President Supports Bible Literacy Courses In Public Schools

As reported by Politico, Donald Trump today tweeted support for Bible literacy courses in public schools. Trump's tweet said:

Numerous states introducing Bible Literacy classes, giving students the option of studying the Bible. Starting to make a turn back? Great! 

Recent Articles of Interest

From SSRN:

• Christopher C. Lund, Religious Exemptions, Third-Party Harms, and the False Analogy to Church Taxes, (Kentucky Law Journal, Vol. 106, p. 679, 2018 (symposium)).
• Petro Kurmaiev, Prostitution: The Essence and Motives, (July 23, 2018).
• Samuel Wolfe Calhoun, If Separation of Church and State Doesn’t Demand Separating Religion from Politics, Does Christian Doctrine Require It?, (74 Wash. & Lee L. Rev. Online 565 (2019)).
• Siraj Khan, Arab and Islamic States’ Practice: The Sharíʿah Clause and Its Effects on the Implementation of the Rome Statute of the International Criminal Court, (in Tallyn Gray (editor), Islam and International Criminal Law and Justice, Torkel Opsahl Academic EPublisher, Brussels, 2018).

From SmartCILP:

• Richard D. Komer, Trinity Lutheran and the Future of Educational Choice: Implications for State Blaine Amendments, 44 Mitchell Hamline Law Review 551-613 (2018).

Recent Prisoner Free Exercise Cases

In Gibson v. Miller, 2019 N.J. Super. Unpub. LEXIS 155 (NJ App., Jan. 22, 2019), a New Jersey state appellate court rejected an argument from an inmate convicted of murdering a former girlfriend that the divorce obtained by his wife was invalid because under Catholic doctrine a marriage cannot be dissolved by any earthly authority.

In Harris v. Holmes, 2019 U.S. Dist. LEXIS 10693 (D NJ, Jan. 23, 2019), a New Jersey federal district court dismissed a Muslim inmate's complaints about his diet during Ramadan, prayer time, access to prayer oils and wearing a kufi.

In Ruffin v. Baldwin, 2019 U.S. Dist. LEXIS 10881 (SD IL, Jan. 23, 2019), an Illinois federal district court allowed a Jewish inmate to move ahead with claims that he was denied certified kosher meals for breakfast, denied assembly for religious services, and not allowed to wear his religious medallion.

In Tenison v. Byrd, 2019 U.S. Dist. LEXIS 11620 (WD OK, Jan. 23, 2019), an Oklahoma federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 220080, Dec. 28, 2018) and dismissed a Muslim inmate's complaint that he had been threatened about giving away his halal food tray and that Muslims were no longer able to pray on the day room floor.

In Massaquoi v. Morris, 2019 U.S. Dist. LEXIS 10079 (MD PA, Jan. 18, 2019), a Pennsylvania federal magistrate judge recommended dismissing an inmate's claim that he was denied a religious exemption from the Department of Corrections's haircut policy.

Today Is International Holocaust Remembrance Day

Today-- January 27-- is the date designated by the United Nations as International Holocaust Remembrance Day. The date is the anniversary of the liberation in 1945 of the Auschwitz-Birkenau concentration and extermination camp.

Despite Urging, No Excommunication For Gov. Cuomo Over Abortion Rights Law

On Jan. 22, New York's Gov. Andrew Cuomo signed A00021, the Reproductive Health Act (full text) which protects abortion rights.  As reported by the Washington Post on Friday, "some prominent Catholics have urged Cardinal Timothy Dolan of New York to declare Cuomo excommunicated." CNN Religion Editor Daniel Burke received this reaction from a spokesman for Cardinal Dolan:

I will not discuss any individual. Anything that follows is a statement of some general principles, and should not be considered a comment on any specific person.

First, excommunication should not be used as a weapon.  Too often, I fear, those who call for someone's excommunication do so out of anger or frustration.

Second, notable canon lawyers have said that, under canon law, excommunication is not an appropriate response to a politician who supports or votes for legislation advancing abortion.

Third, from a pastoral perspective, if a pastor-- and a bishop is certainly a pastor of a diocese-- knows of a grave situation involving a parishioner, it is his duty to address that issue personally and directly with the parishioner.  That was the approach of Cardinal O'Connor and Cardinal Egan (both of whom I served), and it is Cardinal Dolan's approach as well.

