New Mexico Supreme Court Upholds Textbook Loan Program

In Moses v. Ruszkowski, (NM Sup. Ct., Dec. 13, 2018), the New Mexico Supreme Court in a 5-2 decision held that New Mexico's textbook loan program does not violate the state constitution. The program provides for the loan of secular textbooks to private and parochial school students.  In 2015, the state Supreme Court held that the program was unconstitutional. (See prior posting.) However in 2017, the U.S. Supreme Court  granted certiorari, vacated the judgment and remanded the case for further consideration in light of the U.S. Supreme Court's Trinity Lutheran Church decision. (See prior posting.) Now on remand, the state Supreme Court reversed itself, saying in part:

On remand, we conclude that this Court’s previous interpretation of Article 16 XII, Section 3 raises concerns under the Free Exercise Clause of the First Amendment to the United States Constitution. To avoid constitutional concerns, we hold that the textbook loan program, which provides a generally available public benefit to students, does not result in the use of public funds in support of private schools as prohibited by Article XII, Section 3. We also hold that the textbook loan program is consistent with Article IV, Section 31 of the New Mexico Constitution, which addresses appropriations for educational purposes, and Article IX, Section 14 of the New Mexico Constitution, which limits “any donation to or in aid of any person, association or public or private corporation.”

Chief Justice Nakamura and Justice Clingman dissented. Courthouse News Service reports on the decision.

Recent Prisoner Free Exercise Cases

In Holt v. Givens, (11th Cir., Dec. 12, 2018), the 11th Circuit held that an inmate failed to state a First Amendment Claim growing out of the taking of his prayer oil.

In Derx v. Yancey, 2018 U.S. Dist. LEXIS 208053 (ED AR, Dec. 10, 2018) an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 208651, Nov. 13, 2018) and allowed an inmate top move ahead with 1st Amendment and RLUIPA claims that his his ability to practice his Wiccan beliefs was restricted.

In Strozier v. Hall, 2018 U.S. Dist. LEXIS 208839 (SD GA, Dec. 11, 2018), a Georgia federal magistrate judge recommended dismissing an inmate's complaint that he was not allowed to attend religious services while in an isolation cell.

In Williams v. New York State Office of Mental Health, 2018 U.S. Dist. LEXIS 211279 (ED NY, Dec. 14, 2018), a New York federal district court dismissed a complaint by an involuntarily committed criminal defendant that he was prevented from attending religious services.

Vandalizing Religious Building Includes Vandalizing Sign Outside It

In People v. Laduke, (CA App., Dec. 14, 2018), a California appellate court held that defendant could properly be convicted under California Penal Code Sec., 594.3(a) for vandalism of a building owned and occupied by a religious institution after he torched a sign in front of John Paul the Great Catholic University. The court said in part:

Because the vandalism set forth in section 594.3, subdivision (a) prohibits damage to both real and personal property, we reject LaDuke's suggested interpretation limiting that offense to damage to only an occupied structure with four walls and a roof....  [W]e construe section 594.3, subdivision (a) as prohibiting, inter alia, malicious damage to personal property or fixtures located on or attached to the real property of, and related to, a "building owned and occupied by a religious educational institution."

The court also rejected the argument that Sec. 594.3 violates the Establishment Clause and the Equal Protection clause.

Bhargava Appointed To USCIRF

Anurima Bhargava has been appointed by House Democratic Leader Nancy Pelosito the U.S Commission on International Religious Freedom. According to a USCIRF press release issued yesterday:

Currently founder and President of Anthem of Us, Bhargava is a civil rights lawyer with extensive experience in various roles advocating for members of underrepresented communities, including at the U.S. Department of Justice and the NAACP Legal Defense and Educational Fund (LDF).

Libyan Mufti Wants To Sue British Embassy For Its Equality Program

Yesterday's Libya Observer reports that Libya's Grand Mufti, Al-Saddiq Al-Gharyani, is calling for a lawsuit to be filed against the British embassy in Libya because of the embassy's new initiative to promote equality between men and women in Libya. Al-Gharyani says that activities sponsored by the embassy violate Libya's sacred norms and motivate anti-religious and seditious activities.

