Religion Clause

Thursday, November 22, 2018

DOJ Files Statement of Interest In Church's Challenge To Limits On Use of Civic Center

As previously reported, in August a suit was filed in a South Carolina federal district court against Edisto Beach challenging the Town's rule change that prohibits renting space in the town's Civic Center for religious worship services. Now the lawsuit has attracted the attention of the Justice Department. On Tuesday, DOJ filed a Statement of Interest (full text) in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, arguing in part:

... [T]he Town’s legally erroneous “concerns” about Establishment Clause liability turn First Amendment jurisprudence on its head: the First Amendment prohibits the content-based and viewpoint-based restrictions on protected speech that the Town seeks to permit and permits religious worship services the equal access to government facilities that the Town seeks to prohibit.

Charleston Post and Courier reports on developments.

Court Bars Enforcement of Trump's Limitation on Asylum Seekers

In East Bay Sanctuary Covenant v. Trump, (ND CA, Nov. 19, 2018), a California federal district court issued a temporary restraining order against implementation of a Presidential Proclamation and implementing rule that allow asylum to be granted only to refugees who cross the border at a designated port of entry. 8 USC Sec. 1158(a) provides:

Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival ...), irrespective of such alien’s status, may apply for asylum....

Focusing on this section and on treaty obligations, the court said in part:

The rule barring asylum for immigrants who enter the country outside a port of entry irreconcilably conflicts with the INA and the expressed intent of Congress. Whatever the scope of the President’s authority, he may not rewrite the immigration laws to impose a condition that Congress has expressly forbidden.

A hearing on whether a preliminary injunction should issue in the case was set for Dec. 19. Washington Post reports on the decision. The decision led to an unusual war of words between President Trump and Chief Justice John Roberts.

9th Circuit: Animal Rights Group Lacks Standing To Challenge Kapparot Practices

In United Poultry Concerns v. Chabad of Irvine, (9th Cir., Nov. 20, 2018), the U.S. 9th Circuit Court of Appeals held that an animal rights group lacks standing to sue a Jewish religious organization for violating California's Unfair Competition Law. The suit challenged Chabad's sponsoring of kapparot -- an atonement ritual carried out before Yom Kippur involving the use and slaughter of live chickens. The district court had reached the merits of the claim and had held that the acceptance of a donation in connection with the performance of religious ritual is not covered by the state's Unfair Competition Law. (See prior posting.) The 9th Circuit, by contrast, held that plaintiff was not injured by Chabad's actions and so lacks Article III standing. It vacated the district court's judgment and ordered the case dismissed for lack of jurisdiction. Metropolitan News-Enterprise reports on the decision.

Wednesday, November 21, 2018

Court Invalidates Mississippi's Restrictive Ban On Abortions

In Jackson Women's Health Organization v. Currier, (SD MS, Nov. 20, 2018), a Mississippi federal district court held unconstitutional a recently enacted Mississippi statute that prohibits most abortions after 15 weeks gestation. The court said in part:

[T]he real reason we are here is simple. The State chose to pass a law it knew was unconstitutional to endorse a decades-long campaign, fueled by national interest groups, to ask the Supreme Court to overturn Roe v. Wade.

This Court follows the commands of the Supreme Court and the dictates of the United States Constitution, rather than the disingenuous calculations of the Mississippi Legislature.

Bustle reports on the decision.

2 Philadelphia Police Officers Claim Anti-Semitic Harassment

Two Philadelphia police officers filed suit on Monday against the Philadelphia Police Department and Department supervisors alleging the creation and sanctioning of a racist, anti-Semitic and anti-Jewish environment. The complaint (full text) in Gonzalez v. City of Philadelphia, (ED PA, filed 11/19/2018) seeks damages for harassment, discrimination and hostile work environment in violation of 42 USC Secs. 1981, 1983 and 1985. WHYY News further summarizes the complaint:

The federal civil rights lawsuit claims an array of abuse — that the officers were not given time off to celebrate Jewish holidays, that a Nazi “SS” symbol and a German phrase meaning “skull and crossbones” were scratched onto their lockers, and that a police patrol car was marked with the Star of David with the words “Hebrew Hammer.”

Civil rights lawyers Brian Mildenberg, who is representing the officers, said those acts were intended to “scare and harass” Reznik, a Jewish immigrant born in Russia who is a 12-year veteran of the force.

