Jan. 16 Is Religious Freedom Day

Today (Jan. 16) is Religious Freedom Day-- the 233rd anniversary of the enactment of the Virginia Statute for Religious Freedom. On Tuesday, President Trump issued a Presidential Proclamation calling on Americans "to commemorate this day with events and activities that remind us of our shared heritage of religious liberty and that teach us how to secure this blessing both at home and around the world."  The Proclamation says in part:

Unfortunately, the fundamental human right to religious freedom is under attack.  Efforts to circumscribe religious freedom — or to separate it from adjoining civil liberties, like property rights or free speech — are on the rise.  Over time, legislative and political attacks on religious freedom have given way to actual violence.  Last October, we witnessed a horrific attack on the Tree of Life Synagogue in Pittsburgh, Pennsylvania — the deadliest attack on the Jewish community in our Nation’s history.  Tragically, attacks on people of faith and their houses of worship have increased in frequency in recent years.

European Court Upholds Removal of Children From Home Schooling

In Wunderlich v. Germany, (ECHR, Jan. 10, 2019), the European Court of Human Rights in a Chamber Judgment upheld Germany's three-week removal of four children from their parents' home after the parents insisted on home schooling them and refused to send them to state schools.  The court held that there was no violation of Art. 8 of the European Convention on Human Rights (Right to Respect for Private and Family Life). the Court said in part:

The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system.

ADF issued a press release announcing the decision.

Popularity of Kosher Food Requests In Prisons

Tablet Magazine yesterday reports on the surprising popularity of kosher food requests in prisons, saying in part:

According to the 2013 numbers, Jews are seven percent of the state prison population of New York; the fourth largest religious denomination after Protestant, Catholic and Muslim (in that order). If the numbers were accurate it would mean that nearly twice as many Jews were locked up that year as members of the Nation of Islam. But the truth is that many inmates lie and claim to be Jewish once they enter the prison system. And why do they do it? Not as a hedge against the impending arrival of the Moshiach. They do it for the kosher food.

Court Enjoins Broadened Contraceptive Mandate Exemptions

Yesterday in Commonwealth of Pennsylvania v. Trump, (ED PA, Jan 14, 2019), a Pennsylvania federal district court issued a nationwide preliminary injunction preventing enforcement of the Trump Administration's expanded exemptions for those asserting religious or moral objections to the Affordable Care Act's contraceptive coverage mandate.  In addition to finding procedural problems in the way the rules were adopted, the court concluded:

The Final Rules—just as the IFRs before them—exceed the scope of the Agencies’ authority under the ACA, and, further, cannot be justified under RFRA.

A California court issued a similar, but more limited injunction on Sunday. (See prior posting.) Washington Examiner reports on the decision.

Ohio Governor Signs Broad State Employment Non-Discrimination Executive Order

Yesterday, Ohio Governor Mike DeWine signed Executive Order 2019-05D prohibiting discrimination by any state agency, board or commission.  The Order prohibits discrimination on the basis of race, color, religion, gender, gender identity or expression, national origin (ancestry), military status (past, present or future), disability, age (40 years or older), status as a parent during pregnancy and immediately after the birth of a child, status as a parent of a young child, status as a foster parent, genetic information, or sexual orientation. Washington Blade reports on the governor's action, saying in part:

DeWine’s action stands in contrast to the executive order signed by Florida Gov. Ron DeSantis, who excluded LGBT people in a non-discrimination that included other categories, including race, religion and sex....

The Ohio Republican’s action may come as a surprise to observers who know his history as a President Trump-supported candidate and an Ohio state attorney general who defended the state’s marriage ban in court.

Expanded Religious and Moral Exemptions From Contraceptive Mandate Enjoined In Part of the Country

In State of California v. Health and Human Services, (ND CA, Jan. 13, 2019), a California federal district court granted a preliminary injunction against enforcement of the the Trump Administration's broadened religious and moral exemptions from the ACA's contraceptive coverage mandate. The court enjoined enforcement of the Final Rules that were scheduled to take effect today, but only in  the 13 states and the District of Columbia that are plaintiffs in the case.  The court concluded that the plaintiffs are likely to succeed on their claim that the exemptions are inconsistent with the Women's Health Amendment, and that the religious exemption is likely not required by the Religious Freedom Restoration Act. The court agreed with decisions in nine Courts of Appeal that the Obama Administration accommodation for religious objectors does not impose a substantial burden on the free exercise of religion. Politico reports on the decision.

Recent Articles of Interest

From SSRN:

• Ahmed E. Taha &Sohaib Khan, Charity Disparity: The Challenge of Applying Religious Law on Zakat in the United States, (Northwestern Journal of Law and Social Policy, Vol. 14, No. 1, 2018).
• Michael A. Helfand, From Doctrine to Devotion: The Jewish Comparative Law Project, (American Journal of Comparative Law, Vol. 67, 2019 Forthcoming).
• Fajiri Muhammadin & Thara Wahab, Fiqh al-Jihād in Modern Warfare: Analyzing Prospects and Challenges with Reference to International Humanitarian Law, (IIUM Law Journal, Vol. 26, No. 2 (2018)).
• Wayne Barnes, Reconsidering Christianity as a Support for Secular Law: A Final Reply to Professor Calhoun, (Texas A&M University School of Law Legal Studies Research Paper (2019)).
• David L. Sloss & Wayne Sandholtz, Universal Human Rights and Constitutional Change, (William & Mary Bill of Rights Journal, Forthcoming).
• Daniel Bewel, The Murder of My Unborn Siblings: A Breach of the Constitutional Right to Life of the Unborn, (August 15, 2018).
• Catherine Martin Christopher, Nevertheless She Persisted: Comparing Roe v. Wade's Two Oral Arguments, (49 Seton Hall L. Rev. 307 (2018)).
• Md.Salman Sohel, The Rohingya Crisis in Myanmar: Origin and Emergence, (Saudi J. Humanities Soc. Sci.; Vol-2, Iss-11A (Nov, 2017)).
• Zubair Abbasi, From Faskh to Khula: Transformation of Muslim Women’s Right to Divorce in Pakistan (1947-2017), (December 29, 2018).

From SmartCILP:

• Omri Ben-Zvi, The Unavailability of Religious Arguments, 54 Idaho Law Review 703-728 (2018).
• Frederick B. Jonassen, The "Ave Maria" Effect, 54 Idaho Law Review 729-811 (2018).
• Islamic Law, Society, and the State. Introduction by Tamir Moustafa, Jeffrey Adam Sachs; articles by Mona Oraby, Katherine Lemons, Jeffrey Adam Sachs, Michael G. Peletz, Tamir Moustafa. 52 Law & Society Review 560-708 (2018).
• Cesar Arjona & Greg Jehle, Islamic Law and the Limits of Amorality: Reconceptualizing the Legal Ethics of Transnational Islamic Finance, [Abstract], 27 Transnational Law Contemporary Problems 249-275 (2018).
• Religious Freedom. Articles by Robin Fretwell Wilson, David Orentlicher, Shaakirrah R. Sanders, David M. Smolin, Allison M. Whelan. 8 UC Irvine Law Review 583-759 (2018).

Recent Prisoner Free Exercise Cases

In Carr v. Zwally, (10th Cir., Jan. 8, 2019), the 10th Circuit affirmed the dismissal of an inmate's complaint that a sheriff's deputy removed religious material, including two Bibles, from his cell.

In Anderson v. Dzurenda, 2019 U.S. Dist. LEXIS 784 (D NV, Jan. 3, 2019), a Nevada federal district court allowed a Wiccan inmate to move ahead with his complaint that he was denied religious items, religious oils and religious teas.

In Williams v. Kobayashi, 2019 U.S. Dist. LEXIS 1015 (D HI, Jan. 3, 2019), an Hawaii federal district court dismissed with leave to amend an inmate's complaint that his personal minister's application for special visitor status was denied.

In Lopez v. Semple, 2019 U.S. Dist. LEXIS 1361 (D CT, Jan. 4, 2019), a Connecticut federal district court dismissed an inmate's claim that he was deprived of religious services while in segregation.

In Wilson v. Arizona, 2019 U.S. Dist. LEXIS 1744 (D AZ, Jan. 3, 2019), an Arizona federal district court dismissed an inmate's complaint that he was denied religious meals and that his food was tampered with because of his religion.

