Arizona Supreme Court Hears Oral Arguments Over Refusal To Design Invitations For Same-Sex Wedding

Yesterday the Arizona Supreme Court heard oral arguments in Brush & Nib v. City of Phoenix. (Video of full oral arguments). In the widely-followed case, owners of an art studio that designs wedding products, citing their Christian religious beliefs, refused to create customer-specific merchandise for same-sex weddings. They sued to obtain an injunction against application of Phoenix's public accommodation anti-discrimination law to them. The state appeals court rejected most of plaintiffs' free speech and free exercise arguments. (See prior posting.)  AP reports on the oral arguments.

Cert. Denied In Religious Autonomy Case

The U.S. Supreme Court yesterday denied certiorari in First Presbyterian Church U.S.A. of Tulsa, Oklahoma v. Doe, (Docket No. 18-599, cert. denied 1/22/2019). (Order List).  In the case, which raises 1st Amendment religious autonomy issues, the Oklahoma Supreme Court reversed a trial court's dismissal of a suit by a convert to Christianity who was kidnapped and tortured by Islamic extremists in Syria after his baptism was published online.  (See prior posting.)

Cert. Denied In Football Coach's Firing For On-Field Prayer

Today, the U.S. Supreme Court denied certiorari in Kennedy v. Bremerton School District, (Docket No. 18-12, cert. denied 1/22/19).  In the case, the 9th Circuit affirmed the district court's denial of a preliminary injunction sought by a Washington-state high school football coach who in a challenge to his school district was suspended for kneeling and praying on the football field 50-yard line immediately after games. (See prior posting.)  In today's action, Justice Alito, joined by Justices Thomas, Gorsuch and Kavanaugh, filed a 6-page concurring statement (scroll to end of Order List), saying in part:

In this case, important unresolved factual questions would make it very difficult if not impossible at this stage to decide the free speech question that the petition asks us to review....

While I thus concur in the denial of the present petition, the Ninth Circuit’s understanding of the free speech rights of public school teachers is troubling and may justify review in the future....

What is perhaps most troubling about the Ninth Circuit’s opinion is language that can be understood to mean that a coach’s duty to serve as a good role model requires the coach to refrain from any manifestation of religious faith—even when the coach is plainly not on duty.....

While the petition now before us is based solely on the Free Speech Clause of the First Amendment, petitioner still has live claims under the Free Exercise Clause of the First Amendment and Title VII of the Civil Rights Act of 1964.... Petitioner’s decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this Court.

In Employment Div., Dept. of Human Resources of Ore. v. Smith ... the Court drastically cut back on the protection provided by the Free Exercise Clause, and in Trans World Airlines, Inc. v. Hardison ... the Court opined that Title VII’s prohibition of discrimination on the basis of religion does not require an employer to make any accommodation that imposes more than a de minimis burden. In this case, however, we have not been asked to revisit those decisions.

MyNorthwest reports on the decision.

Supreme Court Allows Trump Administration's Ban On Transgenders In Military To Take Effect

In Trump v. Karnoski (Docket No. 18A625) and Trump v. Stockman (Docket No. 18627), (Order List), the U.S. Supreme Court today granted stays of preliminary injunctions issued by district courts, thus allowing the Trump Administration's policy barring most transgender individuals from enlisting in the the military to go into effect while constitutionality of the policy is litigated in appeals to the 9th Circuit and eventually in petitions for certiorari to the Supreme Court. Justices Ginsburg, Breyer, Sotomayor and Kagan would have allowed the district courts'injunction against implementing the policy to stand.   The Court also, without dissent, refused to grant certiorari before the Circuit Courts rule, in the same two cases, as well as in Trump v. Doe. (Docket Nos. 18-676 to 678). New York Times reports on the Supreme Court's action.

Federal Prison With Special Accommodations For Jewish Inmates

Today's New York Times reports on the religious accommodations for Jewish inmates in the prison at which President Trump's former lawyer Michael Cohen hopes to serve his three year sentence:

What the minimum-security camp at the Federal Correctional Institution in Otisville, N.Y., does offer is a rarity in the federal prison system: a full-time Hasidic chaplain who oversees a congregation of dozens of Jewish inmates who gather for prayer services three times a day.

