Religion Clause

Wednesday, August 07, 2019

State Has Compelling Interest In Licensing of Medical and Naturopathy Practice

In Jimenez v. Washington State Department of Health, (WA App., Aug. 5, 2019), a Washington state appellate court affirmed a finding by the health department that a marriage and family therapist engaged in the unlicensed practice of medicine and naturopathy. The court rejected Arely Jiminez's claim that the health department violated her free exercise rights protected by the U.S. and Washington state constitutions. The court said in art:

Here, even assuming that the Department’s actions have infringed on Jimenez’s right to freedom of religion, the Department has a compelling public health and welfare interest in limiting the practice of medicine and naturopathy to individuals licensed by the Department. To the extent that Jimenez’s practice of Medicine without a Washington license burdened her exercise of religion, the Department’s interest in public health and safety justified any infringement of her constitutional rights.

11th Circuit: Board of Immigration Appeals Failed to Consider Evidence of Ahmadi Persecution In Pakistan

In Ali v. U.S. Attorney General, (11th Cir., Aug. 5, 2019), the U.S. 11th Circuit Court of Appeals vacated and remanded for further consideration a decision of the Board of Immigration Appeals (BIA) denying asylum, withholding of removal and Convention Against Torture claims by a Pakistani immigrant who practices Ahmadiyya Islam. The Appeals court concluded that the BIA ignored numerous de jure and de facto elements of harassment and abuse of Ahmadis that might lead to a conclusion of religious persecution. The court said in part:

[T]he Board wields wide discretion on how to proceed on remand, and we today express no opinion on the merits. We simply hold that the Board’s decision, read alongside the record, considered alongside our religious persecution cases, is so puzzling that we cannot be sure the Board afforded Ali the consideration of his claims that the law requires.

Tuesday, August 06, 2019

EEOC Wins Settlement For Jehovah's Witness Employee

In a July 31 press release, the EEOC announced that American Medical Response of Tennessee, Inc., a medical transportation service company, has settled a religious discrimination lawsuit filed against it by the EEOC. The company will pay $40,000 in damages for refusing to continue accommodating a Jehovah's Witness employee's request for Sundays off for worship. The company also entered a 2-year consent decree requiring it to develop a religious accommodation policy and train its employees regarding Title VII.

European Court Says Russia Violated Rights of LGBT Organizations

Last month, in Zhdanov and Others v. Russia, (ECHR, July 16, 2019), the European Court of Human Rights in a Chamber Judgment held that Russia had violated Article 6 (access to courts), Article 11 (freedom of association) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights in refusing to register three organizations that promote LGBT rights. Russia had denied registration on various grounds, including the contention that the organizations could destroy the moral values of society, decrease Russian population, jeopardize the institutions of family and marriage, and incite social or religious hatred. The Court issued a press release announcing the decision.

Challenge To Florida Abortion Waiting Period Law Remains In Play

In State of Florida v. Gainesville Woman Care, LLC, (FL App., Aug. 1, 2019), a Florida state appellate court refused to grant summary judgment in a facial challenge to Florida's 24-hour waiting period for abortions. Even though Florida's Supreme Court upheld a temporary injunction against the law's enforcement, the appeals court, in a 2-1 decision, concluded:

Since the temporary injunction phase of this case ... the State has built a case that raises genuine issues of material fact. Among the remaining unresolved issues is the parties’ dispute about the informed consent medical standard of care.

Judge Wolf dissented, saying in part:

Uniquely treating abortions differently from other medical procedures and failing to present evidence that the statute is the least restrictive means to accomplish the purported goals of section 390.0111(3) renders the law unconstitutional. Discouraging people from exercising a constitutionally protected right does not constitute a compelling state interest.

Miami Herald reports on the decision.

Monday, August 05, 2019

Preliminary Injunction Denied In Challenge To Conscience Provisions In Insurance Law

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, Aug. 2, 2019), a Washington federal district court denied a preliminary injunction against a group of Washington state provisions that plaintiff claims requires it to pay for abortifacient contraceptive coverage for individuals in its health insurance plan. At issue is an Attorney General's Opinion that says the insurance commissioner may require insurance companies to to include the cost of prescription contraceptives in the rate setting actuarial analysis where an employer raises a conscientious objection to paying these costs directly as a part of it benefit package. The court found that plaintiff lacks standing to assert the claim at this point because:

Cedar Park has not provided evidence that insurance costs are in fact calculated or charged in a manner to which it has a religious objection...

The court also dismissed on ripeness grounds, saying that plaintiff "cites no communications from or statements of the State which could form the basis of Cedar Park’s belief that it will be subject to enforcement..." The court however allowed plaintiff to file an amended complaint contending that it is treated less favorably than religious organizations which are health care providers, carriers, and facilities.

Friday, August 02, 2019

Australian Rugby Star Sues Over His Firing For Instagram Post

In April, star Australian Rugby player Israel Folau was fired for breaching the Professional Players' Code of Conduct which requires players to "to treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability". The firing follows Folau's posting on Instagram a banner reading: "Drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators - Hell awaits you." (Background.) Now, according to BBC News, Folau has filed suit against Rugby Australia seeking $10 million in damages and reinstatement. He alleges that he is the victim of religious discrimination for expressing his Christian religious views. It is expected that the case will set important precedent for the balance between religious freedom and the interest in banning hate speech in Australia.

Court in Burma Dismisses Blasphemy Suit Against U.S. Ambassador

Yesterday in Myanmar, a township court dismissed a lawsuit that had been filed against the U.S. Ambassador and two others, charging that a picture posted on Facebook defamed Buddhism. Irawaddy reports:

Nationalist monk U Parmaukha filed the lawsuit against US Ambassador Scott Marciel, the artist who painted the picture and the person who posted the picture on the official Facebook page of the US Embassy in Yangon. The image was of a painting done for an environmentally themed art exhibit the embassy hosted in July.

The US Embassy in Yangon on Friday promoted the “Insight Out Art Exhibition” of young artists on its Facebook page with a painting that depicts a silhouette of Buddha wearing a gas mask in the foreground while factories belching smoke are seen in the background.

Chapter XV of the Myanmar Penal Code outlaws various offenses against religious feelings.

Thursday, August 01, 2019

Consulting Firm Challenges City's Ban On Discrimination Based on Political Belief

A suit was filed in a Michigan federal district court this week challenging the constitutionality of the Ann Arbor (MI) non-discrimination ordinance that, among other things, bars discrimination based on political belief. The complaint (full text) in ThinkRight Strategies, LLC v. City of Ann Arbor, (ED MI, filed 7/29/2019), alleges that plaintiffs are political conservatives whose political views are religiously motivated. Their consulting business develops websites and content for speeches, guides canvassing, promotes events and handles media relations. I will not, however, accept requests for service that involve promoting messages or policies contrary to their conservative or religious principles. The suit contends that Ann Arbor's ordinance bars this client selectivity in violation of plaintiffs' free speech rights and is unconstitutionally vague. ADF issued a press release announcing the filing of the lawsuit.

Myanmar Body Outlaws Ultra-nationalist Buddhist Organization

Radio Free Asia reports that in Myanmar (Burma), the 47-member government appointed council that regulates Buddhist clergy has declared the ultranationalist (and anti-Muslim) Buddha Dhamma Parahita Foundation (BDPF) to be illegal. The Sangha Maha Nayaka (Mahana) declared the BDPF an illegal association and ordered the removal of all of its signage by Sept. 13. The action was taken against BDPF after it publicly criticized the ruling National League for Democracy government.

Wednesday, July 31, 2019

Indian Parliament Outlaws Triple Talaq

India's Parliament yesterday gave final passage to The Muslim Women (Protection of Rights on Marriage) Bill, 2019 (full text) (bill summary). The bill now goes to the President for his assent. The new law outlaws "triple talaq", the procedure under which a Muslim husband divorces his wife by uttering the word "talaq" three times to her. The law makes talaq (including in written and electronic form) illegal and provides for a fine and up to three years in prison for anyone declaring talaq. It also allows award of child custody and subsistence to a wife against whom talaq has been invoked. The bill replaces a presidential Ordinance issued earlier this year. In 2017, India's Supreme Court held that triple talaq is invalid and ordered the government to consider appropriate legislation on the mater. (See prior posting.) Rediff and Reuters report on the bill. [Thanks to Scott Mange for the lead.]

TRO Issued Against Arkansas Abortion Restrictions

In a 159-page opinion in Little Rock Family Planning Services v. Rutledge, (ED AR, July 23, 2019), and Arkansas federal district court granted a 14-day temporary restraining order against enforcement of recent Arkansas laws that severely restrict abortions. The laws at issue ban abortions after 18 weeks of pregnancy, ban abortions when the reason is a pre-natal diagnosis of Down's Syndrome, and bans abortions being performed by anyone other than board-certified OB-GYN physicians. CNA reports on the decision.

Tuesday, July 30, 2019

Canadian Court Says West Bank Wines Cannot Be Labeled "Products of Israel"

In Kattenburg v. Attorney General of Canada, (Federal Ct. Canada, July 29, 2019), a judge of Canada's Federal Court held that labeling wine produced by wineries in the West Bank settlements of Shiloh and Psagot as "Products of Israel" is false, misleading and deceptive in violation of § 7(1) of Canada's Consumer Packaging and Labelling Act and § 5(1) of Canada's Food and Drugs Act. The court said in part:

Both parties and both interveners agree that, whatever the legal status of the settlements may be, the fact is that they are not within the territorial boundaries of the State of Israel.

The court added:

[S]ome individuals opposed to the creation of Israeli Settlements in the West Bank express their opposition to the settlements and their support for the Palestinian cause through their purchasing choices, boycotting products produced in the Settlements. In order to be able to express their political views in this manner, however, consumers need to have accurate information as to the origin of the products under consideration. Identifying Settlement Wines incorrectly as “Products of Israel” inhibits the ability of such individuals to express their political views through their purchasing choices, thereby limiting their Charter-protected right to freedom of expression.

The Globe and Mail reports on the decision.

New Report On Muslim Inmates In State Prisons In U.S.

In a press release last week, Muslim Advocates announced the release of a report documenting the size of the Muslim population in state prisons in the U.S. and the extent to which their religious rights are accommodated. The 68-page report (full text) titled Fulfilling the Promise of Free Exercise for All: Muslim Prisoner Accommodation in State Prisons concluded in part:

[O]ur research shows that within the 34 states that provided data in response to our requests, Muslims are overrepresented in state prisons by a factor of eight relative to the general population. In some state systems, Muslims are overrepresented by a factor of closer to eighteen, with more than 20 percent of prisoners identifying as Muslim. The absolute number of Muslim prisoners has also increased over time, even as prison populations in many states have tended to decrease in the last few years. Despite Muslims constituting a significant and growing share of prisoners, many state departments of correction still have policies that are outdated, under-accommodating, or non-accommodating of Muslim prisoners.

The Appeal discusses the report.

Court Refuses To Order Return of WWII Remains To Supposed Next-of-Kin

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, July 29, 2019), a Texas federal district court refused to order return to plaintiffs of the remains of seven servicemen who were killed or perished as POW's in the Philippines in World War II. The court explains:

The parties dispute the extent to which the remains are identified. Plaintiffs argue that they have a property interest in these remains and that Defendants’ retention of these remains impinges on Plaintiffs’ religious practices and Plaintiffs’ interest in securing proper burial.

The court rejected plaintiffs' due process, 4th Amendment, free exercise and RFRA claims to the remains at issue, saying in part:

They state “the facts alleged in the Amended Complaint show that the Government has placed a substantial burden on the Families’ exercise of religion.”...

