Australian Court Bans Niqab In Spectator's Gallery

In Australia, a judge in the Victoria Supreme Court has refused to allow the wife of a terrorism defendant to wear a niqab (a full-face veil) in the court's public spectator gallery during her husband's trial.  In The Queen v. Chaarani, (VSC, July 18, 2018), the court said in part:

... Australia is obviously a multicultural society and I agree that religious dress should be accommodated as much as possible, but the right of religious freedom and the right to participate in public life are not absolutes....

Criminal proceedings in the trial division of the Supreme Court are often highly stressful experiences, not only for the accused but for those close to the accused. Likewise for those close to any victims. As a consequence of that stress, incidents happen from time to time in court.... Spectators whose faces are uncovered are likely to appreciate that, if they misbehave, it will not be too difficult to establish their identity, even if they manage to get away from the court....

A requirement that spectators have their faces uncovered is not to force anyone to act immodestly.  First, the exposure of one’s face in a court room cannot reasonably be viewed as an immodest act: subjective views to the contrary cannot rule the day, or the management of a court room. Second, if someone feels strongly that it would be improper for them to uncover their face in court, they can choose not to attend. If that is Ms Al Qattan’s choice, arrangements will be made for live streaming of the proceedings to a remote facility within the court building so that she can still view the trial.

The Guardian reports on the decision.

Christian After-School Program Is Exempt From Illinois Unemployment Taxes

In By the Hand Club for Kids, NFP, Inc. v. Illinois Department of Employment Security, (IL Cir. Ct., July 18, 2018), an Illinois state trial court held that an evangelical after-school program for impoverished Chicago school children is exempt from the requirement to pay unemployment taxes to cover its employees.  The  court held that the group falls under the exemption for organizations operated primarily for religious purposes. The state argued that the organization is merely an after-school program that primarily furnishes homework help, tutoring, hot meals and medical attention.  The court however emphasized that the group sees these charitable acts a a religious practice, and also that the organization proselytizes the children participating in their program.  ADF issued a press release announcing the decision.

School's Mission Trip Fundraising Violated Establishment Clause

In American Humanist Association, Inc. v. Douglas County School District RE-1, (D CO, July 17, 2018), a Colorado federal district court, in a case on remand from the 10th Circuit, held that a school district's promotion and fund raising for a Christian mission trip to assist orphans in Guatemala violated the Establishment Clause.  The court concluded that the school's activities violated both the effect and entanglement prongs of the Lemon test.  The court said in part:

The very concept of a mission trip has religious intimations. The Guatemala mission trip was overtly religious. It was organized by District students and teachers who are part of the Fellowship of Christian Athletes; it was planned through a Christian organization called Adventures in Missions: Christian Mission Trips; and the fundraising page for the trip noted “our group’s primary goal is to share the love and hope of Jesus.” ... In addition, the student organizer of the trip testified that “the plan was to . . . introduce [children] to the Bible” and to “promote Christianity.” ... It was no secret to the defendants that the supplies and money donated during the Cougar Run supply drive would be used to directly advance Christian goals.

The court granted summary judgment to the individual plaintiff, but dismissed the associational plaintiff in the case. Denver Post reports on the decision.

Challenge To HHS Family Planning Grant Criteria Fails

In Planned Parenthood of Wisconsin, Inc. v. Azar, (D DC, July 16, 2018), the D.C. federal district court dismissed a challenge to an Announcement by the Department of Health and Human Services brought by three Planned Parenthood affiliates and the National Family Planning and Reproductive Health Association.  Plaintiffs particularly object to new language in criteria for funding of voluntary family planning projects.  The new language includes "cooperation with faith based organizations" as one factor to be considered. The court first concluded that the Announcement is not yet subject to judicial review because it is not final agency action. The court went on to hold that even if it reached the merits of the challenge, the Announcement would be valid, saying in part:

such linkages [to faith-based groups] may benefit Title X providers by providing connections to communities in need of Title X services and strengthening enrollment and awareness programming, among other benefits.... The Announcement’s low-key encouragement to partner with community and faith-based organizations is not contrary to law, or arbitrary and capricious.

Courthouse News Service reports on the decision.

3rd Circuit Hears Oral Arguments In Minister's Breach of Contract Case

Last week, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Lee v. Sixth Mount Zion Baptist Church of Pittsburgh. (Audio of full oral arguments).  In the case, a Pennsylvania federal district court dismissed on ministerial exception and excessive entanglement grounds a breach of contract suit by the church's pastor who was fired without being compensated under the contract clause relating to termination without cause.  (See prior posting.) Trib Total Media reports on the oral arguments.

