Monday, February 11, 2019

Recent Articles and Book of Interest

From SSRN:
From SmartCILP:
Recent Book:
  • Douglas Laycock, Religious Liberty (set of 5 volumes), (Wm. B. Eerdmans Publishing Co, Nov. 2018).

Sunday, February 10, 2019

Immunization Order Did Not Violate Mother's Free Exercise Rights

In In re Julie C.and Anthony Price, 2019 Cal. App. Unpub. LEXIS 935 (CA App., Feb. 6, 2019), a California state appellate court held that a wife's free exercise rights were not violated by a court order in a divorce proceeding requiring immunization of her children.  In 2016, California repealed the personal belief exemption from immunization requirements for school children. The court ordered the immunizations on motion of the husband, finding that immunization was in the best interest of the children. (Corrected. Earlier version referred to wrong court).

Friday, February 08, 2019

House Dust Up Over Absence of "So Help Me God" In Oaths By Committee Witnesses

USA Today reported yesterday that Republican Louisiana Congressman Mike Johnson, new chairman of the Republican Study Committee, as well as some other Republicans, are charging that Democrats in the House are making a concerted effort to eliminate the phrase "so hep me God" when they administer oaths to committee witnesses. The charges come after incidents in the House Judiciary Committee and House Natural Resources Committee. [Thanks to Scott Mange for the lead.]

4th Circuit Allows Church To Move Ahead With Challenges To Zoning Denial

In Jesus Christ Is the Answer Ministries, Inc. v. Baltimore County, Maryland, (4th Cir., Feb. 7, 2019), the U.S. 4th Circuit Court of Appeals, reversing a Maryland federal district court, refused to dismiss a church's complaint regarding zoning denials that prevented it from operating a church on land that its pastor had purchased. The court held that plaintiffs had sufficiently alleged a substantial burden on their religious practice and discrimination based on religious denomination under RLUIPA. The court said in part:
Particularly relevant to this case, a government decision influenced by community members’ religious bias is unlawful, even if the government decisionmakers display no bias themselves.
The court also vacated the lower court's dismissal of plaintiffs' free exercise, equal protection and state constitutional claims. [Thanks to Will Wsser via Religionlaw for the lead.]

Supreme Court Keeps Injunction Against Louisiana Abortion Law In Effect

In June Medical Services, L.L.C. v. Gee, (US Sup. Ct. Feb. 7, 2019), a case involving Louisiana's new abortion law, the U.S. Supreme Court by a 5-4 vote prevented the law from going into effect pending the filing of a petition for certiorari.  A 5th Circuit Court of Appeals decision  had stayed a district court's injunction against the law.  Now the Supreme Court has stayed the 5th Circuit's action. At issue is a facial challenge to Louisiana's law that requires doctors at abortion clinics to have admitting privileges at nearby hospitals.  Challengers had argued that this would leave only one abortion clinic operating in the state.  In allowing the law to go into effect, the 5th Circuit questioned that conclusion.  In the Supreme Court, Justices Thomas, Alito, Gorsuch and Kavanaugh would have denied the application so that the law could take effect.  Justice Gorsuch, writing only for himself, filed an opinion saying that:
I would deny the stay without prejudice to the plaintiffs’ ability to bring a later as-applied complaint and motion for preliminary injunction at the conclusion of the 45-day regulatory transition period if the Fifth Circuit’s factual prediction about the doctors’ ability to obtain admitting privileges proves to be inaccurate.
NBC News reports on the decision.

Supreme Court Vacates Execution Stay of Muslim Inmate Who Wanted Imam At His Side

By a 5-4 vote, the U.S. Supreme Court yesterday vacated the the stay of execution that had been granted the day before by the U.S. 11th Circuit Court of Appeals to a Muslim inmate who wanted to have his Imam present in the execution chamber when he was executed by lethal injection. (See prior posting.) In Dunn v. Ray, (US Sup. Ct., Feb. 7, 2019), the majority said it was granting the state's application because the inmate had waited until ten days before his Feb. 7 execution date to seek relief.  Justice Kagan, joined by Justices Ginsburg, Breyer and Sotomayor dissented, saying in part:
Here, Ray has put forward a powerful claim that his religious rights will be violated at the moment the State puts him to death. The Eleventh Circuit wanted to hear that claim in full. Instead, this Court short-circuits that ordinary process—and itself rejects the claim with little briefing and no argument—just so the State can meet its preferred execution date.
Pro Publica has a lengthy report on Domineque Ray and his murder trial.

