Hawaii Supreme Court Denies Review In Cse of B&B's Refusal To Rent To Lesbian Couple

In an Order (full text) entered July 10, the Hawaii Supreme Court in Cervelli v. Aloha Bed & Breakfast denied certiorari.  In the case, a Hawaii sate appeals court (see prior posting) held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple.  The appeals court also rejected privacy and free exercise defenses. AP reports on the state Supreme Court's denial of review. [Thanks to Tom Rutledge for the lead.]

European Court: Data Protection Directive Applies To Jehovah's Witnesses Information Collected In Preaching

In Tietosuojavaltuutettu v Jehovan todistajat — uskonnollinen yhdyskunta,  (CJEU, July 10, 2018), the Court of Justice of the European Union held that the European Parliament's Directive 95/46 on protection of individuals' personal data applies to collection and manual processing of personal data by Jehovah's Witnesses in the course of their door-to-door preaching. The question arose in a request for a ruling made by Finland's Data Protection Supervisor.  The court also issued a press release summarizing the court's decision. Law & Religion UK blog reports on the decision.

Suit Over Charlottesville Neo-Nazi Rally May Proceed

In Sines v. Kessler, (WD VA, July 9, 2018), a Virginia federal district court, in a 62-page opinion, held that a group of Charlottesville residents can move ahead with most of their claims for injuries growing out of the racist and anti-Semitic August 2017 "Unite the Right" rally in Charlottesville. The court summarized its opinion:

In 1871, Congress passed a law “directed at the organized terrorism in the Reconstruction South[.]” ... 42 U.S.C. § 1985. Over a hundred and forty years later ... the Defendants ..., including the Ku Klux Klan, various neo-Nazi organizations, and associated white supremacists, held rallies in Charlottesville, Virginia. Violence erupted.... Plaintiffs, allege that this violence was no accident. Instead, they allege the Defendants violated the 1871 Act and related state laws by conspiring to engage in violence against racial minorities and their supporters. The Defendants retort that they were simply engaged in lawful, if unpopular, political protest and so their conduct is protected by the First Amendment. While ultimate resolution of what happened at the rallies awaits another day, the Court holds the Plaintiffs have plausibly alleged the Defendants formed a conspiracy to commit the racial violence that led to the Plaintiffs’ varied injuries. Accordingly, the Plaintiffs’ claims largely survive, although one Defendant is dismissed and other claims are pared down.

WTVR reports on the decision.

Kavanaugh's Judicial Record On Religion Issues

To assist in evaluation of Supreme Court nominee Brett Kavanaugh's church-state and religious liberty views, here are all the D.C. Circuit cases involving these issues in which Kavanaugh was one of the judges deciding the case. Cases designated by an asterisk are ones in which Kavanaugh authored an opinion:

Estate of Coll-Monge v. Inner Peace Movement, 524 F.3d 1341 (2008)

* Chaplaincy of Full Gospel Churches v. United States Navy (In re Navy Chaplaincy), 534 F.3d 756 (2008) [majority opinion]

St. John's United Church of Christ v. FAA, 550 F.3d 1168 (2008)

Kaemmerling v. Lappin, 553 F.3d 669 (2008)

* Newdow v. Roberts, 603 F.3d 1002 (2010)[concurring opinion]

Daniel Chapter One v. FTC, 405 Fed. Appx. 505 (2010)

* Mahoney v. Doe, 642 F.3d 1112 (2011) [concurring opinion]

United States v. Moore, 651 F.3d 30 (2011)

Chaplaincy of Full Gospel Churches v. United States Navy (In re Navy Chaplaincy), 738 F.3d 425 (2013)

In re Charges of Judicial Misconduct, 769 F.3d 762 (2014)

* Priests for Life v. United States HHS, 808 F.3d 1 (2015) [dissenting opinion]

Preliminary Analyses of SCOTUS Nominee Brett Kavanaugh's Religious Liberty Positions

President Trump last night announced that he will nominate D.C. Circuit Judge Brett M. Kavanaugh to Justice Anthony Kennedy's seat on the U.S. Supreme Court.  Last week, National Review ran this analysis of Judge Kavanaugh's record on religious liberty and church-state issues. The Federalist also ran an analysis, more critical of Kavanaugh's record in this regard.