Pastor Sues To Access Homeless Encampment

The Episcopal Diocese of Olympia reports on a lawsuit filed in a Washington federal district court on Monday against the city of Aberdeen, Washington by an Episcopal priest and two others over access to a homeless encampment. The city has purchased the land and intends to clear it, but in the meantime is requiring anyone entering the site to obtain a permit. Rev. Sarah Monroe, who was denied a permit, explains the lawsuit:

My permit to visit this encampment was denied by the city on the grounds that I did not provide enough detail, or a schedule, or a clear list of what I intend to do during my visits. I am a priest. I have been pastoring the people in this camp for five years. I do everything from drive people to the hospital, to prayer, to taking people to social service appointments, to performing last rites when people die here. These essential pastoral duties do not happen on a schedule, as any member of the clergy can attest. I have continued to visit people, even though I have been denied a permit, and am petitioning the court to prevent the city from arresting me.

Homeless people have a constitutionally protected right to freedom of religious expression. I have a constitutionally protected right to my freedom of religious expression, which includes serving the poor and the sick and the hungry.

California Appeals Court OK's Repeal of Belief Exemption To Immunization Requirements

In Love v. Department of Education, (CA App., Nov. 20, 2018), a California state appellate court rejected state constitutional challenges to a California law that repealed the personal belief exemption to the state's immunization requirements for school children. Saying that "Plaintiffs’ arguments are strong on hyperbole and scant on authority," the court rejected claims that the repeal violates the constitutional right to attend school, substantive due process, or rights of privacy or free exercise of religion.

Ecclesiastical Abstention Does Not Require Dismissal of Negligent Supervision Claim

In Bourque v. Roman Catholic Diocese of Charlotte, NC, (NC App., Nov. 20, 2018), a North Carolina appellate court held that the ecclesiastical abstention doctrine does not require dismissal of a suit alleging negligent supervision and negligent infliction of emotional distress. However it does require dismissal of a negligent hiring claim. The suit alleges that a male church youth leader raped a 14-year old female who sought counsel from him about being bullied. Four years later, he repeatedly raped her again. The court said in part:

Plaintiffs’ claim is not barred by the First Amendment because determining whether Bishop Jugis and the Diocese knew or had reason to know of Defendant’s proclivities for sexual wrongdoing requires only the application of neutral principles of tort law, and “the application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution.”

Court Orders Release of Iraqi Chaldean Detainees

A Michigan federal district court yesterday, in the latest installment in a case filed last year, ordered the release from federal detention of hundreds of Iraqi deportees who have been issued final removal orders, but whom the government has been unable to repatriate. Most of the detainees, according to the court, "are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq." In Hamama v. Adducci, (ED MI, Nov. 20, 2018), the court said in part:

The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future. This principle emanates from our Constitution’s core value of rejecting arbitrary restraints on individual liberty.

The issue the Court now resolves is whether there is such a likelihood of repatriation for scores of Iraqi nationals whom the Government has detained for an extended period—many for well over a year—while it engages in a diplomatic dialogue with Iraq that has yet to produce any clear agreement on repatriation. In fact, the weight of the evidence actually uncovered during discovery shows that Iraq will not take back individuals who will not voluntarily agree to return. This means that the Iraqi detainees could remain locked up indefinitely—many in local jails.... [T]he Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.

As explained fully below, the Court will grant a preliminary injunction, as requested by Petitioners in this case, ordering that those detained more than six months be released under orders of supervision.

ACLU issued a press release announcing the decision.

Tuesday, November 20, 2018

Court Holds Federal Female Genital Mutilation Statute Unconstitutional

A Michigan federal district court today held, on federalism grounds, that the federal Female Genital Mutilation statute, 18 USC 116, is unconstitutional. The case involves the prosecution of medical personnel and of the mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community. (See prior posting.) In United States v. Nagarwala, (ED MI, Nov. 20, 2018), the court rejected the government's argument that the statute can be supported as an exercise of Congress' treaty power or its power to regulate interstate commerce.

The International Covenant on Civil and Political Rights which Congress ratified in 1992 (subject to certain understandings and reservations) requires the adoption of laws to protect the rights of minors. One of the understandings imposed by Congress was that ratification would not change the relative roles of the federal and state governments. The court said in part:

Congress overstepped its bounds in legislating to prohibit FGM.... FGM is a "local criminal activity" which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

In rejecting the government's Commerce Clause arguments, the court said in part:

In the present case, the government has failed to show that FGM is a commercial activity. It claims that “[l]ike child pornography and marijuana, an interstate market exists for FGM.” ... Yet the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states.... This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute? The government’s attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing....

Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, “the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control.”... This argument fails for at least two reasons. First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is “beyond the ability of any single State or local jurisdiction to control.” Second, the government informs the Court that twenty-seven states have passed FGM statutes ... and nothing prevents the others from doing so.