President Addresses National Prayer Breakfast

Yesterday President Trump delivered a 20-minute address to the 2019 National Prayer Breakfast. (Full text). The President emphasized his positions and actions his Administration has taken on numerous issues including human trafficking, abortion and faith-based adoption agencies. Trump said in part:
As President, I will always cherish, honor, and protect the believers who uplift our communities and sustain our nation. To ensure that people of faith can always contribute to our society, my administration has taken historic action to protect religious liberty.

Special Envoy To Monitor Anti-Semitism Is Appointed

On Tuesday, Secretary of State Mike Pompeo announced the appointment of  Elan S. Carr as the United States Envoy to Monitor and Combat Anti-Semitism.  The State Department has posted Carr's biography. Most recently he served as Deputy District Attorney for Los Angeles County.  He is an Iraq War veteran and the son of Iraqi Jewish refugees.  As reported by Times of Israel, the Envoy position has been vacant for two years. Last month the House of Representatives passed HR 221 that would have given the Envoy ambassadorial rank and have required the President to nominate someone for the position within 90 days.

Settlement Reached In Church's Suit Over Homeless Shelter Restrictions

Twin Cities Pioneer Press reports that on Wednesday the St. Paul, Minnesota City Council approved a settlement in a lawsuit filed against it by First Lutheran Church over hosting Listening House, a day shelter for the homeless, in the Church's basement.  Last July, a federal district court issued a preliminary injunction as to two of the conditions imposed on the use. (See prior posting.) A settlement was reached with Listening House in December. Under this week's settlement with the Church, the city agrees to alert religious institutions on its zoning forms of their RLUIPA rights, and to conduct a study of better procedures for land use applications by religious institutions. [Thanks to Evan Berquist for the lead.]

Thursday, February 07, 2019

Russian Court Sentences Jehovah's Witness To 6 Years In Prison

Forum 18 reports that after 74 hearings over the past year, a Russian trial court in the city of Oryol yesterday sentenced Jehovah's Witness adherent Dennis Christensen to six years in prison under Russia's law banning extremist organizations. The court convicted Christensen of "organizing the activities of a banned extremist organisation" (Criminal Code Article 282.2, Part 1).  An appeal is planned. Christensen becomes the first Jehovah's Witness sentenced to prison in post-Soviet Russia.  Over 100 other criminal cases against Jehovah's Witnesses are pending.  In 2017, Russia's Supreme Court banned all Jehovah's Witness activity and ordered their property seized by the state. (See prior posting.)  Christensen will be entitled to credit for time already served in jail, and so will likely serve no more than 3 years and 5 months in prison. [Thanks to Scott Mange for the lead.]

11th Circuit Grants Stay of Execution To Muslim Inmate Whose Imam Would Be Excluded From Execution Chamber

In Ray v. Commissioner, Alabama Department of Corrections, (11th Cir., Feb. 6. 2019), the U.S. 11th Circuit Court of Appeals granted an emergency stay of execution to a Muslim inmate on death row whose request to have his Imam with him during his execution by lethal injection was denied by prison authorities.  Prison rules call for the prison chaplain-- a Christian-- to be in the execution chamber, but allow his Imam to be only in the adjoining witness room. The prison was willing to waive the requirement for the Christian chaplain to be present, but was not willing to allow his Imam to be in the chamber.  The appeals court concluded that this amounts to an Establishment Clause violation, saying in part:
The central constitutional problem here is that the state has regularly placed a Christian cleric in the execution room to minister to the needs of Christian inmates, but has refused to provide the same benefit to a devout Muslim and all other non-Christians.
Alabama appears to have set up “precisely the sort of denominational preference that the Framers of the First Amendment forbade.”
The court went on:
We acknowledge again that we owe deference to the state’s assessment of its security requirements, and we are reluctant to substitute our judgment for the Commissioner’s.... But we cannot simply rely on the unexplained ipse dixit of the state that there are no less restrictive means in the face of Alabama’s obvious denominational preference. To do so would ignore our constitutional obligations and the unambiguous command of the First Amendment that forbids the state from putting its power, prestige, and support behind one religious belief to the exclusion of all others. It remains the state’s burden to demonstrate that there are no other less restrictive means by which to protect its interests....
The court added:
Ray’s claim may well fit under the rubric of RLUIPA as well, though it seems to us more naturally framed by the Establishment Clause.
AP reports on the decison. [Thanks to Doug Velardo for the lead.] 