The Washington Post last night ran an article titled: Judge Brett Kavanaugh — a Catholic — faces a historical struggle between canon and constitutional law

Also last week, Daniel Cardinal DiNardo, President of the United States Conference of Catholic Bishops sent a letter (full text) decrying attempts to generate opposition of any Supreme Court nominee based on his or her views on Roe v. Wade. The letter reads in part:

There is no doubt that the Catholic Church stands out for its commitment to the right to life from conception until natural death.  This ethic has profound consequences not only for abortion, but for many other areas of life, including the death penalty, the application of scientific research to human subjects, the right to adequate health care, and the role of the state in promoting the common good.  Our civil society will be all the poorer if Senators, as a matter of practice, reject well-qualified judicial nominees whose consciences have been formed in this ethic.

UPDATE: Americans United has also prepared a report (full text) on Kavanaugh's church-state and religious liberty record. In addition to opinions, the report identifies relevant briefs and a lecture.

Recent Articles of Interest

From SSRN:

• Teresa Stanton Collett, Against Ideological Colonization: The Teaching of Humanae Vitae and a Humanely Adequate Global Ethic, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 18-13 (2018)).
• Dagmar Schiek, On Uses, Mis-Uses and Non-Uses of Intersectionality Before the European Court of Justice (ECJ): The ECJ Rulings Parris (C-433/15), Achbita (C-157/15) and Bougnaoui (C-188/15) as a Bermuda Triangle?, (Journal of Discrimination and the Law, Forthcoming).
• Robin Fretwell Wilson & Shaakirrah Sanders, By Faith Alone: When Religious Beliefs and Child Welfare Collide, (Chapter from: The Contested Place of Religion in Family Law (Robin Fretwell Wilson, ed., Cambridge University Press, 2018)).
• Robin Fretwell Wilson, Divorcing Marriage and the State Post-Obergefell, (Chapter in: The Contested Place of Religion in Family Law (Robin Fretwell Wilson, ed., Cambridge University Press, 2018)).
• Joanna N. Erdman, Constitutionalizing Abortion Rights in Canada, (Ottawa Law Review, Vol. 49, No. 1, 2017).
• Steve Sanders, Making it Up: Lessons for Equal Protection Doctrine from the Use and Abuse of Hypothesized Purposes in the Marriage Equality Litigation, (Hastings Law Journal, Vol. 68, 2017).
• Sarah C. Haan, The Post-Truth First Amendment, (94 Indiana Law Journal, 2018, Forthcoming).
• Vincent J. Samar, Personhood Under the Fourteenth Amendment, (Marquette Law Review, Vol. 101, Issue 2, 2017).

Canadian Court Says Polyamorus Trio Can All Be Listed As Child's Parents

The Provincial Court of Newfoundland and Labrador, for the first time in Canadian history, has ruled that three adults living in a polyamorous relationship can all be listed as a child's parents on the child's birth certificate.  According to a July 6 report by the Log Cabin Democrat, Justice Robert Fowler wrote:

Society is continuously changing and family structures are changing along with it. This must be recognized as a reality and not as a detriment to the best interests of the child.

Indiana Court Rejects RFRA Exemption For Sacramental Marijuana Use

In First Church of Cannabis, Inc. v. State of Indiana, (IN Cir. Ct, July 6, 2018), an Indiana trial court judge rejected claims by the First Church of Cannabis that under the state's Religious Freedom Restoration Act it is entitled to an exemption from the state's law relating to the possession and use of marijuana when it is used for sacramental purposes. The court refused to enjoin state enforcement against the church, concluding that the state has a compelling interest in preventing marijuana use. The Hill reports on the decision.

Recent Prisoner Free Exercise Cases

In Williams v. Bedison, (5th Cir., July 3, 2018), the 5th Circuit affirmed a Texas federal district court's dismissal of a suit by an inmate who is a member of Moorish Science Temple of America who complained that he was not provided with primary services to practice his faith.

In Evans v. Brown, 2018 U.S. Dist. LEXIS 110441 (ND CA, July 2, 2018), a California federal district court held that a Muslim inmate's exclusion from the Ramadan meal program did not qualify for the "imminent danger" exception to the statutory "three strikes rule" that precludes inmates who have brought 3 or more frivolous actions from proceeding in forma pauperis.

In Gaston v. Marean, 2018 U.S. Dist. LEXIS 110448 (ED CA, June 29, 2018), a California federal magistrate judge, in a recommended finding, concluded that the cutting off of 4 dreadlocks of a Rastafarian inmate during his treatment for a head laceration did not amount to a substantial burden on his free exercise rights.