Fourth, and finally, from a strategic perspective, I do not believe that excommunication would be effective as many politicians would welcome it as a sign of their refusal to be "bullied by the Church", thinking it would therefore give them a political advantage. (See, for example, the case of Bishop Leo Maher and Lucy Killea).

Arkansas Anti-Israel Boycott Law Upheld

In Arkansas Times  LP v. Waldrip, (ED AR, Jan. 23, 2019), an Arkansas federal district court dismissed a challenge to Arkansas' Act 710 which requires companies doing business with the state to certify that they are not boycotting Israel.  Plaintiff claimed that the law compels speech regarding contractors’ political beliefs, association, and expression, and restricts state contractors from engaging in boycotts and boycott-related speech in violation of the 1st Amendment. The court rejected these arguments, holding:

A boycott of Israel, as defined by Act 710, is neither speech nor inherently expressive conduct.

The court went on to hold that prior U.S. Supreme Court precedents do not "create an unqualified right to engage in political boycotts."  AP reports on the decision. [Thanks to Steven H. Sholk for the lead.]

New York City's Conversion Therapy Ban For Adults Challenged

Suit was filed this week in a New York federal district court challenging New York City's ban on conversion therapy.  New York City's law, unlike almost all other bans, applies to sexual orientation and gender identity change counseling for adults as well as minors.  The complaint (full text) in Schwartz v. City of New York, (ED NY, filed 1/23/2019), contends that NYC Law Number 2018/22-- which the complaint calls the "Counseling Censorship Law"-- violates the free speech and free exercise rights of both psychotherapist David Schwartz and his patients.  It also claims that the law is void for vagueness.  Dr. Schwartz in an Orthodox Jew who identifies with the Lubavitcher movement, and virtually all of his patients are Orthodox Jews.  The complaint alleges in part:

Dr. Schwartz’s patients, as well as their views about morality, human nature, and the possibility of change, are often deeply informed by their religious beliefs. These individuals believe that it is more important to live consistently with their religious values than to conform their lives to their subjective feelings. Because Dr. Schwartz shares that faith and those convictions, he is able to provide psychotherapy that understands, respects, and assists these patients towards their goals.

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

HHS Exempts South Carolina Foster Care From Religious Anti-Discrimination Rule

In a letter (full text) dated Jan. 23, 2019, the U.S. Department of Health and Human Services granted the state of South Carolina an exemption so that faith-based foster care placement agencies operating in the state (such as Miracle Hill Ministries) can receive federal funds even though they select foster parents on the basis of religion.  HHS emphasized that the anti-discrimination requirements found in its rules are broader than those in the Foster Care Program statute which only bars discrimination on the basis of race, color or national origin in selection of adoptive or foster parents. HHS said it had determined that requiring faith-based agencies to comply with the non-discrimination provision would be inconsistent with the Religious Freedom Restoration Act. However such agencies would be required to refer them to other agencies that do not use religious criteria, at least so long as such referrals do not violate the agency's religious beliefs. Philadelphia Inquirer reports on the HHS action.

Belgium's Top Court Hears Arguments On Kosher/ Halal Slaughter Ban

Hamodia reports on lengthy oral arguments yesterday before Belgium's Council of State-- the country's highest court-- on laws that effectively ban kosher and halal slaughter by requiring animals be stunned before slaughter.  The ban has been enacted in Wallonia and Flanders regions. Separate suits were filed challenging each of the laws. (See prior posting). Jewish and Muslim groups claim that the laws violate Belgium's constitution and the European Union's Charter of Rights. According to Hamodia's report:

During the session, attorneys summarized the arguments submitted in briefs in December 2017, when the case was filed. Key points that Jewish groups have made are that, in addition to the law’s violation of freedom of religion, the law inhibits the professions of shochtim and kosher butchers and discriminates against Jews and Muslims. Briefs also cite fishermen and hunters as examples of groups who kill animals in different ways but are unfettered by the law....

The high court will likely release some response on the case in the coming months, but it might avoid a decision for the time being by referring the matter to the EU’s Court of Justice in Luxemburg. Should they take this route, a final decision could be delayed by more than a year.

