Report Released On 2016 Global Restrictions On Religion

Last week, the Pew Research Center on Religion & Public Life released its ninth annual study of global restrictions on religion. The 125-page report (full text) is titled Global Uptick In Government Restrictions on Religion in 2016.  It highlights: "Nationalist parties and organizations played an increasing role in harassment of religious minorities, especially in Europe."  According to the report:

The share of countries with “high” or “very high” levels of government restrictions – that is, laws, policies and actions by officials that restrict religious beliefs and practices – rose from 25% in 2015 to 28% in 2016. This is the largest percentage of countries to have high or very high levels of government restrictions since 2013, and falls just below the 10-year peak of 29% in 2012.

Meanwhile, the share of countries with “high” or “very high” levels of social hostilities involving religion – that is, acts of religious hostility by private individuals, organizations or groups in society – remained stable in 2016 at 27%.

State Department Hosts First-Ever Ministerial To Advance Religious Freedom

Yesterday was the first day of the U.S. State Department's 3-day Ministerial to Advance Religious Freedom.  RNS reports that U.S. Ambassador-at-Large for International Religious Freedom Sam Brownback opened the Ministerial at the State Department, urging the 350 conference participants from 80 countries to work together to advance religious freedom. The faiths represented at the State Department conference include Muslims, Jews, Christians, Buddhists, Hindus, Sikhs, Baha’is, and Yazidis.  The State Department describes the agenda of this first-ever Ministerial:

On July 24, we will equip and empower civil society organizations, including organizations working on religious freedom, to understand better how to access U.S. financial support for their efforts...

On July 25, members of civil society groups, including religious leaders and survivors of religious persecution, will convene to tell their stories, share their expertise, and ultimately unite on a path to greater religious freedom in our societies....

On July 26, government and international organization representatives will participate in plenary sessions focused on: (1) identifying global challenges to religious freedom, (2) developing innovative responses to persecution on the basis of religion, and (3) sharing new commitments to protect religious freedom for all.....

Here is the full schedule of panels. Various side events are also scheduled.

UPDATE: As reported by Blog from the Capital, the Summit ended with the Potomac Declaration and a Plan of Action. Critics contend that the Summit accomplished little.

Challenge To School's Transgender Policy Is Rejected

In Parents for Privacy v. Dallas School District No. 2, (D OR, July 24, 2018), an Oregon federal district court in a 56-page opinion rejected an array of challenges to a school district's policy that allows transgender students to use restrooms, locker rooms, and showers that match their gender identity rather than
their biological sex assigned at birth.  Plaintiffs alleged that the policy violates the Administrative Procedure Act, the right to privacy, Title IX, Oregon state law, parents’ rights to direct the education and upbringing of their children, and the First Amendment and RFRA. Responding to these claims, the court said in part:

... [H]igh school students do not have a fundamental privacy right to not share school restrooms, lockers, and showers with transgender students whose biological sex is different than theirs. The potential threat that a high school student might see or be seen by someone of the opposite biological sex while either are undressing or performing bodily functions in a restroom, shower, or locker room does not give rise to a constitutional violation....

It is within Parent Plaintiffs’ right to remove their children from Dallas High School if they disapprove of transgender student access to facilities. Once the parents have chosen to send their children to school, however, their liberty interest in their children’s education is severely diminished....

In this case, the law is neutral and generally applicable with respect to religion. There are no allegations that District forced any Plaintiff to embrace a religious belief, nor does the Plan punish anyone for expressing their religious beliefs. In any event, Plaintiffs do not have standing to bring this claim.

Teacher May Sue Catholic School For Pregnancy Discrimination

In Crisitello v. St. Theresa School, (NJ App., July 24, 2018), a New Jersey state appellate court reversed a trial court's dismissal of a discrimination suit brought against a Catholic parochial school by a former preschool lay teacher who had been fired for engaging in premarital sex. The teacher was terminated for violating the Church's ethical standards when it was found that she was pregnant and unmarried. Plaintiff sued under New Jersey's Law Against Discrimination, claiming pregnancy discrimination. The court said in part:

To be clear, in this case, plaintiff does not raise any challenge to defendant's religious doctrines or its right to specify a code of conduct for its employees based on that doctrine. Rather, she seeks an adjudication of her claim that she has been singled out for application of that doctrine as a pretext for impermissible discriminatory reasons. If proven, such conduct by defendant would be a violation of secular law protecting against discrimination....