In Wade v. California Department of Corrections & Rehabilitation, 2018 U.S. Dist. LEXIS 111268 (ND CA, July 3, 2018), a California federal district court dismissed a Nation of Islam inmate's complaint that NOI videos were not shown to the entire prison and that no NOI chaplain was provided.

In Vidro v. Erfe, 2018 U.S. Dist. LEXIS 111750 (D CT, July 5, 2018), a Connecticut federal district court allowed a Native American inmate to move ahead with his 1st Amendment free exercise claim that he was denied adequate winter clothing to wear during his smudging rituals.

Boston Sued Over Refusal To Allow Christian Flag On Public Flag Pole

A suit was filed last week in Massachusetts federal district court against the city of Boston by Camp Constitution, a non-profit organization whose purposes include enhancing understanding of the United States' Judeo-Christian moral heritage.  The complaint (full text) in Shurtleff v. City of Boston, (D MA, filed 7/6/2018) alleges that it was refused use of a City Hall flagpole that is generally available to organizations to use in connection with cultural, historic or other events.  Camp Constitution sought to fly a Christian flag in connection with its planned event designed to recognize the contributions Boston’s Christian community to the city’s cultural diversity, intellectual capital and economic growth.  The city refused permission under an informal policy that allowed only "non-secular" flags to fly from the pole. The suit contends that this violate's plaintiffs' free speech and equal protection rights as well as the Establishment Clause under both the U.S. and Massachusetts constitutions. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Muslim Group's Challenge To Landmark Designation Dismissed On Ripeness Grounds

In Islamic Community Center for Mid Westchester v. City of Yonkers Landmark Preservation Board, (2d Cir., July 6, 2018), the U.S. 2nd Circuit Court of Appeals affirmed the dismissal for lack of ripeness of a suit brought by a Muslim community center.  The city had designated as a landmark the property which the organization (ICCMW) had purchased for use as a mosque.  The court ruled that ICCMW had failed to apply for the “certificate of appropriateness” that would, if granted, enable them to move ahead with construction despite the landmark designation.

Short-Term Rental Ban Does Not Burden Rabbi's Religious Freedom

According to today's Savannah Morning News, a Savannah, Georgia state trial court judge has upheld against a religious freedom challenge Savannah's city ordinance prohibiting short-term vacation rentals in certain areas of the city.  Rabbi Arnold Belzer and his wife claim that they were acting in accordance with Jewish scripture and the tradition of hospitality in opening one bedroom in their home to guests from all over the world. The space was listed on Airbnb. The court, in ruling on a motion for a preliminary injunction, held that the zoning ordinance is not a substantial burden on the Belzers' religious freedom.

Another Religious College Gets Relief Against ACA Contraceptive Mandate Rules

Consistent with a number of other recent district court opinions, a Pennsylvania federal district court in Geneva College v. Azar, (WD PA, July 5, 2018), issued a permanent injunction against applying the Affordable Care Act contraceptive coverage mandate rules to Geneva College to the extent that the college has religious objections to compliance. The Trump Administration has conceded that applying the Obama Administration's accommodation rules to religious non-profits would violate the Religious Freedom Restoration Act.  ADF issued a press release announcing the decision.

Pruitt's Resignation Letter Says Trump Is President Because of God's Providence

As widely reported, yesterday Scott Pruitt resigned as head of the Environmental Protection Agency. His resignation letter to President Trump (full text) included the following paragraph:

My desire in service to you has always been to bless you as you make important decisions for the American people. I believe you are serving as President today because of God's providence. I believe that same providence brought me into your service. I pray as I have served you that I have blessed you and enabled you to effectively lead the American people. Thank you again Mr. President for the honor of serving you and I wish you Godspeed in all that you put your hand to.

Pakistan Court Orders Public Release of Report On Temporary Election Law Amendments That Favored Ahmadis

In Pakistan last year, a change in the election law that apparently would have permitted members of the Ahmadi sect to run for political office created major controversy until the legislature restored the oath that precludes anyone who does not believe in the absolute and unqualified finality of the Prophethood of Muhammad from being a candidate. (See prior posting.)  A 3-person committee headed by headed by Pakistan Muslim League-Nawaz chairman Raja Zafarul Haq was appointed to determine who was responsible for the pro-Ahmadi legislative change. The report was submitted by the government to the Islamabad High Court, but was not released publicly. As reported by Geo News, yesterday the Islamabad High Court, in a 172-page opinion, ordered the report made public. Pakistan Today reports more extensively on the High Court's opinion which concluded that every citizen has the right to know the religion of persons holding key governmental posts. The Court expressed concern that Ahmadis can disguise their beliefs to gain access to political posts reserved for Muslims.

