliver invocations, violate the Establishment Clause. (See prior posting.) Charlotte Observer reports on the denial of certiorari and reactions to it.

Supreme Court Review Sought In Case of Football Coach Prayer

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Kennedy v. Bremerton School District, (cert. filed 6/25/2018).  In the case, the 9th Circuit affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games. (See prior posting.)  Christian News reports on the petition for review.

Supreme Court Issued Clean-Up Orders In Other Pregnancy Clinic and Travel Ban Cases

In light of Tuesday's Supreme Court decisions in the travel ban and the pro-life pregnancy center cases, yesterday the Supreme Court issued clean-up orders, remanding for consideration in light of those decisions several similar cases in which petitions for review were pending. (Order List (June 28, 2018)):

In Woman's Friend Clinic v. Becerra (Docket No. 16-1146); Livingwell Medical Clinic v. Becerra (Docket No. 16-1153); Mountain Right to Life v. Beccera  (Docket No. 17-211); the court granted certiorari, vacated 9th Circuit judgments below, and remanded for further consideration in light of National Institute of Family and Life  Advocates v. Becerra.

In International Refugee Assistance v. Trump (Docket No. 17-1194) and Trump v. International Refugee Assistance (Docket No. 17-1270), the Court granted certiorari, vacated 4th Circuit judgments below, and remanded for further consideration in light of Trump v. Hawaii.

Supreme Court Remands Case Involving Officers Ordering Suspect To Cease Praying

In Sause v. Bauer, (US Sup. Ct., June 28, 2018), the U.S. Supreme Court in a 4 page per curiam opinion granted certiorari, reversed the 10th Circuit, and remanded for further proceedings a case in which petitioner claimed that her free exercise rights were infringed when police officers in her apartment in response to a noise complaint ordered her to stop praying. The Court said in part:

There can be no doubt that the First Amendment protects the right to pray. Prayer unquestionably constitutes the “exercise” of religion. At the same time, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. For example, if an officer places a suspect under arrest and orders the suspect to enter a police vehicle for transportation to jail, the suspect does not have a right to delay that trip by insisting on first engaging in conduct that, at another time, would be protected by the First Amendment. When an officer’s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable.

That is the situation here. As the case comes before us, it is unclear whether the police officers were in petitioner’s apartment at the time in question based on her consent, whether they had some other ground consistent with the Fourth Amendment for entering and remaining there, or whether their entry or continued presence was unlawful.... Without knowing the answers to these questions, it is impossible to analyze petitioner’s free exercise claim.

(See prior related posting.)

Andy Khawaja Appointed As A USCIRF Commissioner

The U.S. Commission on International Religious Freedom has announced that last week Senate Democratic Leader Charles Schumer appointed Dr. Andy Khawaja to the Commission. Khawaja is founder and CEO of an online payment service, Allied Wallet. The President and party leaders in each house of Congress appoint Commissioners to the 9-member Commission.

Two FLDS Leaders Convicted of Polygamy In Canada

AP reports that in the Canadian province of British Columbia, two leaders of the FLDS sect living in the border town of Bountiful have been sentenced by a trial court judge to house arrest after being convicted of polygamy.  61-year old Winston Blackmore, found guilty of having 24 wives, was given 6 months house arrest followed by 12 months probation and 150 hours of community service.  James Oler, who was convicted of having 5 wives, received 3 months house arrest, 12 months probation and 75 hours community service work. There are only two other convictions for polygamy in Canadian history, one in 1899 and the other in 1906.

In Israel, New Legal Hurdles To Egalitarian Prayer Space At Western Wall

Haaretz reports that Prime Minister Benjamin Netanyahu's plans to expand the area at the Western Wall that is available for egalitarian prayer has run into new legal and political hurdles.  Culture Minister Miri Regev announced yesterday that she is resigning as head of the ministerial committee charged with approving this expansion in the Robinson's Arch area of the Wall. (See prior related posting.)  Israel's Antiquities Law requires approval of the committee for construction at any archeological site.  Regev says that her conscience does not permit her to convene a committee to approve mixed-gender prayer.

Meanwhile, in April the right wing organization B'Tzedek sued the Antiquities Authority in the High Court of Justice contending that the Robinson's Arch expansion is illegal. Netenyahu is concerned that if expansion does not begin soon, the High Court will side with B'Tzedek, and that this will lead to the Court ruling instead that there should be an egalitarian prayer area as part of the main plaza of the Western Wall.  That would likely lead to a political crisis in Netanyahu's coalition government.