Christian Student Group Wins Injunction

In Business Leaders in Christ v. University of Iowa, (SD IA, Feb. 6, 2019), an Iowa federal district court granted a permanent injunction and awarded nominal damages to a Christian student group that was denied Registered Student Organization status. The denial was based on the University's Human Rights Policy that prohibits discrimination, among other things, on the basis of sexual orientation.  The student organization denied an executive committee spot to a gay student. In finding free speech and free exercise violations, the court said in part:
The Court suspects that some observers will portray this case as a fundamental conflict between nondiscrimination laws and religious liberty. Appealing as that may be, it overinflates the issues before the Court. The Human Rights Policy promotes valuable goals for both the University and society at large. There is no fault to be found with the policy itself. But the Constitution does not tolerate the way Defendants chose to enforce the Human Rights Policy.  Particularly when free speech is involved, the uneven application of any policy risks the most exacting standard of judicial scrutiny, which Defendants have failed to withstand.
Becket issued a press release announcing the decision.

Wednesday, February 06, 2019

Excerpts of Interest From President Trump's State of the Union Address

President Trump delivered his State of the Union address to Congress last night. (Full text). Here are some excerpts that are of interest to those concerned with religious liberty and church-state issues:
We can make our communities safer, our families stronger, our culture richer, our faith deeper, and our middle class and more prosperous than ever before...
To help support working parents, the time has come to pass school choice for America’s children....
There could be no greater contrast to the beautiful image of a mother holding her infant child than the chilling displays our nation saw in recent days. Lawmakers in New York cheered with delight upon the passage of legislation that would allow a baby to be ripped from the mother’s womb moments before birth. These are living, feeling, beautiful babies who will never get the chance to share their love and dreams with the world. And then, we had the case of the governor of Virginia where he stated he would execute a baby after birth. To defend the dignity of every person, I am asking the Congress to pass legislation to prohibit the late-term abortion of children who can feel pain in the mother’s womb. Let us work together to build a culture that cherishes innocent life.
And let us reaffirm a fundamental truth — all children — born and unborn — are made in the holy image of God....
And last fall, we put in place the toughest sanctions ever imposed on a country. We will not avert our eyes from a regime that chants death to America and threatens genocide against the Jewish people. We must never ignore the vile poison of anti-semitism, or those who spread its venomous creed. With one voice, we must confront this hatred anywhere and everywhere it occurs.
Just months ago, 11 Jewish-Americans were viciously murdered in an anti-semitic attack on the tree of life synagogue in Pittsburgh. Swat officer timothy Matson raced into the gunfire and was shot seven times chasing down the killer. And he was very successful. Timothy has just had his 12th surgery and he is going in for many more, but he made the trip to be here with us tonight. Officer Matson, please.
Thank you. We are forever grateful. Thank you very much. Tonight, we are also joined by Pittsburgh survivor Judah Samet. He arrived at the synagogue as the massacre began. But not only did Judah narrowly escape death last fall — more than seven decades ago, he narrowly survived the Nazi concentration camps. Today is Judah’s 81st birthday....
A second holocaust survivor who is here tonight, Joshua Kaufman, was a prisoner at Dachau. He remembers watching through a hole in the wall of a cattle car as American soldiers rolled in with tanks. “to me,” Joshua recalls, “the American soldiers were proof that God exists, and they came down from the sky.” they came down from heaven. I began this evening by honoring three soldiers who fought on d-day in the second world war. One of them was Herman Zeitchik. But there is more to Herman’s story. A year after he stormed the beaches of Normandy, Herman was one of those American soldiers who helped liberate Dachau.

Law Student Religious Liberty Writing Competition Announced

The J. Reuben Clark Law Society has published an announcement of its 10th Annual Religious Liberty Writing Competition.  The competition is open to law students and to students pursuing related graduate studies.  Papers must be submitted by July 1.

Tuesday, February 05, 2019

Wisconsin Supreme Court Candidate Says Calls For Recusal Promise Are Attacks On His Religious Beliefs

Milwaukee Journal Sentinel reports on the controversy surrounding 2005- 2006 law school blog posts of a state appeals court judge Brian Hagedorn who is a candidate for the state Supreme Court in the upcoming April 2 election in Wisconsin.  As reported in an earlier Journal-Sentinel article, the posts sharply criticized the U.S. Supreme Court's ruling overturning anti-sodomy laws. saying they could lead to the legalization of bestiality. Hagedorn also attacked Planned Parenthood as an organization that was more devoted "to killing babies than to helping women." Critics have called for Hagedorn to promise to recuse himself in cases involving same-sex relationships and Planned Parenthood. In a radio interview, Hagedorn, an evangelical Christian, says that the criticism of his posts and calls for recusal are attacks on his religious beliefs.