Haliburton Sued By EEOC For Religious and National Origin Discrimination

The EEOC announced on Tuesday that it has filed suit against the large multinational Haliburton Energy Services, Inc., charging that the company subjected two of its employees to religious and national origin discrimination.  According to the EEOC:

Hassan Snoubar, of Syrian national origin, began working for Halliburton as an operator-assistant oil field worker.... During his employment, Snoubar, a U.S. citizen, was subjected to taunts and name calling regarding both his national origin and his Muslim religion. He was frequently called derogatory names ... and was accused of being associated with ISIS and terrorism by supervisors and co-workers. Mir Ali, a Muslim co-worker of Indian national origin, was similarly subjected to the hostile environment.

... After being continually criticized about their cultural attire, appearance and even claims that "their people" engaged in bestiality, Snoubar expressed his concerns to management and human resources, but was then fired.

City Sues To Close Down Church Allegedly Operating As Marijuana Dispensary

Los Angeles Times reported on Tuesday that Newport Beach, California officials have filed a civil suit in state court seeking an injunction to close down Church of the Holy Grail. The suit claims that the Church is operating as an illegal marijuana dispensary. The suit also seeks a $25,000 civil penalty. Holy Grail's attorney says that use of marijuana at the site is a lawful exercise of religion.

Iowa Churches Diverge On Immigration Issues

The New York Times yesterday posted an article titled An ICE Raid Leaves an Iowa Town Divided Along Faith Lines. The investigative piece explores how an ICE raid at an Iowa concrete plant has generated different responses locally from members of different Christian denominations:

President Trump’s immigration crackdown has been promoted with biblical righteousness by senior members of his administration, including Attorney General Jeff Sessions. And in heartland communities where the president is popular, the crackdown is often debated — by supporters and critics alike — through the lens of Christian morality.

Conditions Imposed On Church's Homeless Shelter Violate RUIPA

In First Lutheran Church v. City of St. Paul, (D MN, July 2, 2018), a Minnesota federal district court granted a preliminary injunction against two conditions the city imposed on the church's partnering with Listening House in the use of the church's basement as a day shelter for the homeless. One condition was a requirement that a sign be posted restricting after hours use of church grounds. The church objected saying that visitors are welcome to enjoy its property at any time. The second condition limited the number of guests to 20 per day, even though 50 to 60 are typically served and the fire code capacity for the basement is 122. The court, finding a violation of RLUIPA, said in part:

With respect to the sign-posting requirement, the governmental interest furthered is the help the City needs to enforce trespassing.... Even assuming that aiding the enforcement of trespassing is a compelling governmental interest, entry onto First Lutheran’s property after hours is not trespassing because First Lutheran consents to people being on church property after hours.... 

With respect to the twenty-person limit, the City claims that the condition furthers the governmental interest in maintaining the residential character of the neighborhood.... The limit purportedly furthers this interest in two ways: by reducing the number of guests and thereby preventing overcrowding of a residential neighborhood, and by reducing petty offenses allegedly committed by guests. But, in practice, the limit is unlikely to further the City’s interest in either way....

First, it is unclear whether or how the limit will reduce overcrowding. As noted, demand is high for First Lutheran’s and Listening House’s services. As news spreads about the twenty-person limit, it is likely that more prospective guests will line up early in hopes of being admitted, which would cause more overcrowding in the morning hours....

Second, the limit is unlikely to reduce petty offenses.... If Listening House closed its doors tomorrow, its guests who are homeless or poor would still be homeless or poor, and the City would continue to experience the effects of homelessness and poverty. 

The court also found that the sign posting requirement amounts to unconstitutional content-based compelled speech.

California Elimination of Personal Belief Exemption From Vaccination Requirements Upheld

In Brown v. Smith, (Cal. App., July 2, 2018), a California appellate court rejected a challenge to a 2015 California legislative change that eliminated the personal beliefs exemption from the requirement that children receive vaccines for certain infectious diseases before being admitted to any public or private school. The court rejected a challenge under the state constitution's free exercise clause, finding that the state has a compelling interest in preventing the spread of communicable diseases. The court also rejected other state constitutional and statutory challenges. (See prior related posting.)