Asylum Seeking Indian Sikhs Have Turbans Taken Away In Federal Custody

A report this week in the India Tribune alleges mistreatment of 52 illegal immigrants from India held at the federal prison in Sheridan, Oregon.  Most of these are Punjabi speaking Sikhs.  The immigrants are seeking asylum on the grounds of feared religious and political persecution in India.  In addition to the general problem of prison conditions, the Sikh inmates have had their turbans taken away. Some of the immigrants have now hired lawyers, so their conditions are improving. Community members have furnished beanies as head coverings to some Sikhs.

Church Tax Audit Limits Do Not Apply to Investigation of Pastors

In Rowe v. United States, (ED LA, May 16, 2018), a Louisiana federal district court held that the special protections of the Church Audit Procedure Act only applies to investigations into a church's tax liability. It does not apply to summonses to banks to supply church financial records in connection with an inquiry into the tax liability of the church's pastors. Nonprofit Law Prof Blog reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Title VII Race Provisions Cover Anti-Jewish Discrimination

In Bonadona v. Louisiana College, (WD LA, July 13, 2018), a Louisiana federal magistrate judge held that Title VII's ban on racial discrimination in employment is broad enough to cover discrimination based on a person's Jewish heritage. At issue is a Title VII suit by an applicant for a coaching position who was not hired because of his Jewish heritage.  Plaintiff was born to a Jewish mother but converted to Christianity in college.The court said in part:

America is no stranger to anti-Semitism, which is often rooted in prejudice against a person based on his heritage/ethnicity without regard to the person’s particular religious beliefs. Jewish citizens have been excluded from certain clubs or neighborhoods, and they have been denied jobs and other opportunities based on the fact that they were Jewish, with no particular concern as to a given individual’s religious leanings. Thus, they have been treated like a racial or ethnic group that Title VII was designed to protect from employment discrimination based on membership in that group.

AP reports on the decision.

5th Circuit: Subpoena To Catholic Bishops Should Have Been Quashed

In Whole Woman's Health v. Smith, (5th Cir., July 15, 2018), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order directed at the Texas Conference of Catholic Bishops.  The discovery order came in a case in which several health care providers are challenging the state's fetal remains regulations which they contend burdens women's right to abortion. The majority opinion said in part:

The [district] court’s analysis of the free exercise and establishment clause claims begs the fundamental, novel issues presented under these circumstances. The court’s rejection of the free speech, association, and petition claims too narrowly construes the nature of chilling effects on those rights while overbroadly interpreting the importance to the plaintiffs of the discovery sought here....

[T]he claim of religious organizations to maintain their internal organizational autonomy intact from ordinary discovery should be at least as secure as the protection constitutionally afforded other associations. Supreme Court decisions have protected religious organizations’ internal deliberations and decision-making in numerous ways.... Although none have spoken directly to discovery orders in litigation, the importance of securing religious groups’ institutional autonomy, while allowing them to enter the public square, cannot be understated and reflects consistent prior case law.

The majority however, pointing to the rule of constitutional avoidance, decided the case on the basis of Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden.

Judge Ho also filed a brief concurring opinion.  Judge Costa filed a dissenting opinion.  Becket issued a press release announcing the court's decision.

Recent Articles of Interest

From SSRN:

• Sohail Wahedi, Female Circumcision as an African Problem: Double Standards or the Harsh Reality?, (M. Christian Green, T. Jeremy Gunn, & Mark Hill (Eds.), Religion, Law and Security, Stellenbosch: African Sun Media 2018, Conference Proceedings).
• Brian Soucek, The Case of the Religious Gay Blood Donor, (William & Mary Law Review, Forthcoming).
• John M. Armstrong, Review of Plato, 'The Laws', edited by Malcolm Schofield, translated by Tom Griffith, Cambridge University Press, 2016, (Ancient Philosophy (Forthcoming)).
• Russell K. Robinson & David M. Frost, 'Playing it Safe' with Empirical Evidence: Selective Use of Social Science in Supreme Court Cases About Racial Justice and Marriage Equality, (June 22, 2018).
• Raphael Cohen-Almagor, When a Ritual Murder Occurred at Purim. The Harm in Hate Speech, (El profesional de la información, Vol. 27, No. 3 (2018), pp. 671-681).
• Nicholas Duquette, Alexandra Graddy-Reed & Mark Phillips, The Extent and Efficacy of State Charitable Contribution Income Tax Credits, (April 23, 2018).