9th Circuit: Limited Injunction Against Interim Contraceptive Coverage Rules Upheld

In State of California v. Azar, (9th Cir., Dec. 13, 2018), the U.S. 9th Circuit Court of Appeals in a 2-1 decision affirmed in part a preliminary injunction issued by a California federal district court against enforcement of the Trump Administration's Interim Final Rules expanding religious and moral exemptions to the Affordable Care Act Contraceptive Coverage Mandate. The preliminary injunction, however, will likely have a limited effect.  Final rules similar to the interim ones have been issued and will become effective Jan. 14, 2019.  The basis for the district court's preliminary injunction was noncompliance with the Administrative Procedure Act's notice and comment requirements in adoption of the interim rules. When the final rules take effect, the problematic interim rules will disappear.  The 9th Circuit also held that the district court's injunction was too broad. It should have covered only enforcement against the five states that were plaintiffs (California, Delaware, Virginia, Maryland New York), rather than being a nation-wide injunction.

Judge Kleinfeld dissented arguing that the states lack standing to bring the suit because their injuries were self-inflicted. The injury to the states came from their decisions to grant contraceptive benefits to employees whose employers were exempted by the interim rules. Reuters reports on the decision.

NY Catholic Schools Say They Will Ignore New State Review System

As previously reported,  last month the New York State Education Department issued guidelines for Substantial Equivalency Review of the curriculum of non-public religious and independent schools.  According to the Albany Times Union earlier this week:

In a major rebuke to the state, leaders of New York's more than 500 Catholic schools say they will boycott a proposed new review system in which local public school officials are supposed to inspect the parochial schools and determine whether they offer a “substantially equivalent” education.

“The parents who choose our schools can have great confidence in the academic rigor of our schools,” said James Cultrara, executive secretary of the state Council of Catholic School Superintendents.

But, he added, “We simply cannot accept a competing school having authority over whether our schools can operate.”

Earlier, some Hasidic Jewish yeshivas had expressed defiance of the new rules. (See prior posting.) [Thanks to Steven H. Sholk for the lead].

Mosque Survives Motion To Dismiss Its RLUIPA and Constitutional Claims

In Garden State Islamic Center v. City of Vineland, (D NJ, Dec. 12, 2018), a New Jersey federal district court refused to dismiss a mosque's challenge to the denial of a final certificate of occupancy. The denial stems from the city's claim that the mosque is in violation of its septic system permit.  As summarized by the court:

GSIC claims that the Defendants’ actions are discriminatory in nature and are intended to prevent the GSIC from permanently opening and operating its house of worship/ religious education building through the discriminatory application of land use regulations, in violation of the Religious Land Use and Institutionalized Persons Act ... and the Constitutions of the United States and New Jersey. Plaintiff alleges that the City continually changed the requirements for the septic system, which they previously approved, for discriminatory purposes.

The septic tank issue was merely the latest in a series of procedural hurdles encountered by the mosque. The court concluded that "the sewage permit issue is a zoning law subject to RLUIPA." The court also refused to dismiss plaintiff's 1st and 14th Amendment claims and related New Jersey constitutional claims.

Montana Supreme Court Invalidates Tuition Tax Credit Program

In Espinoza v. Montana Department of Revenue, (MT Sup. Ct., Dec. 12, 2018), the Montana Supreme Court in a 5-2 decision held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. The majority said in part:

Montana’s no-aid provision is unique from other states’ no-aid provisions. Article X, Section 6’s prohibition of “any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any . . . school . . . controlled in whole or in part by any church” make it a broader and stronger prohibition against aid to sectarian schools than other states. Even other states whose no-aid provisions also contain “indirect” language only prohibit aid in the form of the direct or indirect taking of money from the public treasury....  Such language is distinct from and less stringent than Montana’s prohibition on any type of aid, whether it be a “direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property.” Mont. Const. art. X, § 6(1). 