“For a Jewish person, there is no place like Otisville,” said Earl Seth David, 54, a former inmate who attended kosher meals, religious classes and weekly Shabbat services in the prison shul, a shared space where the Torah scrolls are locked up every night....

Orthodox inmates wear fringed vests known as zizit under their green prison uniforms. Prison work shifts are scheduled around daily prayer sessions and Sabbath observances. Before many holidays, the men are taken by prison bus to a nearby town for traditional mikvah baths....

Over the years, federal officials have “sort of carved this place out as a special location to put Jewish inmates,” said Benjamin Brafman, a prominent defense lawyer who has represented numerous defendants who have requested Otisville.

State Department Will Host Second Ministerial To Advance Religious Freedom

Last week in honor of Religious Freedom Day, the U.S. State Department announced that it will host its second Ministerial to Advance Religious Freedom on July 16-18, 2019, in Washington, D.C. The announcement said in part:

This Ministerial will again gather hundreds of government representatives, religious leaders, survivors of religious persecution, and members of civil society to build on the actions that began with the inaugural Ministerial last year.

Egyptian TV Host Sentenced For Program Featuring Gay Sex Worker

New York Post reported yesterday that an Egyptian trial court has sentenced a television host Mohammed el-Gheiti to one year in prison at hard labor followed by one year of surveillance, and a fine equivalent to $167 US for promoting debauchery and homosexuality.  Gheiti was also charged with contempt of religion.  The conviction stems from the appearance on his show of journalist Mustafa Mekki who posed as a gay man on the gay dating app Grindr in order to learn more about the Egyptian gay community. Also on the show was an anonymous sex worker who Mekki met on the app who said he wanted to warn other young men not to repeat his mistake.

Cert Petition Filed In RLUIPA Suit By Christian School

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Tree of Life Christian Schools v. City of Upper Arlington, Ohio. In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that a private Christian school had failed to establish a prima facie case that denial of zoning approval for its proposed new location violates the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  ADF issued a press release announcing the filing of the petition for review.

Sundance Features Documentary on Satanic Temple

The Sundance Film Festival begins this Thursday in three Utah locations.  The Daily Mail reviews one of the  documentary films featured at the Festival-- Hail Satan?  The Festival's website describes the film in part as follows:

Just a few years old, the Satanic Temple has risen from the depths to become one of the most controversial religious movements in American history. Hail Satan? bears witness as the temple evolves from a small-scale media stunt to an internationally recognized religion with hundreds of thousands of adherents. Naked bodies writhe with snakes on altars as protesters storm the gates of state capitols across the country. Through their dogged campaign to place a nine-foot, bronze Satanic monument smack dab next to the statue of the Ten Commandments on the Arkansas State Capitol lawn, the leaders of the temple force us to consider the true meaning of the separation of church and state.

Mobile Home Park Seeks To Require Resident To Remove Portrait of Virgin Mary

In Bradenton, Florida, a mobile home park, Bradenton Tropical Palms, has filed a demand for arbitration with the state's Division of Florida Condominiums, Timeshares and Mobile Homes in an attempt to require an 85-year old Catholic woman to remove a portrait of the Virgin Mary from the outside of her mobile home.  York Dispatch reports that the woman commissioned an artist to create the plywood painting which she installed to replace a window.  She contends that the park's enforcement attempt is anti-Catholic, and that she was targeted because of her religious beliefs. Management says she has failed to comply with park rules regarding her window replacement-- her filed paper work did not include a request for a change in appearance or design.

NY Court Orders Death Certificate Changed After Religious Objections To Brain Death Test

Hamodia reports that a New York state trial court judge has ordered Columbia-Presbyterian Hospital to change the date on the death certificate of an Orthodox Jewish patient in order to accommodate the family's religious objection to brain death as a definition of death. The patient, Yechezkel Nakar, was transferred to a nursing home after the declaration of brain death. He stopped breathing there some three weeks later.  Normally medical insurance will not cover treatment after a death certificate has been issued.