The record reveals nothing further about Plaintiffs’ religious beliefs or how Defendants have burdened them. Plaintiffs do not indicate the nature, substance, or contours of their beliefs, or even whether all Plaintiffs share the same religious beliefs. In the complaint, Plaintiffs allege that a “proper burial is essential for many practicing Christians,” but they produce no declarations or other evidence outlining these beliefs. Defendants thus contest whether Plaintiffs’ beliefs are sincerely held.

The Court is inclined to grant summary judgment on the sincerity grounds ... given Plaintiffs’ total lack of evidence. Courts have cautioned, however, that “[t]hough the sincerity inquiry is important, it must be handled with a light touch....

In keeping with this tradition ... the Court assumes Plaintiffs show sincerely held beliefs and concludes alternatively that Plaintiffs do not show a substantial interference with these beliefs. As Defendants note, Plaintiffs allege only that their beliefs require a “proper burial,” but without any explanation of what makes a “proper burial in accordance with each respective family’s religious beliefs,” the Court cannot assess the alleged interference.... Thus, Plaintiffs do not meet their initial burden for either their RFRA or Free Exercise claims.

Medical Center's Retirement Plan Is A "Church Plan" Exempt From ERISA

In Boden v. St. Elizabeth Medical Center, Inc., (ED KY, July 25, 2019), a Kentucky federal district court held that the employee retirement plan of a Catholic-affiliated health care provider is exempt from ERISA as a "church plan." The case was initially stayed pending the Supreme Court's 2017 decision in Advocate Health Care Network v. Stapleton. (See prior posting.) The case then proceeded under an amended complaint. The court here, among other things, rejected plaintiffs' contention that the Pension Plan Administrative Committee is not "organization" that "maintained" St. Elizabeth's retirement plan, as required by the statute defining a "church plan." [Thanks to Tom Rutledge for the lead.]

Monday, July 29, 2019

Saturday, July 27, 2019

Nigerian Court Bars Shiite Group as Terrorists

Legit reported today that the Nigerian federal government has obtained a court order banning the Shiite group Islamic Movement in Nigeria on the ground that it is a terrorist group. A Federal High Court justice, Nkeonye Maha, issued the order and designated the activities of the Shiite movement in any part of Nigeria "as acts of terrorism and illegality".

Friday, July 26, 2019

Gay Couple Sue Over Citizenship of Child Born Through Surrogacy Abroad

A same-sex married couple has filed suit in a Georgia federal district court challenging the State Department's refusal to recognize their daughter as a U.S. citizen. The complaint (full text) in Mize v. Pompeo, (MD GA, filed 7/23/2019), alleges that the due process and equal protection rights of James Mize and Jonathan Gregg were violated when the U.S. Embassy in Britain refused to issue a Consular Report of Birth Abroad and passport to their daughter who was born through assisted reproductive technology in Britain. It also contends that the State Department has misinterpreted the Immigration and Nationality Act (INA). The couple used the sperm of Mr. Gregg, an anonymous egg donor, and a surrogate who lives in Britain. Both fathers are U.S. citizens. Mr. Gregg is a U.S. citizen by reason of birth in Britain to a U.S. citizen. He has lived in the U.S. less than five years. Mize and Gregg are listed as the only parents on the child's birth certificate.

Under Sec. 301 of the INA, a person born outside the United States to two married U.S. citizens is a U.S. citizen if at least one of the parents has resided in the U.S. at any time. However the State Department applies this provision only if the child has a biological relationship with both married parents. Otherwise it applies Sections 309 and 301(g) of the INA that govern when a child born out of wedlock is a citizen. In that case, the father must have lived in the U.S. for 5 years for the child to be a citizen.

The complaint alleges:

On information and belief, State Department officials are highly unlikely to ask different-sex parents who are identified as legal parents (e.g., on a child’s birth certificate) if their child is, in fact, biologically related to both legal parents. In contrast, same-sex parents will always trigger an investigation, and consular officials routinely ask same-sex parents for specific evidence of a biological tie and/or about the use of assisted reproductive technology.

CNN reports on the lawsuit.