3rd Circuit Will Not Adjudicate Pastor's Breach of Contract Claim

In Lee v. Sixth Mount Zion Baptist Church of Pittsburgh, (3d Cir., Sept. 5, 2018), the U.S. 3rd Circuit Court of Appeals refused to adjudicate a terminated minister's breach of employment contract claim, saying in part:

The Church argues that Lee materially breached the Agreement by failing to provide adequate spiritual leadership, as reflected in decreased church contributions and attendance during Lee’s tenure....

While the amount of church contributions and members is a matter of arithmetic, assessing Lee’s role, if any, in causing decreased giving and reduced membership in the Church requires a determination of what constitutes adequate spiritual leadership and how that translates into donations and attendance—questions that would impermissibly entangle the court in religious governance and doctrine prohibited by the Establishment Clause....

Moreover, parsing the precise reasons for Lee’s termination is akin to determining whether a church’s proffered religious-based reason for discharging a church leader is mere pretext, an inquiry the Supreme Court has explicitly said is forbidden by the First Amendment’s ministerial exception. Hosanna-Tabor....

Becket Fund issued a press release announcing the decision. Pittsburgh Post Gazette reports on the decision.

Senate Passes Act Protecting Religiously Affiliated Community Centers

The U.S. Senate yesterday passed by unanimous consent S. 994: Protecting Religiously Affiliated Institutions Act of 2018 (full text). The bill expands the definition of "religious real property" in 18 USC Sec. 247 to include real property owned or leased by a nonprofit, religiously affiliated organization, such as religiously affiliated community centers.  It also expands the kind of damage, destruction or threats to religious real property that are prohibited to include obstructing a person's free exercise of religious beliefs by threats of force against religious real property. This is intended to cover bomb threats to religiously affiliated organizations such as the wave of bomb threats in 2017 directed at Jewish Community Centers.  The bill also increases punishment in certain cases.  The bill now goes to the House of Representatives which has already passed HR 1730 which is virtually identical to S. 994. AJC issued a press release applauding the Senate's action.

Parents Charged In Death of Son From Forced Religious Fast

In Wisconsin, the parents of two boys were charged with neglect causing the death of one son and great bodily harm to the other resulting from a religious fast that lasted a month and a half.  Wisconsin State Journal reports that the parents who immigrated from Nigeria 12 years ago locked their 15 and 11 year old sons in the house and allowed them only water while they were waiting for a blessing from God. The 15-year old died last Friday, the day which, according to the father, the fast was to end.

Spanish Case Charges Actor's Facebook Post Violated Blasphemy Law

El Pais yesterday reported on a high profile battle in Spain over a prosecution under the country's blasphemy law:

A Madrid court has issued an arrest warrant for Spanish actor and activist Willy Toledo after he twice failed to show up in court, where he had been summonsed after a lawyers’ association accused him of offending religious sentiments.

The Spanish Association of Christian Lawyers filed a complaint with the public prosecutor after Toledo published a post on Facebook in 2017, in which he expressed his indignation over a court probe into three women in Seville who, in 2014, paraded a large model of a vagina through the city streets, in an imitation of a religious procession, dubbing it the “coño insumiso,” or “Insubordinate pussy.”

Homeless People May Not Be Prosecuted For Sleeping Outdoors When Only Option Is Religious Shelter

In Martin v. City of Boise, (9th Cir., Sept. 4, 2018), the U.S. 9th Circuit Court of Appeals held that the ban on cruel and unusual punishment in the 8th Amendment bars a city from criminalizing sleeping outdoors on public property when homeless people have no option to sleep indoors, including where their access to a shelter is conditioned on their participating in religious programs.  Two of the city's three shelters are run by Christian organizations.  The court concluded that

River of Life permits individuals to remain at the shelter after 17 days in the Emergency Services Program only on the condition that they become part of the New Life Discipleship program, which has a mandatory religious focus.... There are also facts in dispute concerning whether the Emergency Services Program itself has a religious component....  A city cannot, via the threat of prosecution, coerce an individual to attend religion-based treatment programs consistently with the Establishment Clause of the First Amendment.... Yet at the conclusion of a 17-day stay at River of Life, or a 30-day stay at City Light, an individual may be forced to choose between sleeping outside on nights when Sanctuary is full (and risking arrest under the ordinances), or enrolling in BRM programming that is antithetical to his or her religious beliefs.

AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Brendan T. Beery, Prophylactic Free Exercise: The First Amendment and Religion in a Post-Kennedy World, (Albany Law Review, Forthcoming).
• Jaclyn L. Neo, Regulation of Religious Communities in a Multicultural Polity, (Forthcoming in Rex Ahdar (ed.), Research Handbook on Law and Religion (Edward Elgar, 2018)).
• Jennifer Koshan & Jonnette Watson Hamilton, Alberta v. Hutterian Brethren of Wilson Colony (Women's Court of Canada), ((2018) 30(2) Canadian Journal of Women and the Law).
• Catherine Hardee, Who's Causing the Harm, (Kentucky Law Journal, Forthcoming).
• Tamir Moustafa, Constituting Religion: Islam, Liberal Rights, and the Malaysian State, (Cambridge University Press, 2018).
• Peter Margulies, The Travel Ban Decision and the Twilight of Judicial Craft: Taking Statutory Context Seriously, (Roger Williams Univ. Legal Studies Paper No. 183 (2018).
• Kyriaki Topidi, Faith-Based Education and Equality: Towards an Education of Prejudice? - The Example of Faith Schools in England, (July 30, 2018).
• Caitlin Carlson & Hayley Rousselle, Report and Repeat: Investigating Facebook's Hate Speech Removal Process, (April 1, 2018).
• Vivien Chen, Law and Society in the Evolution of Malaysia's Capital Market Regulation, (Asian Journal of Law and Society, Forthcoming).
• Vivian Grosswald Curran, The Foreign Sovereign Immunities Act's Evolving Genocide Exception, (UCLA Journal of International Law and Foreign Affairs, Vol. 23, 2019, Forthcoming).

From SmartCILP:

• Martina E. Cartwright, Book, Chapter, and Verse: The Rise and Rise of the Freedom of Conscience Movement Post-Windsor and Obergefell, [Abstract], 23 Cardozo Journal of Law & Gender 39-106 (2016-2017).

Scottish Appeals Court Says Government Did Not Adequately Consider Refugees' Claim of Conversion To Christianity

In TF and MA v. Secretary of State for the Home Department, (Scot. Ct. Sess., Aug. 30, 2018), Scotland's Inner House, Court of Session, held that the Secretary of State and appellate tribunals had failed to adequately consider certain evidence that Iranian asylum seekers had genuinely converted to Christianity after leaving Iran. All the parties agreed that individuals who converted from Islam to Christianity face a risk of persecution of forced to return to Iran. At issue however was:

the status of evidence from church leaders (or others holding positions of responsibility within a church) about the conduct of a person who has begun the process of admission into the church and as to the sincerity of his conversion to Christianity; as to the weight to be given to such evidence; and whether the usefulness of such evidence as a guide to the genuineness of the sur place conversion is undermined by findings that, in relation to other matters, the appellant, the applicant for asylum, has given evidence which is untrue or unreliable and/or may be said to undermine his basic credibility.

Law & Religion UK has more on the decision.

Recent Prisoner Free Exercise Cases

In Streater v. Allen, 2018 U.S. Dist. LEXIS 145087 (ED TX, Aug. 24, 2018), a Texas federal district court dismissed an inmate's complaint that during a two-week lock down he was unable to attend religious services and was denied hot meals for at least a week.

In Ramos v. Malloy, 2018 U.S. Dist. LEXIS 145147 (D CT, Aug. 27, 2018), a Connecticut federal district court dismissed, with leave to file an amended complaint, an inmate's lawsuit claiming he did not receive a book about religion, even though copies were mailed to him twice.

In Cordero v. Kelley, 2018 U.S. Dist. LEXIS 145804 (D NJ, Aug. 22, 2018), a New Jersey federal district court allowed an inmate to move ahead with claims that religious tracts he purchased to give his family and friends were confiscated.

In Buie v. Mitchell, 2018 U.S. Dist. LEXIS 146159 (ED WI, Aug. 28, 2018), a Wisconsin federal district court dismissed an inmate's lawsuit that complained about the manner of preparation of certain kosher meals.