In a case involving the firing of a pregnant employee, evidence of how male employees were treated is particularly useful in determining whether unmarried pregnant women are treated differently. Absent evidence that men are treated the same way as women who are terminated for engaging in premarital sex, a religious institution violates LAD because if "'women can become pregnant [and] men cannot,' it punishes only women for sexual relations because those relations are revealed through pregnancy." 

Street Preacher Denied Preliminary Injunction Against Trespass Policy of Sports Arena

In Lacroix v. Lee County, Florida, (MD FL, July 23, 2018), a Florida federal district court denied a preliminary injunction sought by a street preacher who was not permitted to preach on the premises of a county-owned sports arena which was hosting a concert. Plaintiff claimed that the Lee County Special Events Permitting Ordinance, and the trespass policy enforced in connection with special events on county property, violate his free speech and free exercise rights. The court concluded that plaintiff's pleadings failed to show that he meets various prerequisites for standing, and that he does not face imminent irreparable harm.

Recent Prisoner Free Exercise Cases

In Rutledge v. Lassen County Jail, 2018 U.S. Dist. LEXIS 120152 (ED CA, July 17, 2018), a California federal magistrate judge dismissed with leave to amend an inmate's claim that he is a "follower of Lucifer" and that jail staff have urged him to "pray or change [his] religious beliefs".

In Cucchiara v. Auburn Correctional Facility, 2018 U.S. Dist. LEXIS 120612 (ND NY, July 19, 2018), a New York federal district court dismissed an inmate's complaint regarding "fraudulent ticketing" of religious practices, destruction and confiscation of religious property including voodoo dolls, and tampering with religious food, oils and balms.

In McLeod v. Smith, 2018 U.S. Dist. LEXIS 121134 (SD NY, July 18, 2018), a New York federal district court dismissed a Muslim inmate's complaint that he was prevented from attending Jumah services on one occasion.

In Jackmon v. New Jersey Department of Corrections, 2018 U.S. Dist. LEXIS 121262 (D NJ, July 20, 2018), a New Jersey federal district court allowed an inmate to move ahead with his complaint that designation of Nations of Gods and Earths as a security threat group has deprived him of any Nations religious observances, possession of Nations literature, and association with other Nations members.

In Kanatzar v. Cole, 2018 U.S. Dist. LEXIS 121488 (D KA, July 20, 2018), a Kansas federal district court dismissed an inmate's claim that his kosher meals were not prepared in accordance kosher requirements.

Cert. Filed In Funeral Home's Firing of Transgender Employee

A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC, (cert. filed 7/20/2018).  In the case, the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. The court, rejecting the employer's religious freedom defense, held that the employee was illegally fired because of her failure to conform to sex stereotypes. ADF issued a press release announcing the filing of the lawsuit.

Michigan AG and Civil Rights Commission At Odds Over Coverage of LGBTQ Discrimination

In May, the Michigan Civil Rights Commission issued an Interpretive Statement declaring that the protection against discrimination because of sex in the state's Elliott Larsen Civil Rights Act includes protection against discrimination on the basis of sexual orientation and gender identity.  On July 20, Michigan's Attorney General Bill Schuette issued Opinion No. 7305 concluding that the Civil Rights Commission's interpretation "is invalid because it conflicts with the original intent of the Legislature as expressed in the plain language of the Act, and as interpreted by Michigan’s courts." The Opinion elaborates:

The word “sex” was understood in 1976, when ELCRA was enacted, to refer to the biological differences between males and females, not to refer to the concepts of sexual orientation or gender identity.