Detroit News reports on the decision.

6h Circuit: Police Need Not Give Journalist Booking Photos of Woman Without Hijab

In Schlussel v. City of Dearborn Heights, (6th Cir., Nov. 19, 2018), the U.S. 6th Circuit Court of Appeals rejected arguments by a journalist that the City violated her 14th and 1st Amendment rights when it refused her Michigan Freedom of Information Act request for booking photos that were taken of a Muslim woman, Malak Kazan, that showed her without her hijab. The City's refusal was pursuant to a privacy policy it instituted in response to a previous suit by brought Kazan after her arrest. In this case journalist Deborah Schlussel argued unequal treatment because booking photos of Kazan had been furnished to Kazan's lawyer before the privacy policy was adopted. The court rejected Schussel's equal protection, as well as her Establishment Clause, argument.

Monday, November 19, 2018

Suit Seeking Cannabis Exemption For Rastafari Moves Ahead In Iowa

An Iowa state trial court has denied a motion by the Iowa Board of Pharmacy to dismiss a suit brought against it claiming that it abused its discretion when it refused to recommend to the state legislature an exemption for religious use of cannabis by Rastafari. (Order in Olsen v. Iowa Board of Pharmacy, (IA Dist. Ct., Nov. 16, 2018). Links to all the pleadings in the case as well as to audio of oral arguments are available here. (See prior related posting.)

Sunday, November 18, 2018

Recent Prisoner Free Exercise Cases

In Howard v. Polley, 2018 U.S. Dist. LEXIS 190747 (D NV, Nov. 6, 2018), a Nevada federal district court allowed a Muslim inmate to move ahead with his complaint that it takes up to several weeks for Muslim inmates to be screened so they can attend Jumu'ah services, while there is no screening for Christian and Jewish inmates.

In Kindred v. Allenby, 2018 U.S. Dist. LEXIS 191495 (ED CA, Nov. 8, 2018), a California federal magistrate judge held that an inmate's complaints regarding search and seizure of personal and religious property are subject to dismissal.

In Thomas v. Cox, 2018 U.S. Dist. LEXIS 192576 (D NV, Nov. 9, 2018), a Nevada federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 192645, Oct. 24, 2018) and denied a preliminary injunction to prevent destruction of videos of the prison culinary area in connection with his complaint that he was not furnished kosher meals.

In Hansler v. Kelley, 2018 U.S. Dist. LEXIS 192817 (WD AR, Nov. 13, 2018), an Arkansas federal district court dismissed a Wiccan inmate's complaint that his Wiccan Bible and Book of Grimoires were confiscated, and that there were no Wiccan religious leaders or volunteers to supervise its religious services.

In Doyle v. United States, 2018 U.S. Dist. LEXIS 192924 (ED KY, Nov. 13, 2018), a Kentucky federal district court dismissed a Hanafi Muslim inmate's complaint that inmates could pray in groups no larger than three.

In Shakanasa v. Allison, 2018 U.S. Dist. LEXIS 193482 (ND CA, Nov. 13, 2018), a California federal court allowed an inmate to move ahead with his complaint that he was not permitted to change his name or purchase religious items, and for retaliation.

In Wallace v. Solomon, 2018 U.S. Dist. LEXIS 193662 (WD NC, Nov. 14, 2018), a North Carolina federal district court dismissed an inmate's complaint that the policy providing for non-meat selections is inadequate to comply with Islamic dietary law.

Proposed HHS Rule Will Give Contraceptive Alternative To Women Excluded By Employers' Religious Objections

The New York Times reported yesterday that the Department of Health and Human Services has issued a new proposed rule that would blunt the impact of its recent final rules allowing employers to assert religious or moral objections to furnishing contraceptive coverage in their health plans. Under the proposed rule, any woman denied coverage from her employer because of the employer's religious or moral objections would be eligible for the family planning program for low income families offered under Title X of the Public Health Service Act, regardless of the woman's actual income. [Thanks to Steven H. Sholk for the lead.]

Victim of Neo-Nazi Website Attacks Can Move Ahead With Lawsuit

In Gersh v. Anglin, (D MT, Nov. 14, 2018), a Montana federal district court denied a motion to dismiss made by Andrew Anglin, publisher of the alt-right website the Daily Stormer in a suit against him for invasion of privacy, intentional infliction of emotional distress and violation of Montana's Anti-Intimidation Act. The suit was filed by Tany Gersh, a realtor who was the subject of abusive articles on Daily Stormer over her interactions with the mother of neo-Nazi leader Richard Spencer. As described by the court:

In the articles, Anglin described Gersh's behavior as extortion, and Anglin drew heavily on crude ethnic stereotypes, painting Gersh as acting in furtherance of a perceived Jewish agenda and using Holocaust imagery and rhetoric. He called for "confrontation" and "action"....