Recent Articles of Interest

From SSRN:

• Richard Rice, Can a Christian Be a Corporate Lawyer? Tracing Corporate Law's Religious Roots and Identifying How We Can Integrate Our Faith and Work, (January 1, 2019).
• Michael A. Helfand, Jews and the Culture Wars: Consensus and Dissensus in Jewish Religious Liberty Advocacy, (San Diego Law Review, Forthcoming).
• Jianlin Chen, Joyous Buddha, Holy Father, and Dragon God Desiring Sex: A Case Study of Rape by Religious Fraud in Taiwan, (13(2) National Taiwan University Law Review 183-237 (2018)).
• John Witte, The McDonald Distinguished Christian Scholars Conference: Is Religious Liberty Under Threat? Trans-Atlantic Perspectives, (Ecclesiastical Law Journal 20 (2018): 339-41).
• Cekli Setya Pratiwi, The Permissible Scope of Legal Limitation on Freedom of Religion or Belief (FoRB) and Freedom of Expression (FoE) under International Human Rights Law (IHRL): The Study of Blasphemy Cases in Indonesia,(January 9, 2019).
• Prakash Shah, Sacerdotal Violence and the Caste System: The Long Shadow of Christian-Orientalism, (Queen Mary School of Law Legal Studies Research Paper No. 302/2019).
• Brendan Williams, NIFLA v. Beccera: Abortion Speech Only as Free as the Supreme Court Wants It to Be, (13 Charleston Law Review 89 (2018)).
• W. Burlette Carter, Sexism in the 'Bathroom Debates': How Bathrooms Really Became Separated By Sex, (Yale Law & Policy Review, Vol. 37, No. 1, 2018).
• Zamir Iqbal & Friedemann Roy, Innovative Islamic Social Finance for Housing Microfinance, (Islamic Economic Studies, Vol. 26, No. 1, 2018).

From SmartCILP:

• Michael S. Talbot, The Challenge of Trokosi: Ritual Servitude and the Framework of International Human Rights Law, 31 Harvard Human Rights Journal 1-32 (2018).
• Nicholas J. Hunt, Let Us Pray: The Case for Legislator-Led Prayer. 54 Tulsa Law Review 49-79 (2018).

New York Legislature Passes Gender Expression Non-Discrimination Act

Last week, the New York legislature passed and sent to Gov. Andrew Cuomo for his signature A00747, the Gender Expression Non-Discrimination Act (full text).  As reported by the National Law Review, the bill amends New York's anti-discrimination laws to expressly ban discrimination on the basis of gender identity or expression, and adds to the list of offenses subject to treatment as hate crimes offenses regarding gender identity or expression. The Governor is expected to sign the bill.

Conversion Therapy Ban Challenged In Maryland, Enacted In New York

The Baltimore Sun reports that a lawsuit was filed in Maryland federal district court on Friday challenging Maryland's ban on conversion therapy for minors.  Plaintiff Christopher Doyle contends that the ban violates his free speech and free exercise rights, as well as his clients' right "to prioritize their religious and moral values above unwanted same-sex sexual attractions, behaviors, or identities."

Meanwhile, on Jan. 15, the New York state legislature gave final passage to A00576 (full text) which prohibits  mental health  professionals  from  engaging  in  sexual  orientation  change efforts with patients under the age of eighteen. NBC News says that Gov. Andrew Cuomo is expected to promptly sign the bill.

Recent Prisoner Free Exercise Cases

In Sterling v. Sellers, 2019 U.S. App. LEXIS 1522 (11th Cir., Jan. 16, 2019), the 11th Circuit refused to allow a previously litigious inmate to proceed without paying a filing fee under the imminent danger exception. The inmate alleged that prison officials use physical force against Muslims to stop their congregate prayers in dorms.

In Blankumsee v. Foxwell, 2019 U.S. Dist. LEXIS 4574 (D MD, Jan. 10, 2019), a Maryland federal district court dismissed for failure to exhaust administrative remedies a complaint by a Christian inmate that serving him turkey sausages made with pork stock violated his religious beliefs.

In Bell v. English, 2019 U.S. Dist. LEXIS 5425 (D KA, Jan. 11, 2019), a Kansas federal district court gave an inmate 3 weeks to show cause not to dismiss his complaint that he was without his Bible for 3 days after a search.

In Dayton v. Lisenbee, 2019 U.S. Dist. LEXIS 5435 (ED MO, Jan. 11, 2019), a Missouri federal district court held that there is no constitutional requirement that a jail create religious services for prisoners, at least in the absence of a demand for particular religious services or an allegation that group services are the only meaningful way for an inmate to practice his religion.

In Scales v. Walker, 2019 U.S. Dist. LEXIS 9055 (WD WI, Jan. 18, 2019), a Wisconsin federal district court dismissed an inmate's claim that his free exercise and other rights were infringed when a correctional officer attempted to serve him a waffle that had dropped on the floor and refused to replace his Kosher meal when plaintiff learned what had happened.

School Board Votes To End Appeals of Board Prayer Policy Decision

As previously reported, last month the U.S. 9th Circuit Court of Appeals, over a number of dissenting views, denied en banc review in Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education. In the case, a 3-judge panel applied the Lemon test to strike down a California school board's prayer policy for board meetings. Now, according to the Chino Champion, on Thursday with two new board members voting, the Board voted 3-2 to end all appeals of the decision. One of the new Board members voting with the majority works as a 1st Amendment lawyer.

Claim of Religious Targeting Against Child Welfare Worker Dismissed

In Glasser v. McCumbers, 2019 U.S. Dist. LEXIS 7541 (SD WV, Jan 15, 2019), a West Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 219514, Nov. 30, 2018) and dismissed a suit against a Child Protective Services worker.  Plaintiff, whose child was removed from his custody, alleged that he was was subjected to an Abuse and Neglect charge in part because of the contempt for which the CPS worker Melissa McCumbers held his religious communal living conditions.  The court concluded that McCumbers failed to establish a substantial burden on the exercise of his religion.

Anti-Semitism Concerns Surround Tomorrows Third Women's March

Tomorrow the third annual Women's March is scheduled in a number of cities around the country.  But as reported by Vox, concerns about anti-Semitism surround some leaders of the movement and has led to the withdrawal of sponsorship by groups such as the Southern Poverty Law Center and, apparently, the Democratic National Committee:

[T]his year, the leaders of Women’s March Inc. — one of the organizations that grew out of the original march, and the most visible public face of the march today — are facing calls to step down. The reasons include criticisms of their association with Nation of Islam leader Louis Farrakhan and allegations that they made anti-Semitic remarks in planning meetings.

Women’s March Inc. is a national organization led by four activists from New York City — Tamika Mallory, Linda Sarsour, Carmen Perez, and Bob Bland — who helped organize the first march in Washington, DC, in 2017. The group also has local chapters that are planning marches in cities around the country this year, though other local marches are not affiliated with Women’s March Inc.

Fired Employee Loses Suit Over Religious Content of His E-Mail Signature Block

In Sioux City, Iowa on Wednesday, a federal trial court jury rejected a claim by plaintiff who had been hired as a psychiatric security specialist that his firing during his probationary period violated his free speech and free exercise rights.  As reported by the Sioux City Journal, plaintiff Michael Mial pointed to the request by his supervisors at a state sex-offender civil commitment unit that he stop using "In Christ" in his personalized signature block on internal e-mails sent to other employees.

Senate Resolution Says "No Religious Test" Clause Bars Disqualification For K of C Membership

On Wednesday, the U.S. Senate passed Senate Resolution 19 by unanimous consent.  The Resolution was introduced by Nebraska Sen. Ben Sasse in response to questions raised in connection with last month's Judiciary Committee hearing on the nomination of Brian C. Buescher for a seat on the United States District Court for the District of Nebraska. At that hearing, Senators Mazie Hirono (D-HI) and Kamala Harris (D-CA) questioned whether Buescher's membership in the Knights of Columbus would bias his consideration on issues such as abortion rights and same-sex marriage. (Background). Resolution 19 after a lengthy Preamble, provides:

That it is the sense of the Senate that disqualifying a nominee to Federal office on the basis of membership in the Knights of Columbus violates clause 3 of article VI of the Constitution of the United States, which establishes that Senators ‘‘shall be bound by Oath or Affirmation, to support th[e] Constitution’’ and ‘‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States’’.

National Catholic Register reports on the Resolution.