UPDATE: On July 3, Jerusalem Post reported:

A major step toward renovating the egalitarian prayer section of the Western Wall was taken Monday night, with the Knesset approving the transfer of authority over infrastructure changes to holy sites to Prime Minister Benjamin Netanyahu from Culture and Sport Minister Miri Regev.

Challenge To Hearing Scheduled For Rosh Hashanah Is Rejected

In Tarbutton v. Tarbutton, (LA App., June 27, 2018), a Louisiana state appeals court rejected a claim by a litigant seeking spousal support that her religious freedom rights were infringed when the trial court refused to reschedule a hearing on the matter scheduled for Rosh Hashanah.  Having already received one continuance, Brenna Tarbutton filed another motion for a continuance one day before the hearing.  Since her ex-husband refused to consent to the continuance, the court held the hearing without Brenna present.  At the hearing, it refused to admit into evidence her affidavit of income and expenses. The court said in part:

Not all burdens on religion are unconstitutional and the court may consider important governmental interests in assessing a limitation of a party’s First Amendment rights....

It was Breanna’s delay in filing her motion that required the hearing on the continuance to be held on the asserted holy day. In addition, Breanna’s claim that she was unable to file her motion sooner because of “confusion” about the date of the holy day is not plausible, since she could have consulted a calendar or a religious official to determine the date well before the afternoon prior to the hearing which had been scheduled two months earlier.

Justice Kennedy To Retire

Justice Anthony Kennedy today submitted a letter (full text) to President Trump notifying the President that he plans to move from active status to senior status on the Court as of July 31. A press release from the Supreme Court confirmed Kennedy's intent to retire.

Israel Expands Rabbinical Court Divorce Jurisdiction To Cover Recalcitrant Non-Israeli Husbands

On Monday, Israel's Knesset passed a new law giving Israeli Rabbinical Courts jurisdiction over divorces outside of Israel between non-Israelis where a Jewish husband has refused to give his estranged wife a Jewish bill of divorce (a get). The court however can act only when the husband subsequently is physically present in Israel. Jerusalem Post reports:

The legislation, which is a temporary three-year law, allows the Rabbinical Courts to hear a case involving a couple in which neither spouse is Israeli, on one of three conditions: if there is no rabbinical court where the couple lives to deal which can hear the case; the couple has not been in front of a rabbinical court for four months; or if a husband refuses to give a divorce after a rabbinical court in the Diaspora ruled that he must do so and made “reasonable efforts” to enforce its decision....

The rabbinical courts in Israel can impose sanctions on recalcitrant spouses to persuade them to divorce, such as revoking driving licenses, revoking passports, placing restrictions on their bank accounts, and even imprisoning them for extended periods of time.

But such sanctions are not at the disposal of rabbinical courts in the Diaspora since they are not state institutions....

Cert. Filed In Bladensburg Cross Challenge

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in American Legion v. American Humanist Association. In the case, the U.S. 4th Circuit Court of Appeals in a 2-1 decision held that a 40-foot tall Latin Cross on government property created as a World War I Veterans' Memorial (Bladensburg Cross) violates the Establishment Clause.  (See prior posting.) En banc review was denied by a vote of 8-6. (See prior posting).  First Liberty Institute issued a press release announcing the filing of the cert. petition.

Notre Dame and HHS Sued Over Settlement of Contraceptive Mandate Coverage

Yesterday a group of Notre Dame undergraduate and graduate students filed suit in an Indiana federal district court against the University and the Trump Administration challenging a settlement entered last year with the University in its lawsuit over the contraceptive coverage mandate under the Affordable Care Act.  The complaint (full text) in Irish 4 Reproductive Health v. U.S. Department of Health and Human Services. (ND IN, filed 6/26/2018), contends that the settlement which exempts Notre Dame from furnishing contraceptive coverage to its students and employees where doing so would violate the University's religious tenets was entered in violations of the Administrative Procedure Act.  The settlement reflects the exemptions for religious non-profits which the Trump Administration adopted, but whose application has been enjoined nationwide by two other federal district courts.  The complaint also challenges the constitutionality of those now-enjoined rules.

According to the complaint, Notre Dame will provide some contraceptive coverage, but will require co-pays, and will refuse to cover certain IUDs and emergency contraceptives. Presumably this is an attempt to withdraw coverage of contraceptives that may prevent implantation of a fertilized egg.  Plaintiffs in the case are represented by Americans United for Separation of Church and State, the National Women’s Law Center (NWLC), the Center for Reproductive Rights and their co-counsel. NWLC issued a press release announcing the lawsuit.