When Gersh filed her Complaint in the spring of 2017, she and her family had received more than 700 disparaging and/or threatening messages over phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards.

Refusing to dismiss the suit on free speech grounds without a more fully developed factual record, the court said in part:

At minimum, Gersh has made a plausible claim that Anglin' s speech involved a matter of strictly private concern....

The context of the case is, at first blush, public-a series of blog posts on an alt-right "news" blog, which often engages with political issues, albeit from an extremist viewpoint. However, under a liberal interpretation of the Complaint, the content of the speech may be seen as strictly private; Anglin launched a campaign of unrelated personal attacks on a Whitefish realtor, her husband, and their son because of a perceived conflict between Gersh and the mother of Anglin's friend, another white supremacist. Although Anglin drew heavily on his readers' hatred and fear of ethnic Jews, rousing their political sympathies, there is more than a colorable claim that he did so strictly to further his campaign to harass Gersh...

CNN reports on the decision. [Thanks to Scott Mange for the lead.]

Friday, November 16, 2018

Employer's Proposed Religious Accommodations Were Adequate

In Miller v. Port Authority of New York & New Jersey, (D NJ, Nov. 13, 2018), a New Jersey federal district court held that the religious accommodations offered to a newly-hired Jewish employee (shift swapping or use of vacation or comp time) were reasonable and the employee's preferred accommodation of his Sabbath observance did not need to be offered. The court said in part:

The employees in Miller’s unit are unionized, and as a result, Port Authority is bound by a collective bargaining agreement. Creating a permanent shift schedule for Miller exempting him from work on the Sabbath or the Jewish holidays, without first offering that option to more senior employees, would have violated the agreement’s seniority provision. It also would have violated the past-practices provision of the agreement, which requires that the established rotational schedule be maintained. In short, Miller’s preferred accommodation would have placed Port Authority in violation of its collective bargaining agreement and required other, more senior employees to work less desirable additional Friday evening and Saturday shifts.

On this record, the religious accommodation offered by Port Authority was reasonable. And because the blanket exemption proposed by Miller would have imposed more than a de minimis hardship, the employer was not required to accept it.

[Thanks to Steven H. Sholk for the lead.]

Christian Student Group Sues University For Registration

A suit was filed in Colorado federal district court this week by a Christian student organization at the University of Colorado that was denied registered status because it requires its officers must share and personally hold its Christian beliefs. It also requires prospective members to agree with and promote the organization's purposes. Registered status gives an organization access to student activity fees. The complaint (full text) in Ratio Christi at the University of Colorado v. Sharkey, (D CO, filed 11/14/2018) alleges:

[The University] has promised to register Ratio Christi only if the group changes its leadership and membership criteria. That is, Plaintiffs must agree to abandon their rights to free speech, free association, free exercise of religion, freedom from unconstitutional conditions, due process, and equal protection to access campus resources available to all other student organization.

ADF issued a press release announcing the filing of the lawsuit.

Free Exercise Claim Over Search Warrant Execution Fails

In Brown v. Scanlon, 2018 U.S. Dist. LEXIS 194049 (MD PA, Nov. 13, 2018), a Pennsylvania federal magistrate judge recommended dismissing a free exercise claim growing out of the execution of a search warrant at the residence of Shannon Brown. Brown claims that her 1st Amendment rights were infringed when police forced her to lie on the floor handcuffed in her underwear during the search. She says that as a Muslim woman, being in a state of undress around men caused her to feel defiled and embarrassed. She also complained that she was forced to remove her head scarf for her mugshot at the courthouse.

Thursday, November 15, 2018

Catholic Diocese Opposes Taking of Church Land For Border Fencing

The Catholic Diocese of Brownsville, Texas filed suit in federal district court on Nov. 6 seeking a temporary restraining order to prevent the federal government from exercising its eminent domain power to take church land to construct border fencing and security. According to the Brownsville Herald, last month the Department of Homeland Security waived more than two dozen laws to facilitate construction of border fencing through Hidalgo County and filed a Declaration of Taking that includes the La Lomita Chapel and Juan Diego Academy in Mission, Texas. The Diocese argues that the taking violates its free exercise rights and that the DHS waivers exceeded the authority granted by Congress.