From SmartCILP:

• Ronald J. Colombo, The Religious Liberty Jurisprudence of Justice Antonin Scalia, 46 Hofstra Law Review 433-443 (2017).

Recent Prisoner Free Exercise Cases

In Williams v. Annucci, (2d Cir., July 10, 2018), the 2nd Circuit, vacating and remanding a district court decision, held that the state had not carried its burden under RLUIPA to justify not accommodating the dietary restrictions imposed by an inmate's Nazarite Jewish faith.

In Riley v. Governor of Florida, (11h Cir., July 12, 2018), the 11th Circuit vacated the district court'd decision and remanded to give plaintiff an opportunity to amend in a suit in which an inmate complained that his religion had been incorrectly listed as Jewish because his Ethiopian Zion Coptic religion was not included in the computerized list of faith choices.

In Beers v. Fouts, 2018 U.S. Dist. LEXIS 114202 (D NH, July 10, 2018), a New Hampshire federal district court rejected an inmate's complaint that a group strip search violated his religious beliefs because it exposed his body to individuals who lacked a proper reason to view it.

In Sears v. Thomas, 2018 U.S. Dist. LEXIS 114470 (SD FL, July 9, 2018), a Florida federal magistrate judge recommended dismissing a suit by an inmate alleging that a chain and crucifix were improperly kept from him on the grounds they were purchased from an unauthorized vendor.

In George v. County of Westchester, 2018 U.S. Dist. LEXIS 114520 (SD NY, July 10, 2018), a New York federal district court allowed an inmate to move ahead with his complaint regarding a lack of Jewish congregational worship services.

In Muhammad v. Barksdale, 2018 U.S. Dist. LEXIS 114773 (WD VA, July 10, 2018), a Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 114324, March 14, 2018) and dismissed a Muslim inmate's complaint that he was served the Common Fare diet instead of "special" foods for Eid ul Fitr and Eid ul Adha.

In Maple v. Overmyer, 2018 U.S. Dist. LEXIS 114820 (WD PA, July 11, 2018), a Pennsylvania federal magistrate judge dismissed a Muslim inmate's complaint that he missed a Jummah prayer service and the feast of Eid Al-Fitr.

In Brennan v. Aston, 2018 U.S. Dist. LEXIS 116329 (WD WA, July 12, 2018), a Washington federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 116450, June 14, 2018) and allowed an inmate to move ahead with his complaint that his request to participate in Passover was denied.

Court Rejects Challenges To Foster Care Agency Non-Discrimination Requirement

In Fulton v. City of Philadelphia, (ED PA, July 13, 2018), a Pennsylvania federal district court rejected Catholic Social Services challenges to the requirement that it not discriminate against same-sex couples in foster care placement.  CSS argued that the requirement violates the Free Exercise, Free Speech and Establishment Clauses of the 1st Amendment as well as Pennsylvania's Religious Freedom Act. The court refused to issue a preliminary injunction against enforcement of the requirement, saying in part:

CSS’s compliance with the terms of the Services Contract does not: constrain or inhibit CSS from conduct or expression mandated by its religious beliefs, curtail CSS’s ability to express adherence to CSS’s religious faith, deny CSS a reasonable opportunity to “provide foster care to children,” or compel CSS to engage in conduct or expression that violates a “specific tenet” of CSS’s religious faith....

CSS contends that the provision of certification services for same-sex couples would require CSS to express its religious approval of same-sex relationships in contravention of Catholic teaching about marriage. This is not the case. To illustrate this point, if, for example, CSS were to certify a couple where one spouse is previously divorced, CSS’s certification would not suggest that CSS approved of divorce as a religious matter.

Philadelphia Inquirer reports on the decision.

Bus Ad space Is Limited Forum, Allowing Rejection of Ads On Religious Matters

In Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, (MD PA, July 9, 2018), a Pennsylvania federal district court rejected a constitutional challenge to the policy that excluded controversial public issue advertising on Lackawanna buses. Among other things, the policy, in its latest version, excludes ads

that promote the existence or non-existence of a supreme deity, deities, being or  beings; that address, promote, criticize or attack a religion or religions, religious  beliefs or lack of religious beliefs; that directly quote or cite scriptures, religious text or texts involving religious beliefs or lack of religious beliefs; or are otherwise religious in nature.