Yesterday the Civil Rights Commission issued a press release taking issue with the Attorney General and reaffirming its earlier Interpretive Statement, saying in part:

The Michigan Civil Rights Commission is an independent, constitutionally created and established body.... The Commission is not bound by the opinion of the Attorney General.

Establishment Clause Challenge To New York's Carve Out of Standards For Yeshivas

A lawsuit was filed in a New York federal district court yesterday challenging the so-called Felder Amendment to New York state's 2018 Budget Bill. The Amendment, tailored to apply only to Orthodox Jewish non-public schools, allows lower secular education standards in such schools.  The complaint (full text) in Young Advocates for Fair Education v. Cuomo, (ED NY, filed 7/23/2018), contends that the Felder Amendment violates the Establishment Clause by aiding ultra-Orthodox Jewish non-public schools and entangling the government with religion. Wall Street Journal reports on the lawsuit. [Thanks to Steven H. Sholk for the lead.]

Church of Scientology Settles Lawsuit

AP reports that the Church of Scientology yesterday settled a lawsuit that had been brought against it in California state court by former church member Laura Ann DeCrescenzo.  Plaintiff, who began to volunteer for the Church at age 6 or 7 and later became a member of its elite Sea Org, alleges that she was forced to work long hours before she was a teen and was forced to have an abortion at age 17.  (See prior posting.) The terms of the settlement are confidential.

New York AG Denied Injunction Against Anti-Abortion Protesters

In People of the State of New York v. Griepp, (ED NY, July 20, 2018), a New York federal district court, in a 103-page opinion, refused to grant the New York Attorney General a preliminary injunction against anti-abortion protesters who have been clashing with volunteer clinic escorts outside a Queens medical center.  The suit alleged that the protesters violated the federal Freedom of Access to Clinic Entrances Act (FACES), the New York Clinic Access Act (NYSCAA) and a similar New York City provision. The court describes the coverage of the statutes:

Using essentially identical language, both FACE and NYSCAA provide penalties for those who (1) by force, threat of force, or physical obstruction, (2) intentionally injure, intimidate, or interfere with a person, or attempt to do the same, (3) “because that person is or has been, or in order to intimidate such person or any other person or any class of persons from, obtaining or providing reproductive health services.” 18 U.S.C. § 248(a)(1); see N.Y. Penal Law § 240.70(1)(a)–(b). NYCCAA prohibits a host of similar activities that prevent access to reproductive health care facilities. N.Y.C. Admin. Code § 8-803(a).

After a lengthy review of the evidence, the court concluded that protesters had not violated any of these provisions. For example, it said:

[T]he OAG has introduced evidence that the protestors sometimes continued attempting to engage with a person who asked to be left alone and that the protestors sometimes attempted to engage people who were not receptive to a different protestor’s overtures. Although such conduct can be circumstantial evidence of an intent to harass, annoy, or alarm, it does not establish that intent here. The interactions on the sidewalk outside Choices were generally quite short, and there is no credible evidence that any protestor disregarded repeated requests to be left alone over an extended period or changed his or her tone or message in response to requests to be left alone in a way that suggested an intent to harass, annoy, or alarm. The OAG has failed to show that any defendant had the intent to harass, annoy, or alarm a patient, companion, or escort; thus, it has failed to show that any defendant has violated NYCCAA, as interpreted by the OAG.

A word of caution—this decision should not embolden the defendants to engage in more aggressive conduct. In a few instances noted, several of the defendants’ actions came close to crossing the line from activity protected by the First Amendment to conduct prohibited by NYCCAA. Engaging in concerted activity that suggests an intent to annoy rather than to persuade not only violates the law, but also would seem to be contrary to defendants’ stated objectives. Voluntarily discontinuing the practice of speaking to patients who have affirmatively asked to be left alone not only would evidence the defendants’ good will, but also would lessen the likelihood of future litigation directed toward their protest activities.

Courthouse News Service reports on the decision.