The majority also held that the Department of Revenue's attempt to cure the program's unconstitutionality by Rule was invalid because the Department exceeded its rule making authority. The court left the student scholarship organization provisions in force, but without the accompanying tax credit for contributions.

Justice Gustafson filed a concurring opinion concluding that the tax credit program also violates the federal Free Exercise and Establishment clauses. Justice Sandefur joined this concurring opinion and also filed a separate concurrence.

Justice Baker, joined by Justice Rice dissented saying in part:

The creation of the credit is a government’s determination not to collect tax revenues. The statute diverts the funds before they ever become public monies. This well may result in an indirect impact on the “public fund or monies,” but it is not an indirect payment,,,,

The Court today holds that a tax credit—granted to a private individual for a donation that may or may not be directed to a religious entity—violates the State Constitution, even though it is clear under the law that a direct tax exemption by the State to a church does not.

Justice Rice also filed a separate dissent. The Missoulian reports on the decision,

Another Court Enjoins Enforcement of Contraceptive Mandate Against Religious Non-Profits

In yet another case, after the Trump Administration has taken the position that the Obama era contraceptive coverage mandate under the Affordable Care Act violates the religious freedom rights of objecting religious non-profits, a court has enjoined enforcement of the mandate.  In Association of Christian Schools International v. Azar, (D CO, Dec. 10, 2018), a Colorado federal district court held that the mandate violates plaintiffs' rights under RFRA. The Hill reports on the decision. The Trump Administration's new rules exempt objecting religious non-profits.

Suit Challenges School District's Anti-Bias Training

The Santa Barbara Independent today reports on a federal lawsuit filed by a group calling itself Fair Education Santa Barbara challenging the Santa Barbara schools anti-bias training for teachers and administrators.  It seeks cancellation of a contract with Just Communities Central Coast that provides the training.  Among other things, the lawsuit contends in part:

Under the guise of promoting so-called ‘unconscious bias’ and ‘inclusivity’ instruction, (Just Communities’) actual curriculum and practices are overtly and intentionally anti-Caucasian, anti-male, and anti-Christian.

The suit claims that the curriculum violates the Equal Protection clause and other civil rights protections by discriminating against white people.

Suit Says Police Chief Forced Religion On Officers

The Advocate reports on a federal court lawsuit filed last week against the Port Allen, Louisiana Police Department::

A second former Port Allen police officer has filed a lawsuit alleging Police Chief Esdron Brown consistently forced his religion on his officer corps through mandatory meetings, and further claimed the chief used God's will as reasoning for unjust promotions.

Robert Cannon Jr.,... , filed a federal civil rights case ... alleging the chief's repeated mention of religion and religious-focused meetings created a hostile work environment.

Evangelists Win Narrow Settlement Victory In Alaska Park Dispute

According to KTUU News, a father-daughter evangelist team have won a narrow victory in the settlement of their lawsuit against the city of Girdwood, Alaska.  They sued challenging the city's "No dogs, no politics, no religious orders" requirement at Girdwood's annual Forest Fair. (See prior posting.) Under the settlement, the city will allow the evangelists to distribute leaflets in the park that is used by Forest Fair. However whether they will be able to proselytize at Forest Fiar itself next year will be up to the Fair's promoters.  A city attorney said that control of the park during events like the Fair in in the hands of the organization that has received a permit to stage the event.

Chinese Police Detain Prominent Pastor and Some Members of Unregistered Church

The New York Times reported earlier this week that on Sunday Chinese police detained Wang Yi, one of China's most prominent Protestant pastors.  His Early Rain Covenant Church, with its over 500 members, is one of many churches that are not registered with the government. These independent Protestant churches that have not complied with the registration laws are one of the fastest growing religious movements in China, claiming some 30 million adherents. More than 100 members of Early Rain were also detained, though a number were released by Monday with some of those then being placed under house arrest.