Suit Over Forced Removal of Hijab To Enter Courthouse Is Dismissed

In Elqutt v. Regalado, (ND OK, Jan. 22, 2019), an Oklahoma federal district court dismissed without prejudice a suit by a Muslim woman who was required to remove her hijab to gain entry to the Tulsa County Courthouse. After setting off metal detectors, sheriff's deputies insisted that Suha Elqutt remove her hijab in front of male deputies. After extensive discussions, she was permitted to remove it in a nearby parking lot while crouching between parked cars with only female deputies present, though she claims men could have walked past her as well.   Dismissing her claim for damages for violation of her free exercise rights, the court held that defendants had qualified immunity because they would not have been put on notice by clearly established law that they were violating her constitutional rights. The court also denied her an injunction because she had not alleged a likelihood that she would return to the courthouse and face similar future actions.  Tulsa World reports on the decision.

Florida Governor Acts In Response To Airbnb Israel West Bank Boycott

As previously reported, last November Airbnb under pressure from Palestinian officials, anti-settlement advocates and human rights groups announced that it is removing listings for rentals in Israeli settlements in the West Bank. Now, in a Jan. 15, 2019 letter (full text), Florida Governor Ron DeSantis has responded to the Airbnb action by ordering the state Department of Management Services to cease reimbursements to state employees for their stays arranged through Airbnb while on official state business. Also all state contracts must now bar such reimbursements to contractors. A January 15 press release by the Governor, calling the "Boycott, Divestment, Sanctions" movement "nothing more than a cloak for anti-Semitism," announced, several initiatives, including $2 million in funding for security for Jewish day schools, that he said makes Florida the "most Israel-friendly state in the country."

Iowa's "Fetal Heartbeat" Abortion Law Held Unconstitutional

In Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., Jan. 22, 2019), an Iowa state trial court judge held that Iowa's "fetal heartbeat" abortion law violates the Iowa state constitution.  Relying in large part on a 2018 Iowa Supreme Court decision which held that any limit on a woman's right to choose must meet the strict scrutiny test, the court said in part:

[I]t is undisputed that the threshold for the restriction upon a woman’s fundamental right to terminate a pregnancy (the detection of a fetal heartbeat) contained within Iowa Code chapter 146C constitutes a prohibition of previability abortions.  As such, it is violative of both the due process and equal protection provisions of the Iowa Constitution as not being narrowly tailored to serve the compelling state interest of promoting potential life.  Accordingly, this court grants the petitioners’ motion for summary judgment and declares Iowa Code chapter 146C unconstitutional and therefore void.... The petitioners’ request for injunctive relief will also be granted.

Townhall reports on the decision.

European Court: Austria's Law Giving Good Friday Off Only For Christians Violates EU Directive

In Cresco Investigation GmbH v. Achatzi, (ECJ, Jan. 22, 2019), the European Court of Justice held that Austria's law which makes Good Friday a holiday only for employees who are members of specified Christian churches and which requires additional pay for them if they must work that day violates European Council Directive 2000/78/EC on equal treatment in employment. The Court went on to hold:

Article 21 of the Charter of Fundamental Rights of the European Union must be interpreted as meaning that, until [Austria] has amended its legislation ..., in order to restore equal treatment, a private employer who is subject to such legislation is obliged also to grant his other employees a public holiday on Good Friday....

Courthouse News Service reports on the decision.

Settlement Filed In Louisiana Religion In Schools Case

Yesterday a settlement agreement was filed with a Louisiana federal district court in Does 1-4 v. Bossier Parish School Board.  In the case (see prior posting), plaintiffs claimed widespread Establishment Clause violations in classrooms at at school events.  As part of the settlement, the school board has adopted a revised religious expression policy.  KTBS News reports that both sides are stressing elements of the settlement that they consider victories:

Americans United said provisions of the settlement include:

• Creation of a monitoring committee to review and resolve potential violations or disputes involving religious freedom.
• An agreement by the School Board to create, expand or seek out appropriate facilities to minimize the need to hold school events in places of worship.
• A commitment to protecting the rights of all Bossier students to pray in school, as long as the prayers are initiated by students, aren’t disruptive and don’t occur during class time.
• Permission for Bossier teachers to teach about religion in an objective manner, but not proselytize students.

The School Board said the agreement also includes the following:

• Students maintain the right to pray at school and at school events.
• Students will be allowed to speak about religion at school events.
• Does not penalize school employees who bow their heads when prayers are offered.
• Allows teachers to teach about religion in an objective manner.
• Allows student clubs of all kinds, including Fellowship of Christian Athletes, to continue to organize, meet and be active on campus.
• Allows students to express their own ideas verbally and to distribute literature.
• Allows employees to wear items of jewelry that include symbols associated with religion

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.