Amish Get Remand For More Consideration of Religious Freedom Defenses In Permit Case

In Sugar Grove Township v. Byler, (PA Commnwlth. Ct., July 20, 2018), a 7-judge panel of the Pennsylvania Commonwealth Court remanded to the trial court a complaint against a member of the Old Order Amish who, it was contended, failed to obtain required permits under the Township's Privy Ordinance, and violated the Sewage Facilities Act and the Uniform Construction Code.  The trial court concluded that community safety concerns override religious objections. The appeals court said:

The trial court substantiates this conclusion by vaguely referencing testimony of an environmental hazard in the nature of high levels of E. coli bacteria being found in the area, without any explanation of how Appellant’s purported violations contributed to or exacerbated this hazard. Moreover, the trial court ignores additional protections provided by the Religious Freedom Protection Act....

The matter is remanded to the trial court to issue a new opinion considering the issue of the religious freedom protections of the First Amendment to the United States Constitution and Article I, section 3 of the Pennsylvania Constitution as well as the Religious Freedom Protection Act.

AP reports on the decision.

Canadian Court Invalidates Limits On Charities' Lobbying Expenditures

CBC reports on a July 16 decision by the Ontario Superior Court of Justice which invalidated provisions of Canada's Income Tax Act which limit expenditures for political lobbying activities by charities to 10% of its resources. (Background.)  According to CBC:

The decision by Justice Edward Morgan of the Ontario Superior Court of Justice is a reprieve for the tiny Ottawa group that launched the challenge — Canada Without Poverty — which has been under formal notice of losing its charitable status since 2016....

Morgan's decision does not alter the prohibition against charities engaging in partisan activities — that is, supporting particular candidates or political parties. Charities have not challenged that section of the Act....

But he did rule the 10 per cent rule was an arbitrary and unjustified infringement of freedom of expression as guaranteed in Section 2 of the Charter of Rights and Freedoms. And he said Canada Without Poverty needs to engage in political activity, such as buttonholing ministers and encouraging Canadians to contact their MPs, to carry out its charitable purpose.

Recent Articles of Interest

From SSRN:

• Adam Chodorow, Amicus Curiae Brief of Tax Law Professors in Support of Appellees, (June 22, 2018).
• Luke Beck, A Question of Characterisation: Can the Commonwealth Facilitate the Imposition of Religious Observances?, (Monash University Law Review, Vol 43, No 3, pp. 828-844, 2018).
• Ashwani Malhotra, Personal Laws and the Constitution: Revisiting Narasu Appa Mali, (June 22, 2018).
• Jessica A. Clarke, Explicit Bias, (Northwestern University Law Review, Vol. 113 (2018 Forthcoming)).
• Giri Taufik, Proportionality Test in the 1945 Constitution: Limiting Hizbut Tahrir Freedom of Assembly, (Constitutional Review Journal, Vol. 4, Number 1, May 2018).
• Nicolas Duquette, Top Donors and the Rising Concentration of Giving in the United States, 1960–2012, (June 19, 2018).
• Allison Anna Tait, Keeping Promises and Meeting Needs: Public Charities at a Crossroads, (Minnesota Law Review, Vol. 102, No. 5, 2018).

Neither Side Gets Summary Judgment In Hawaii Religious Zoning Dispute

In Spirit of Aloha Temple v. County of Maui, (D HI, July 20, 2018), a Hawaii federal district court denied summary judgment motions filed by both parties in a RLUIPA lawsuit challenging denial of a special use permit to build a church and hold religious events (particularly weddings) on land zoned for agricultural use. the court held that significant factual questions remain to be resolved as to the Temple's substantial burden claim, religious discrimination and equal terms claims, as well as its 1st and 14th Amendment assertions. The Temple promotes the practice of "Integral Yoga."

Recent Prisoner Free Exercise Cases

In Shepard v. Allison, 2018 U.S. Dist. LEXIS 117425 (ED CA, July 13, 2018), a California federal magistrate judge dismissed, with leave to file an amended complaint, an inmate's claim that his request to change his name for religious reasons was denied.

In Croghan v. Branion, 2018 U.S. Dist. LEXIS 117387 (ED CA, July 12, 2018), a California federal magistrate judge dismissed, with leave to file an amended complaint, an inmate's claim that he was not allowed to wear a religious artifact.