Hasidic Jews Sue Town Over Zoning Barriers

Suit was filed this week in a New York federal district court against the village of Airmont for its actions in attempting to prevent expansion of its Hasidic Jewish community.  The complaint (full text) in Congregation of Ridnik v. Village of Airmont, (SD NY, filed 12/10/2018), alleges in part:

For Hasidic Jews living in Airmont, seeking the Village’s approval for religious gatherings places applicants in a process reminiscent of the curse of Tantalus. At great expense, applicants prepare elaborate plans in order to obtain approval, which the Village uniformly declines to provide. Instead, the Village dangles promises that the applications will be approved in the future if certain modifications are made, only to then yank any hope of approval away even after the applicants make the requested modifications. Instead of providing an approval or denial, the Village requires applicants to satisfy new conditions, often citing purported problems with the applicants’ plans on which Airmont officials had already signed-off.

Injunction Denied Against Picketing Ordinance

In O'Connell v. City of New Bern, North Carolina, (ED NC, Dec. 10, 2018), a North Carolina federal district court refused to grant a preliminary injunction to block enforcement of the city's ordinance that regulates picketing.  Plaintiff wanted to share his religious, social and political message near MumFest, but was prevented from handing out literature and carrying a cross.

$4M Award Against Jehovah's Witnesses Upheld

In J.W. v, Watchtower Bible and Tract Society of New York, Inc., (CA App,, Dec. 10, 2018), a California state appellate court upheld an award of over $4 million to a girl who, when she was ten years old, was sexually abused by an elder of the Jehovah's Witness church.  The church was charged, among other things, with negligent supervision and failure to warn. The award came after a court struck defendant's answer as a sanction for failing to comply with discovery orders.

Supreme Court Denies Review In Attempted Cutoff of Medicaid Funds To Planned Parenthood

Over the dissent of Justices Thomas, Alito and Gorsuch, the U.S. Supreme Court today denied certiorari in Gee v. Planned Parenthood of Gulf Coast, Inc., (cert. denied, 12/10/2018). (Order list with dissenting opinion by Thomas, J.)  In the case, the 5th Circuit in a 2-1 decision (full text) upheld the district court's preliminary injunction against the state of Louisiana's termination of Medicaid contracts with Planned Parenthood. At issue in the case is whether Medicaid recipients have a private right of action to challenge the state's action, (SCOTUSblog case page).

Recent Articles of Interest

From SSRN:

• Giovanni Zaccaroni, Non-discrimination on the Ground of Religion: A Fundamental Element of the EU Constitutional Legal Order?, (University of Milano-Bicocca School of Law Research Paper No. 18-01 (2018).).
• M. C. Mirow, Léon Duguit and the Social Function of Property in Argentina , (In Paul Babie and Jessica Viven-Wilksch, eds., Léon Duguit and the Social Obligation Norm of Property: A Translation and Global Exploration. Cham: Springer, Forthcoming).
• Damir Banović & Ehlimana Memišević, Law and Religion in Bosnia and Herzegovina (December 7, 2018).
• Philippe Lord,  The Eternal Commitment: Scientology's Billion-Year Contract, (December 7, 2018).
• William P., Marshall, Third-Party Burdens and Conscientious Objection to War,(2018), (Kentucky Law Journal, Vol. 106, 2019).
• Piotr Godzisz, The Europeanization of Anti-LGBT Hate Crime Laws in the Western Balkans, (Crime, Law and Social Change, Forthcoming).
• David Adam Friedman, Bringing Candor to Charitable Solicitations, (Maryland Law Review, Forthcoming).
• Raff Donelson & Ivar Hannikainen, Fuller and the Folk: The Inner Morality of Law Revisited, (Oxford Studies in Experimental Philosophy, Volume 3. Oxford: UK, Oxford University Press, Forthcoming).

Today Is 70th Anniversary of Universal Declaration of Human Rights

Today is the 70th Anniversary of the United Nations adoption of the Universal Declaration of Human Rights. Article 18 of the Declaration guarantees religious freedom:

Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance.