Egypt Will Build Synagogues For Any Resurgent Jewish Community

Jerusalem Post and JTA report that Egypt's President Abdel Fattah el-Sisi told a U.S. delegation last week that if a Jewish community is re-established in Egypt, the government will build synagogues and communal institutions for it. Sisi also promised to clean up the ancient Bassatine  Jewish Cemetery in Cairo.  The U.S. delegation was comprised of members of the Anwar Sadat Congressional Gold Medal Commission, which had obtained passage of a law to posthumously grant the late Egyptian President Anway Sadat the Congressional Gold Medal.  The delegation invited Sisi to attend the award ceremony this fall.  Earlier this month the United Arab Emirates formally recognized its small Jewish community.

European Court: Romania's Conviction of Dismissed Clergy For Conducting Services Violated Religious Protections

Law & Religion UK reports at length on the decision of the European Court of Human Rights  In Tothpal and Szabo v Romania, (ECHR, Feb. 19, 2019) (full text of opinion in French).  In the case, the Court held that Romania had violated Art. 9 of the European Convention on Human Rights (freedom of thought, conscience and religion) when it convicted a Lutheran pastor and a Reformed Church minister of acting as clerics without authorization of their respective churches.  In each case, the clergyman had been dismissed from his position with his congregation, but continued to conduct religious services for some of the congregation members who disagreed with their dismissals.  The Court issued an English language press release summarizing the decision.

HHS Issues Final Rule Changes For Title X Family Planning Programs

In a 312-page release (full text) issued on Friday, the Department of Health and Human Services issued final rules revising regulation of its Title X family planning program. The new rules are scheduled to take effect 60 days after their publication in the Federal Register.  According to the release:

This rule ... will ensure compliance with, and enhance implementation of, the statutory requirement that none of the funds appropriated for Title X may be used in programs where abortion is a method of family planning, as well as related statutory requirements.....  The rule also clarifies that provision of family planning services under Title X may be available under the good reason exception at the discretion of the project director for women denied coverage for contraceptives if the sponsor of their health plan exercises a religious or moral exemption recognized by the Department.

The new rules, according to Politico:

could effectively cut off tens of millions of federal family planning dollars to Planned Parenthood and steer some of that funding towards anti-abortion, faith-based care providers....

It would ... bar Planned Parenthood and other health care providers that accept the funding from making any abortion referrals or performing abortions — regardless of the funding source — at the same facilities where they provide Title X services like birth control, mammograms and cancer screenings.

One of the rule changes eliminates the requirement that Title X programs provide abortion referral if requested.  The release says that this requirement conflicted with statutes protecting conscience in health care. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Ronald J. Rychlak, Book Review: András Fejérdy, Editor, the Vatican “Ostpolitik” 1958–1978: Responsibility and Witness During John XXIII and Paul VI, (22 Catholic Social Science Review).
• Michael O. Leavitt, Shared Spaces and Brave Gambles, in Religious Freedom, (Chapter 33 in Religious Freedom, LGBT Rights and the Prospects for Common Ground (William N. Eskridge & Robin Fretwell Wilson, eds.), 2018).
• J. Stuart Adams, Cultivating Common Ground: Lessons from Utah for Living With Our Differences, (Chapter 32,Religious Freedom, LGBT Rights and the Prospects for Common Ground (William N. Eskridge & Robin Fretwell Wilson, eds., 2018).
• Elder Von G. Keetch, Toward Collaboration: A Perspective from The Church of Jesus Christ of Latter-day Saints, (Chapter 14 in Religious Freedom, LGBT Rights and the Prospects for Common Ground(William N. Eskridge & Robin Fretwell Wilson,eds. 2018).
• Adrienne Stone, Viewpoint Discrimination, Hate Speech Law and the Double-Sided Nature of Freedom of Speech, (Constitutional Commentary, Vol. 32, No. 3, 2017, 687-696).
• Tarunabh Khaitan, The Point of Discrimination Law, (The Empire of Disgust: Prejudice, Discrimination, and Policy in India and the US (Martha Nussbaum, Zoya Hasan, Aziz Huq, Vidhu Verma eds, OUP 2018)).

Pope Francis Addresses Bishops' Summit On Protection of Minors

New York Times reports today:

Pope Francis ended a landmark Vatican meeting on clerical sexual abuse with an appeal “for an all-out battle against the abuse of minors,” which he compared to human sacrifice, but his speech did not offer concrete policy remedies demanded by many of the faithful.

Zenit has both extensive excerpts and the full text of the Pope's remarks ending the Summit on the Protection of Minors in the Church, Feb. 21-24, 2019 attended by some 190 bishops.

Recent Prisoner Free Exercise Cases

In Maye v. Klee, (6th Cir., Feb. 14, 2019), the 6th Circuit denied qualified immunity to prison officials who refused to allow Nation of Islam members participate in the prison's Eid al-Fitr celebration.

In Whitney v. Furgerson, 2019 U.S. Dist. LEXIS 21818 (MD PA, Feb. 8, 2019), a Pennsylvania federal magistrate judge recommended that an inmate's complaint that he was not allowed to purchase or carry beads or cowry shells should be dismissed without prejudice for improper joinder with other claims and of defendants.

In Hall v. Hamilton, 2019 U.S. Dist. LEXIS 22238 (WD NC, Feb. 11, 2019), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that inmates are required to go to the showers only in boxers while his religion requires him to be clad from waist to ankles.

In Rodriguez v. Dzurenda, 2019 U.S. Dist. LEXIS 23164 (D NV, Feb. 13, 2019), a Nevada federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 221326, Dec. 17, 2018) and refused to issue a preliminary injunction to require prison authorities to formally recognize Satanism and allow practice of the faith.

In Collins v. Brockbridge Correctional Facility, 2019 U.S. Dist. LEXIS 23207 (D MD, Feb. 12, 2019), a Maryland federal district court dismissed for failure to exhaust administrative remedies an inmate's claim that strip searches violated his religious freedom rights.

In Shields v. Khan, 2019 U.S. Dist. LEXIS 23761 (SD CA, Feb. 13, 2019), a California federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his complaint that his name was removed from the Ramadan list.

In Tatum v. Lucas, 2019 U.S. Dist. LEXIS 25020 (ED WI, Feb. 15, 2019), a Wisconsin federal district court dismissed a Nation of Islam inmate's complaint that he did not receive a meatless diet and that correctional officers mocked his religious beliefs.

Christian School May Use Oregon's Religious Exemption To Reject Jewish Faculty Applicant

In King v. Warner Pacific College, (OR App, Feb. 21, 2019), an Oregon state appellate court held that a Christian college's refusal to hire a Jewish applicant for a position as adjunct professor of psychology falls within the religious preference exemption to Oregon's non-discrimination law.  ORS 659A.006(4)provides:

It is not an unlawful employment practice for a bona fide ... religious institution, including ... a school... to prefer an employee, or an applicant for employment, of one religious sect or persuasion over another if:  (a) The religious sect or persuasion to which the employee or applicant belongs is the same as that of the ... institution; ... [and]  (c) The employment involved is closely connected with or related to the primary purposes of the ... institution....

The court held that the exemption allows the school to reject a non-Christian applicant and await a later hiring cycle to fill the position, or to assign the work to an existing Christian employee.  A majority of the judges also held that this particular faculty position met the requirement of being closely connected to the school's religious purpose.

Federal District Court Rejects Satanic Temple Follower's Challenge to Missouri Abortion Restrictions

In Doe v. Parson, (ED MO, Feb. 21, 2019), a Missouri federal district court rejected both Establishment Clause and free exercise challenges to Missouri's abortion law.  The suit, filed by a member of the Satanic Temple, challenges the requirement that health care providers furnish women seeking an abortion in Missouri a state-prepared booklet that states, in part, that life begins at conception.  The woman must also be given an opportunity to view an active ultrasound, must sign a certification that she has received the booklet and ultrasound opportunity, and must wait 72 hours before the procedure can be performed.  The court held that

Even though [statements in the booklet] are harmonious with some religious beliefs, they are a permissible expression of the State’s secular interest in protecting the unborn.

The court went on to reject plaintiff's free exercise claim, holding that the Missouri requirements are neutral laws of general applicability.  Earlier this month, the Missouri Supreme Court rejected a similar challenge to Missouri's requirements. (See prior posting.)

Recent Prisoner Free Exercise Cases

In Warner v. Friedman, 2019 U.S. Dist. LEXIS 19465 (ND CA, Feb. 6, 2019), a California federal district court allowed an inmate to move ahead with his claim that he is still not being provided an acceptable kosher diet.

In Quintero v. Bisbee, 2019 U.S. Dist. LEXIS 19760 (D NV, Feb. 7, 2019), a Nevada federal district court rejected a magistrate's recommendation (2018 U.S. Dist. LEXIS 221068, Oct. 10, 2018) and allowed an inmate to move ahead with his challenge to regulations that exclude'religious activities' from being rewarded by time off sentence.

In Rivers v. Dumont, 2019 U.S. Dist. LEXIS 20144 (MD PA, Feb. 6, 2019), a Pennsylvania federal magistrate judge recommended dismissing plaintiff's claim that his free exercise rights were infringed when police, before his arrest, accosted him on the sidewalk outside his apartment while he was speaking to Allah.

In Noor v. Pigniolo, 2019 U.S. Dist. LEXIS 20318 (ED CA, Feb. 7, 2019), a California federal magistrate judge dismissed with leave to amend an inmate's claim that his free exercise rights were infringed when the prison's library assistant racially profiled him by calling him a terrorist.

In Luther v. White, 2019 U.S. Dist. LEXIS 20486 (WD KY, Feb. 6, 2019), a Kentucky federal district court allowed a Bobo Shanti Rastafarian inmate to move ahead with some claims regarding removal of his dreadlocks and right to purchase and use incense.  Various other claims were dismissed.

In Blake v. Donovan, 2019 U.S. Dist. LEXIS 20937 (WD WI, Feb. 7, 2019), a Wisconsin federal district court dismissed on exhaustion grounds an inmate's complaint regarding access to a new type of Pagan prayer oil. It also deniedhis motion to be considered as an expert in Pagan and Asatru theology.

In Toney v. Harrod, 2019 U.S. Dist. LEXIS 21580 (D KA, Feb. 11, 2019), a Kansas federal district court denied qualified immunity to defendant correctional officer being sued by a Muslim inmate who complained that he should have received breakfast during Ramadan before dawn, and not merely before sunrise which is later.

Tax Preparer Refuses To Prepare Joint Return For Same-Sex Couple

Washington Post reports on the latest clash between religious liberty assertions and non-discrimination principles:

For four years, Bailey Brazzel says, she had employed the same tax preparer, Nancy Fivecoate of Carter Tax Service in Russiaville, Ind. Fivecoate prepared the taxes without issue each time — until this year, when Brazzel brought her new wife, Samantha.

Fivecoate declined to serve the couple, citing her religious beliefs.

This was the first year the Brazzels, who wed in July, were filing jointly as a married couple. According to Samantha, Fivecoate explained that she believed marriage was between a man and a woman and that she would therefore not be able to prepare their taxes.

Indiana does not have a statewide law barring discrimination on the basis of sexual orientation. (See prior related posting.) [Thanks to Nathan Walker for the lead.]

Air Force JAG OK's Religious References At Change of Command Ceremonies

In a legal opinion issued last December which is just now attracting attention, the U.S. Air Force Judge Advocate General has issued an opinion on the permissible extent of religious references during a change of command ceremony.  In OpJAGAF 2018-52 (Dec.19, 2018), the Air Force ruled:

[A] commander may:  briefly thank a Supreme Being (either generally, such as Providence, that Almighty Being, our Lord, or the Supreme Author of All Good; or specifically, such as Allah, Brahman, Christ, Ganesh, God, Yahweh, or even Beelzebub), have an invocation, and choose whomever he or she would like to provide the invocation. If the commander holds a personal promotion ceremony on the same day, a significant break must occur between the change of command and promotion ceremony in order for the commander to be freer in expressing his or her personal religious beliefs.  If a break does not occur, the commander must limit his or her religious comments to comments that are appropriate at the official change of command.

Friendly Atheist and Rewire News  report on the ruling.  The Military Religious Freedom Foundation plans to challenge the ruling.

Class Action Filed Hours After New York's Child Victims Act Is Signed

Just hours after New York's new Child Victims Act extending the statute of limitations for sex abuse claims was signed into law (see prior related posting), a class action lawsuit was filed in federal district court for the Northern District of New York. Rome (NY) Sentinel reports in part:

The Rev. Paul F. Angelicchio, of Rome, has been named in a lawsuit accusing him of sexually abusing a teenage altar boy when the priest worked at a church in Onondaga County in the late 1980s.

... Angelicchio was placed on a leave of absence by the Roman Catholic Diocese of Syracuse in late 2016 to investigate the claims. Church officials deemed the accusations not credible at the time and Angelicchio soon returned to service.

The lawsuit, filed on Feb. 14, also accuses two Syracuse-area priests who were named by the Diocese in December as having “credible” accusations of sexual abuse made against them. Those priests, Charles Eckermann and James F. Quinn, are both deceased.

Angelicchio was not among the priests listed by the Diocese in December.

D.C.Circuit: Conspiracy Suit Against U.S. Supporters of Israeli Settlers Is Not "Political Question"

In an important decision, the U.S. Court of Appeals for the District of Columbia Circuit has held that a suit against high profile Americans by 18 Palestinians and a Palestinian village council over defendants' support for the Jewish settler movement in the West Bank and Gaza may move forward. In Al-Timimi v. Adelson, (DC Cir., Feb. 19, 2019), the court summarized its holding:

The plaintiffs, both Palestinian nationals and Palestinian Americans, claim the defendants, pro-Israeli American individuals and entities, are conspiring to expel all non-Jews from territory whose sovereignty is in dispute. They sued in federal district court, pressing four claims: (1) civil conspiracy, (2) genocide and other war crimes, (3) aiding and abetting genocide and other war crimes and (4) trespass. Concluding that all four claims raise nonjusticiable political questions, the district court dismissed the complaint for lack of subject matter jurisdiction. We now reverse....

The suit claims that defendants-- 8 high net-worth individuals (including Sheldon Adelson and John Hagee), 13 tax exempt organizations (including the Jewish Naional Fund), 2 banks, 8 construction and support firms and former U.S. National Security Advisor Elliott Abrams conspired to funnel millions of dollars to Israeli settlements which funded "a militia of Israeli settlers [trained] to kill Palestinians and confiscate their property."

In a 21-page opinion, the court concluded:

[T]he plaintiffs’ claims present only one jurisdiction-stripping political question: who has sovereignty over the disputed territory. But a claim whose resolution also includes resolution of a political question can be dismissed on that basis only if the political question is “inextricable.” ... We believe this political question is extricable."

Reuters reports on the decision.

Baptist College's Attempt To Exit Baptist Convention Control Involves Ecclesiastical Determinations

In Executive Board of the Missouri Baptist Convention v. Missouri Baptist University, (MO App., Feb. 19, 2019), a Missouri state appellate court rejected attempts by Missouri Baptist University and The Baptist Home to amend their Articles of Incorporation to eliminate the Missouri Baptist Convention's right to select members of their boards of trustees and its right to veto amendments to their Articles.  The attempts to extricate themselves from Convention control followed an ideological battle within the Convention that moved it to the right.  In part the court held that certain affirmative defenses raised by the University concern ecclesiastical matters which civil courts cannot decide, saying:

[T]he University alleges that the Convention demanded that it ... refrain from teaching material that contradicted certain ideas which are clearly religious doctrine, such as the belief that the Earth was created in seven days roughly 6,000 years ago, or the belief that every living thing on Earth is descended from animals rescued from a flood on a vessel roughly 4,300 years ago.... The University claims that these demands ... “anticipatorily breached” provisions of a document entitled “A Christian Higher Education: A Statement of Purpose” which states ... that “... Christian education proceeds without fear into whatever knowledge may come.” ... Considering this defense as it currently is presented requires a court to rule – at least implicitly - on the truth of the story of Noah’s ark or Christian beliefs in creationism. We cannot conceive of a judicial inquiry which would impose on ecclesiastical matters more than this, nor can we find fault in the circuit court’s unwillingness to even attempt to find neutral grounds upon which it could rule when the color and content of the University’s allegations are so nakedly religious.

Recent Prisoner Free Exercise Cases

In Ali v. Duboise, (10th Cir., Feb. 6, 2019), the 10th Circuit affirmed the dismissal on qualified immunity grounds of a Muslim inmate's complaint that he was told to pray outside his cell but his request for a more specific location was met with threats, expletives, a push and temporary lock down.

In Saleem v. Bonds, 2019 U.S. Dist. LEXIS 16081 (D NJ, Jan.. 29, 2019), a New Jersey federal district court allowed an inmate to proceed with his complaint that the Muslim prison chaplain denied him access to Jumu'ah prayer services because photos depicting homosexuals had been sent to plaintiff.

In Hall v. Tapp, 2019 U.S. Dist. LEXIS 16506 (WD NC, Feb. 1, 2019), a North Carolina federal district court dismissed an inmate's complaint that a correctional officer took two bottles of oil and a kufi from his cell.

In Morales v. New Hampshire Attorney General, 2019 U.S. Dist. LEXIS 17125 (D NH, Feb. 1, 2019), a New Hampshire federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 17431, Jan. 3, 2019) and dismissed on qualified immunity grounds a Catholic inmate's free exercise objection to a strip search.

In Glenn v. Johnson, 2019 U.S. Dist. LEXIS 17515 (D NJ, Feb. 1, 2019), a New Jersey federal district court dismissed a Muslim inmate's complaint that he was not served Halal meat rather than a vegetarian diet.

In Vaughn v. Wegman, 2019 U.S. Dist. LEXIS 17639 (ED CA, Feb. 1, 2019), a California federal magistrate judge recommended dismissal of an inmate's complaint that the Community Resource Manager denied him participation in the Jewish kosher meal program and Jewish religious services.

In Depaola v. Clarke, 2019 U.S. Dist. LEXIS 18629 (WD VA, Feb. 5, 2019), a Virginia federal magistrate judge recommended finding that manner in which the one-quarter inch beard grooming policy was enforced against a Muslim inmate did not substantially burden his free exercise rights.

Pagan Temple Can Move Ahead With Its RLUIPA Claim

In Yetto v.City of Jackson, (WD TN, Feb. 5, 2019), the founders of a Pagan Temple in Jackson, Tennessee sought a declaratory judgment that the city's zoning ordinance does not apply to the type of religious gatherings held by them at their home.  They also sought an injunction against enforcement of the zoning ordinance against them.  A Tennessee federal district court dismissed their Section 1983 Free Exercise claim on statute of limitations grounds. However the court refused to dismiss their RLUIPA "equal terms" claim as well as their claim that their gatherings do not fall under the term "churches or similar places of worship" as used in the city's zoning ordinance.

Supreme Court Review Denied In Nuns' Pipeline Challenge

The U.S. Supreme Court today denied certiorari in Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (Docket No. 18-548, certiorari denied 2/192019) (Order List).  In the case, the U.S. 3rd Circuit Court of Appeals dismissed on procedural grounds a Religious Freedom Restoration Act challenge to FERC's approval of a pipeline project. The natural gas pipeline at issue runs through land owned by an order of Catholic nuns whose religious beliefs require them to preserve the earth. Developers were authorized to acquire land for the pipeline by eminent domain. (See prior posting.)

Cert. Denied In Attempt To Subpoena Bishops' Documents

The U.S. Supreme Court today denied review in Whole Woman's Health v. Texas Catholic Conference of Bishops, (Docket No. 18-622, certiorari denied 2/19/2019) (Order List).  In the case, the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, held that a Texas federal district court should have quashed a document discovery order in a case in which several health care providers challenged the state's fetal remains regulations. (See prior posting). While discussing the Bishops' constitutional claim that internal deliberations of religious organizations should be protected, the 5th Circuit ultimately relied on  Federal Rules of Civil Procedure 45(d) which calls for quashing a subpoena when it imposes an undue burden. Becket issued a press release discussing the Supreme Court's denial of certiorari.

Rastafarian Minister's Trespass Arrest did Not Violate His Free Exercise Rights

In Brown v. Jordan, (WD AR, Feb. 14, 2019), a Rastafarian minister sued over his arrest that grew out of his picketing for passage of a medical marijuana issue on the 2016 Arkansas ballot. The court rejected his claim that his arrest violated his free exercise rights, saying in part:

In this case, Plaintiff was advocating for the passage of the Medical Marijuana Act. While the Act's passage would, in his view, pave the way for his church to lawfully use marijuana in its ceremonies, his advocacy did not itself involve his exercise of a religious belief. Furthermore, the officers who arrested him appeared at the Flash Market in response to a claim that Plaintiff was trespassing, as he had remained on the Flash Market property after having been asked to leave and was bothering the customers. No action the officers took on October 16, 2016 inhibited Plaintiff from practicing or exercising his religious beliefs. Therefore, no free exercise claim is stated, and this claim is dismissed.

Recent Prisoner Free Exercise Cases

In Timmons v. Polley, 2019 U.S. Dist. LEXIS 14533 (D NV, Jan. 29, 2019), a Nevada federal district court allowed a Muslim inmate to move ahead with complaints regarding inadequate Halal food during Ramadan, and refusal of permission to attend Jumah services and receive certain religious material.

In McKinney v. County of Imperial, 2019 U.S. Dist. LEXIS 14927 (CD CA, Jan. 30, 2019), a California federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 14927, Jan. 3, 2019) and dismissed, with leave to amend, a Jewish inmate's claim for damages for denial of kosher meals.

In Sassi v. Dutchess County, 2019 U.S. Dist. LEXIS 15387 (ND NY, Jan. 23, 2019), a New York federal district court allowed a Catholic inmate to move ahead with his complaint that he was denied a Bible for several days, but dismissed his complaint regarding inability to attend Bible study groups.

In Hardy v. Agee, 2019 U.S. Dist. LEXIS 15093 (WD MI, Jan. 31, 2019), a Michigan federal district court, in a case on remand from the 6th Circuit, adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 220438, Dec. 11, 2018) and dismissed a Muslim inmate's complaint that he was not allowed for a period of time to attend religious services, and was not allowed to attend Taleem (study sessions) while on room restriction for refusing a work assignment.

In Dykes v. Benson, 2019 U.S. Dist. LEXIS 15990 (WD MI, Feb. 1, 2019), a Michigan federal district court allowed an inmate to move ahead with his complaint that he could not access his Koran for the first two weeks in segregation.