Victims of Mass Church Shooting Can Sue Seller of Weapon

AP reports that a Texas state trial court judge has ruled that the victims of a 2017 mass shooting in a Sutherland Springs (TX) church can move ahead with a lawsuit against the sporting goods store where the gunman purchased his assault rifle and ammunition. The First Baptist Church shooting by Devin Kelly killed 26 and injured 20 others.

Monday, February 04, 2019

Uganda's Jewish Community Is Split Over Financial Charges and Religious Differences

Haaretz yesterday reported on the controversy-- which has now made its way into the courts-- between factions in Uganda's Jewish community, known as the Abayudaya.  The community's rabbi, Rabbi Gershom Sizomu, has been charged by his half-brother, Joab Jonadab Keki, with mismanagement of the community's funds and property.  Keki has asked a Ugandan court to remove Sizomu as rabbi, claiming he has taken community funds for himself and his family.  Sizomu's supporters deny the charges and have filed a counter-claim. Apparently the controversy also has roots in the attempt by Keki to move the community toward Orthodox Judaism.  Rzbbi Siaomu has completed his rabbinic studies in Los Angeles at the Conservative Jewish seminary, the Ziegler School.  The Orthodox rabbinate in Israel refuses to recognize the Abayudaya as Jewish because the community was converted by Conservative rabbis.

New Study Says Hijab or Niqab Creates Positive Bias Toward Witnesses

Pakistan's Daily Times reports on the surprising results of an academic study on the impact of witnesses wearing Islamic head coverings in the court room:
Sexual assault victims wearing the hijab or niqab are viewed more positively when testifying in court than uncovered women, reveals a study that aimed to investigate the importance of being able to see the face to judge credibility among witnesses, along with the importance of religious garments.
Contrary to expectations, the study led by researchers from the Lancaster University in the UK and Memorial University of Newfoundland in Canada, found that “positive biases” are created when women testify in court with either their hair covered (the hijab) or their face and hair covered (the niqab).
The reason for the bias could be because the religious garments may signal that the wearer is more honest because of a positive view of religion.
The Muslim garment may dispel the common rape myth that the sexual assault victim was “asking for it” because it represents sexually conservative attitudes that are thought to disapprove of pre-marital or casual sexual encounters, the researchers explained.

Recent Articles of Interest

From SSRN:

Sunday, February 03, 2019

Recent Prisoner Free Exercise Cases

In DeMarco v.Davis, (5th Cir., Jan. 28, 2019), the 5th Circuit allowed an inmate to proceed against one defendant on his complaint regarding seizure of his religious material.

In Williams v. Las Vegas Metropolitan Police Department, 2019 U.S. Dist. LEXIS 12878 (D NV, Jan. 25, 2019), a Nevada federal district court allowed an inmate to move ahead with his claim that he was denied a food tray because he requested kosher food.

In Tormasi v. Lanigan, 2019 U.S. Dist. LEXIS 13028 (D NJ, Jan. 28, 2019), a New Jersey federal district court allowed a inmate "independently engaged in Jewish self-practice" to move ahead with some of his claims growing out of the prison's denial of his request for a religious circumcision.

In Brooks v. Cape Girardeau County, 2019 U.S. Dist. LEXIS 13847 (ED MO, Jan. 29, 2019), a Missouri federal district court dismissed an inmate's complaint that he has been denied a kosher diet.

In Barfell v. Aramark Correctional Services, 2019 U.S. Dist. LEXIS 13945 (ED WI, Jan. 29, 2019), a Wisconsin federal district court dismissed an inmate's complaint that his request for vegan meals was not approved for 5 days.

In Weathersby v. Ituah, 2019 U.S. Dist. LEXIS 15385 and Mitchell v. Ituah, 2019 U.S. Dist. LEXIS 15769 (SD TX, Jan. 31, 2019), a Texas federal district court dismissed a Muslim inmate's complaint that on one occasion inmates were not told that an evening meal consisting of "Beenies and Weenies" contained pork.