In Guilliot v. Harmon, 2018 U.S. Dist. LEXIS 145095 (ND TX, Aug. 27, 2018),  Texas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 146273, July 25, 2018) and permitted a Wiccan inmate who was serving a sentence for receiving child pornography to move ahead with his claim that his rights under RFRA were violated when he was denied access to a Rider-Waite Tarot deck — a tarot deck that includes artistic depictions of non-sexualized nudity.

In Galvan v. Sterrett, 2018 U.S. Dist. LEXIS 146339 (SD IL, Aug. 28, 2018), an Illinois federal district court allowed a Catholic inmate to move ahead with his complaint that his permission to attend Protestant religious services as well as Catholic ones was revoked.

In Gaston v. Marean, 2018 U.S. Dist. LEXIS 146578 (ED CA, Aug. 28, 2018), a California federal district court held that a Ratafarian inmate's additional assertions regarding the impact of cutting off his dreadlocks would allege a substantial burden on religious exercise, contrary to a magistrate's original conclusion (see prior posting). Thus the court provided the opportunity to file an amended complaint.

In Loufer v. Carr, 2018 U.S. Dist. LEXIS 147006 (D KA, Aug. 29, 2018), a Kansas federal district court gave an inmate 30 days to show why his sketchy complaint regarding a religious diet should not be dismissed.

In Masek v. Chastain, 2018 U.S. Dist. LEXIS 148013 (ED MO, Aug. 30, 2018), a Missouri federal district court dismissed a complaint by plaintiff, who is civilly detained after being found not guilty by reason of insanity for the murder of his father, that he was deprived of a copy of the Bible for one week.

In Wright v. Lassiter, 2018 U.S. Dist. LEXIS 148188 (WD NC, Aug. 30, 2018), a North Carolina federal district court allowed a Rastafarian inmate to move ahead with claims of confiscation of religious books and items, and forced removal from a vegan diet.

In Helm v. Allen, 2018 U.S. Dist. LEXIS 149080 (WD KY, Aug. 30, 2018), a Kentucky federal district court allowed an inmate to move ahead with his complaint that he was denied a Catholic Bible and mail from the Dtnamic Catholic Institute.

Court Rejects Claim That Church Board Improperly Appointed Interim Pastor

In Leggett v. Moore, 2018 IL App (1st) 171101-U (IL App., Aug. 28, 2018), an Illinois appellate court held that the First Amendment does not prevent a court from deciding whether a church has violated it own bylaws when that does not raise issues of church doctrine. Plaintiffs alleged that True Zion church formed a new board of directors without complying with church bylaws, and improperly selected a new interim pastor. They contend that the church overseer was the person entitled to appoint an interim pastor, even though there is no mention of this in the bylaws. The court dismissed their claim, holding that "the duly elected board of directors affirmed the church bylaws and ratified the actions of the interim pastor during meetings at which plaintiffs attended but abstained from voting...."

7 Indicted For Fraud In Payments for Internet Equipment For Yeshivas

Last Wednesday, the U.S.. Attorney's Office for the Southern District of New York announced the indictment (full text) of seven individuals on wire fraud and conspiracy to commit wire fraud charges growing out of federal payments intended to fund computer equipment for Orthodox Jewish yeshivas. The indictment charges that for many years, defendants billed the federal E-Rate program for millions of dollars in equipment that was not furnished, or was furnished at inflated prices and often was not needed.  The federal program is intended to provide schools and libraries serving economically disadvantaged children with internet access. According to a Forward report on the indictment: "Some of the internet services paid for by E-Rate had been requested by schools that ban internet use for religious reasons."

Street Preacher's Disturbing-the-Peace Citation Was Valid

In Roy v. City of Monroe, (WD LA, Aug. 29, 2018), a Louisiana federal district court dismissed a street preacher's suit challenging the constitutionality of the city of Monroe's disturbing-the-peace ordinance and the citation he received for violating it. The court described the conduct that led to the citation and summons:

The Corner Bar is known as a gathering spot for homosexuals. Roy believes that homosexuality is a sin. He preaches against homosexuality, as well as drinking alcohol, the use of drugs, fornication, and other topics.... On this night, they gathered at a telephone pole across the street from the Corner Bar. Roy was wearing an orange jump suit to demonstrate that he is a “prisoner of Christ” and to pose the questions to others, “Whose prisoner are you?”. At various times, he was also carrying a sixfoot cross made of cedar 4 x 4s. He normally approaches people and says something short to “startle” them or “stop” them. He cannot “afford to” be concerned about other people’s feelings because it might alter his message. Roy tells people that they are “going to Hell,” uses the terms “homosexual” and “whore,” and will tell people that “their father is the devil.” He raises his voice, shouts, and uses “strong Biblical language” to convey his message.

RLUIPA Challenges To Zoning Decision On Catholic Church Must Go To Trial

In Roman Catholic Archdiocese of Kansas City in Kansas v. City of Mission Woods, (D KA, Aug. 30, 2018), a Kansas federal district court refused to grant summary judgement for either party on most of the RLUIPA claims by a Catholic church that sought to convert a single family house into a meeting house. The city of Mission Woods had denied zoning approval for the project.

Protestant Navy Chaplains Lose Discrimination Lawsuit

In In re Navy Chaplaincy, (D DC, Aug. 30, 2018), a D.C. federal district court granted summary judgment for the U.S..Navy in a long-running suit by non-liturgical Protestant Navy chaplains alleging discrimination against them. The court summarized the facts and its holding:

Plaintiffs’ primary claim is that, until 2002, the Navy maintained an unconstitutional policy of placing at least one Roman Catholic chaplain on every selection board, which resulted in Catholic chaplains being promoted at a disproportionately high rate compared to other religious groups. Plaintiffs also challenge a host of other allegedly unconstitutional selection-board policies and procedures—some of which, plaintiffs claim, continue to this day. Finally, plaintiffs challenge a statute that privileges selection-board deliberations from disclosure in litigation, arguing that it is unconstitutional as applied to their case because it denies them access to information that they need to prove their constitutional claims. To redress these wrongs, plaintiffs—each of whom was either passed over for promotion or selected for early retirement by a board that was allegedly tainted by one or more of the challenged procedures—seek an order directing the Navy to reinstate them to active duty, if necessary, and to convene new, properly constituted selection boards to reconsider the personnel actions taken against them....

To a considerable extent, the result in this case is dictated by prior rulings.... Consequently, there is little left to do here but to apply those standards ... which, as explained below, does not even come close to showing the degree of discrimination required for plaintiffs’ challenges to succeed. Likewise, this Court has already twice considered and twice rejected plaintiffs’ constitutional challenge to the statutory privilege for selection-board proceedings...

Supreme Court Refuses Emergency Injunction In Catholic Social Services Foster Care Case

In a one-sentence order yesterday, the U.S. Supreme Court refused to grant an emergency injunction in Fulton v. Philadelphia.  In the case, a Pennsylvania federal district court rejected Catholic Social Services challenges to Philadelphia' requirement that it not discriminate against same-sex couples in foster care placement. Catholic Social Services wanted the Supreme Court to allow it to continue foster care placements while it appealed the city's intake freeze to the 3rd Circuit. Justices Thomas, Alito and Gorsuch would have granted the injunction. SCOTUSblog reports on the court's action

Excluding Non-Theists As Legislative Guest Chaplains Violates Establishment Clause

In Fields v. Speaker of the Pennsylvania House of Representatives, (MD PA, Aug. 29, 2018), a Pennsylvania federal district court held that the guest chaplain policy of Pennsylvania's House of Representatives violates the Establishment Clause.  The legislative chamber's policy allows invocations to be given only by  individuals who adhere to, or are members of a religious organization that subscribes to, a belief in “God” or a “divine” or “higher” power. The House Speaker and Parliamentarian refused to permit a non-theist to serve as a guest chaplain to deliver an invocation. The court said in part:

That history has tolerated the natural prevalence of theistic legislative prayer is hardly evidence that the Framers would abide deliberate and categorical exclusion of nontheists. Accordingly, the House’s prayer practice finds no refuge in history and tradition....

In light of this nation’s vastly diverse religious tapestry, there is no justification to sanction government’s establishment of a category of favored religions—like monotheistic or theistic faiths—through legislative prayer.

The court also held:

The House’s pre-2017 opening invocation practice, which coerces visitors to stand during the opening prayer and thereby participate in a religious exercise, likewise offends the Establishment Clause.

Americans United issued a press release announcing the decision.

Court Will Not Order Group's Christian Flag Displayed On City Flag Pole

In Shurtleff v. City of Boston, (D MA, Aug. 29, 2018), a Massachusetts federal district court refused to grant a preliminary injunction against the city's policy of refusing to fly non-secular flags from City Hall flagpoles.  Plaintiffs sought to fly a "Christian flag” from the city's pole in conjunction with a Constitution Day and Citizenship Day event.  Rejecting plaintiffs' free speech argument, the court said in part:

If the flags are government speech, as Defendants assert, “then the Free Speech Clause has no application” and the City may “select the views that it wants to express.” ... In contrast, if the flags are private speech displayed in a limited public forum, as Plaintiffs argue, the restriction on non-secular flags must be reasonable and viewpoint neutral.... This Court concludes that the selection and display of the flags on the City flagpole constitute government speech. Moreover, even if they did not constitute government speech, the Court finds that the City’s restriction on non-secular flags satisfies the constitutional requirements for limitations on speech in a limited public forum....

The City’s policy is ... reasonable based on the City’s interest in avoiding the appearance of endorsing a particular religion and a consequential violation of the Establishment Clause.... Moreover, ... [in suggesting] the opportunity to conduct their event on City Hall Plaza, fly a secular flag on the City flagpole or display the Christian flag on City Hall Plaza but not on the City flagpole, the City has demonstrated reasonableness and that it does not seek to silence Plaintiffs. 

The court also rejected Establishment Clause and Equal Protection challenges. Boston Globe reports on the decision.

UN Report Says Investigate Myanmar Generals for Genocide

On Monday, the United Nations Independent International Fact-Finding Mission on Myanmar released a Report (full text) recommending that Myanmar’s top military generals must be investigated for genocide, crimes against humanity, and war crimes directed at the minority Rohingya people.  CNN has more on the report.

Settlement Reached In D.C. Mikveh Voyeurism Case

As reported by yesterday's Washington Post, a $14.25 million settlement has been reached in the class action lawsuit growing out of the secret taping by Rabbi Barry Freundel of women using the mikveh (ritual bath) affiliated with Freundel's synagogue. The spying took place between 2005 and 2014. Under the settlement, which still must be approved by the court, each woman who was videotaped will receive at least $25,000. Other women who used the mikvah may receive $2.500. Defendants' insurance company will pay the settlement. Freundel was sentenced in 2015 to six and one-half years in prison.

Amicus Briefs Filed With SCOTUS In Case of Funeral Home's Firing of Transgender Employee

Several amicus briefs have been filed with the U.S. Supreme Court urging the Court to grant certiorari in R.G. & G.R. Harris Funeral Homes Inc. v. EEOC. Links to the briefs are available at SCOTUSblog.  In the case, the U.S. 6th Circuit Court of Appeals, rejecting the employer's religious freedom defense, held that a Michigan funeral home violated Title VII when it fired a transgender employee. (See prior posting.) Townhall has more on these developments.

8th Circuit: Satanic Temple Member Lacks Standing To Challenge Abortion Restrictions

In Satanic Temple v. Parson, (8th Cir., Aug. 28, 2018), the U.S. 8th Circuit Court of Appeals affirmed the dismissal (see prior posting) of a challenge to Missouri's abortion restrictions. The court said in part:

Mary Doe is a member of The Satanic Temple and a resident of the state of Missouri. After becoming pregnant, she sought an abortion in St. Louis, Missouri. She complied with certain state-mandated procedures, which the complaint alleges constituted direct and unwelcome personal contact with religion, in violation of the Free Exercise and Establishment Clauses. After receiving the abortion, she filed this lawsuit....

Here, Mary Doe was not pregnant at the date the action was initiated and seeks only prospective relief.... Mary Doe therefore lacks constitutional standing. Additionally, although “[p]regnancy provides a classic justification for a conclusion of nonmootness,” the doctrine does not apply here because she did not first establish standing.

Courthouse News Service reports on the decision.