The suit was brought by the Freethought Society after its proposed ad was rejected.  In ruling for the Transit Authority, the court held that: 

COLTS’ advertising space is a limited forum and  that COLTS did not violate Freethought’s First Amendment free speech rights when  it refused to display Freethought’s advertisements containing the word “atheists” on COLTS’ buses.

Scranton Times Tribune reports on the decision.

Another Injunction Against ACA Contraceptive Mandate

Following the lead of a number of other courts, this week a Florida federal district court in Ave Maria School of Law v. Azar, (MD FL, July 11, 2018) reopened a case and granted a permanent injunction against enforcing the contraceptive coverage mandate against Ave Maria. The injunction applies to the requirement to provide insurance coverage for sterilization and contraceptive drugs, devices, or procedures to which the Catholic school has religious objections.  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.

Malaysia Swears In First Non-Muslim Chief Justice

According to Benar News, Malaysia this week swore in its first non-Muslim Chief Justice of its highest court, the Federal Court of Malaysia.  The new chief justice is Richard Malanjum, a Christian member of the Kadazandusun tribe from Malaysian Borneo.

Czech Cardinal Sues Over Blasphemous Plays

According to Radio Praha yesterday:

The head of the Czech Roman Catholic Church, Cardinal Dominik Duka, has filed a lawsuit over a pair of theatre plays staged in Brno in May.... The ... plays Our Violence, Your Violence and The Curse included a scene in which Jesus rapes a Muslim woman as well as a depiction of Pope John Paul II in a state of tumescence....

Cardinal Duka says that the theatre show represented an attack on his rights guaranteed by the Charter of Fundamental Rights and Freedoms ... specifically ... freedom of religion and the right to dignity and honour....

Church Autonomy Doctrine Applies To Shaming By Group Teaching Reincarnation

In Hubbard v. J Message Group Corp., (D NM, July 11, 2018), a New Mexico federal magistrate judge dismissed under the church autonomy doctrine defamation, invasion of privacy and intentional infliction of emotional distress claims against JMGC, also known as Companions of Wisdom. The organization promotes reincarnation-based teachings. The court summarizes plaintiff's allegations:

JMGC lures people who are looking for spiritual direction and altruistic involvement.... When prospective members wish to advance their association with JMGC and share details of their personal lives with Defendants, Defendants collectively engage in a process designed to control, isolate, shame, emotionally harm, and take advantage of the prospective members.... Members who dissent or question the leadership’s directives become the targets of “shaming conduct”—meaning that Defendants “collectively disseminate false information coupled with outrageous accusations, in CoW communications, designed solely to cause dissenting members substantial emotional and psychological trauma.” ... Dissenting members are subjected to this “shaming conduct” until they recant their dissent or quit the organization....

Finding that the 1st Amendment requires dismissal, the court said in part:

JMGC/CoW, an organization that exists to promote its reincarnation-based spiritual doctrine and whose membership is required to adhere to its “religious” precepts, is entitled to First Amendment protections against tort claims on par with churches and other religious organizations. That is, ... JMGC/CoW retains exclusive control, protected by the First Amendment, over matters concerning “theological controversy, church discipline, ecclesiastical government, or the conformity of the members of the church to the standard of morals required of them.” ...

As alleged in the Complaint, the conduct giving rise to Plaintiff’s claims originally stemmed from an internal dispute between Plaintiff and the leadership of JMGC prompted by Plaintiff’s “inquiring nature” and her “resistance” to the directives of the leadership. It is evident from the face of the Complaint, however, that JMGC is an authoritarian organization that does not permit dissent or questions regarding its doctrines or leadership. Thus, when she dissented from and questioned the leadership’s directives, to permit Plaintiff to pursue her claim for damages based on Defendants’ having ostracized and defamed her would, in the context of this case, amount to impermissible government interference with Defendants’ right to practice their faith....

The statements and conduct giving rise to Plaintiff’s lawsuit cannot be adjudicated without impermissible intrusion upon Defendants’ right, guaranteed by the First Amendment, to freely exercise their religion. Each of Plaintiff’s claims, if adjudicated in a civil trial, would require the jury (or judge in the role of fact-finder) to resolve questions that are rooted in religion. For example, in order to succeed in her defamation claim or in her false light invasion of privacy claim, Plaintiff would have to prove, among other things that, as a matter of fact, Plaintiff does not: have “a split who is a porn star”; Plaintiff’s soul has not been part of “several sex cults”; and that no aspect of Plaintiff’s soul was sexually or financially “predatory” within JMGC/CoW.

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.