In Turner v. Schofield, 2018 U.S. Dist. LEXIS 117673 (WD TN, July 16, 2018), a Tennessee federal district court dismissed a Muslim inmate's complaint that he was not issued passes to attend religious services when he used his Muslim name rather than his committed name, as well as his complaint about halal meals.

In Dorman v. Aronofsky, 2018 U.S. Dist. LEXIS 118161 (SD FL, July 13, 2018), a Florida federal magistrate judge recommended that a Jewish inmate be permitted to move ahead with his complaint for an injunction growing out of his inability to sign up for and participate in Passover diet and services.

In Jones v. West, 2018 U.S. Dist. LEXIS 118633 (ED WI, July 17, 2018), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint about a policy change that limited dissemination of notice about multi-day religious meal accommodation and congregate meal dates, and his complaint about being denied inclusion on the Ramadan bagged meal program.

In Young v. Smith, 2018 U.S. Dist. LEXIS 119068 (SD GA, July 17, 2018), a Georgia federal magistrate judge held that a Native American inmate should be permitted to move ahead with his complaint that he was prohibited from smoking kinninnick in his weekly prayer ceremonies, that previously approved sacred items were confiscated, that his prayer practices were interfered with, that he was only allowed a Bible or Qur'an (not Native American sacred books) while in Tier II confinement, and his complaint of religious retaliation.

Israel's First Enforcement of Law Barring Jewish Weddings Outside Official Rabbinate

Haaretz reports that for the first time Israeli police have attempted to enforce a 2013 law that prohibits rabbis from performing Jewish weddings other than through the official Rabbinate.  Offenses carry a sentence of up to 6 months for conducting the ceremony and up to two years in prison for failing to register it.  Israeli police on Thursday booked Rabbi Dov Haiyun of Moriah Congregation in Haifa who was ordained by the Conservative movement, on charges of conducting a marriage ceremony of a person who is not eligible to be married under Jewish law. The complaint against him was filed by the Haifa Rabbinical Court.

UPDATE: Times of Israel (July 22) reports that the attorney general’s office, responding to widespread criticism of the detention, has now instructed police to cancel the summons against Rabbi Haiyun.

Suit Challenges Restriction On Farm's Use For Religious Activities

Yesterday's Sewickley Herald reports on a lawsuit filed in Pennsylvania federal district court on Wednesday by owners of an historic farm who are using their property to host Bible study, a worship night, religious retreats and fundraisers.  Last October, Sewickley Heights served a cease and desist order on the farm's owners, claiming that they need a zoning variance in order to host the religious activities.  The owners claim that the cease and desist order violates their rights under the First Amendment and RLUIPA.  Sewickley Heights is a small upscale residential community of estates built on rolling hills and meadows.

No Free Exercise Violation In Refusal To Adjourn Trial For Defendant's Holy Day

In an opinion which sets out few of the facts involved, a New York state appeals court held that the Free Exercise rights of a robbery defendant were not infringed when the trial court denied his request to adjourn court proceedings from Thursday until Monday to accommodate his religious beliefs and practices.  The unanimous decision or the Appellate Division is People v. Webb, (NY App., July 18, 2018).

Israel Passes Watered-Down Version of Controversial Jewish Nation-State Bill

As reported by Haaretz, Israel's Knesset yesterday passed a watered-down version of the controversial Jewish Nation-State Bill (full text).  The Bill, passed as a Basic Law, will have quasi-constitutional status. The new law defines Israel as "the national home of the Jewish people."  A provision that originally was aimed at allowing the creation of Jewish-only communities in Israel was modified to read:

The state views the development of Jewish settlement as a national value and will act to encourage and promote its establishment and consolidation.

In a provision which apparently attempts to prevent government encouragement of Reform and Conservative branches of Judaism within Israel, the law provides:

The state shall act within the Diaspora to strengthen the affinity between the state and members of the Jewish people.

Among various other provisions, the bill establishes the Sabbath and Jewish festivals as days of rest in the country.