In Canada v. Stirling, 2019 U.S. Dist. LEXIS 3004 (D SC, Jan. 8, 2019), a South Carolina federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 218699, Dec. 17, 2018) and dismissed an inmate's claim that playing the Pledge of Allegiance over the prison loudspeaker two to three times per day violated the Establishment Clause.

In Wilcox v. Brown, 2019 U.S. Dist. LEXIS 3684 (WD NC, Jan. 9, 2019),a North Carolina federal district court allowed an inmate to move ahead with his damage claim for the temporary cancellation of Rastafarian religious services.

10th Circuit: Church of the Creator Does Not Qualify As A "Religion"

In Hale v. Federal Bureau of Prisons, (10th Cir., Jan. 7, 2019), the U.S. 10th Circuit Court of Appeals, in a prisoner free exercise case, held that the white supremacist Church of the Creator does not qualify as a "religion".  Thus the protections of the Religious Freedom Restoration Act do not apply to claims of an inmate whose participation in Creativity was limited because of its designation as a security threat group. The court applied a 5-factor test set out in earlier cases to determine whether Creativity was a religious belief system.  The court said in part:

Instead of addressing existential, teleological, or cosmological matters, Creativity presents only a singular concern of racial dominance, framed in terms of social, political, and ideological struggles. Thus, Creativity does not address ultimate ideas.

Pakistan's Supreme Court Orders Government Compensation To Victims of Protesters

As previously reported, after Pakistan's Supreme Court last October reversed the blasphemy conviction of a Christian woman, Asia Bibi, protests and demonstrations broke out in several Pakistani cities.  Now, according to Geo News, Pakistan's Supreme Court today ordered federal and provincial governments to pay compensation to those who suffered losses and property damage during the three day countrywide protest that followed the October decision.

Texas County Republicans Keep Muslim Doctor As Vice Chairman

Texas Tribune reports that the precinct chairs of the Tarrant County, Texas Republican Party last night rejected by a vote of 139-49 an attempt to remove trauma surgeon Shahid Shafi as vice-chairman of the county Republican Party. A small faction had attempted to remove Shafi because he is a Muslim.  They argued that he did not represent all Tarrant County Republicans because he is a Muslim, and that Islamic ideologies are opposed to the U.S. Constitution.  A former county precinct chair had sat outside the meeting wearing a burqa which, she said, represented "the Islamization of our county, our state and our country."  Shafi's defenders say the vote for religious liberty.

Supreme Court Grants Cert. In Title VII Religious Discrimination Jurisdictional Case

The U.S. Supreme Court today granted review on a procedural issue in a Title VII religious discrimination case--  Fort Bend County, Texas v. Davis, (Docket No. 18-525, certiorari granted, 1/11/2019). (Order List). In the case, the U.S. 5th Circuit Court of Appeals held that the the requirement that a person exhaust administrative remedies before bringing a Title VII action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. (See prior posting.) Here is SCOTUSblog's case page giving links to the filings with the Supreme Court in the case.

Synagogue Wins $2.5M Settlement For RLUIPA Violations

JNS reported this week that a New Jersey synagogue has won a $2.5 million settlement in a mediation proceeding against the town of Clifton, New Jersey. The synagogue claims that Clifton violated the Religious Land Use and Institutionalized Persons Act by creating over ten years of delays in approving construction of a building for Shomrei Torah congregation.  According to one of the synagogue's attorneys:

Shomrei Torah had been commanded to appear before the Planning Board 25 times between March 2013 and October 2015, and before the zoning board seven times between November 2008 and January 2013. They had to appear in state court four times.

The settlement terms, reached in December, were made public on Jan. 3. [Thanks to Steven H. Sholk for the lead.]

Mormon Church Sued In Tribal Court Over Abuse of Student

AP reports on a lawsuit filed Tuesday against the Mormon Church in a Navajo Tribal Court. Plaintiff, identified only as LB, was part of the Mormon Church's Indian Student Placement Program which began in the 1940's and was designed to give educational opportunities to Native American children.  LB alleges that he was sexually molested three times in the 1980's by a Church bishop who lived across the street from the foster family with whom LB had been placed.  The suit seeks damages for failure to supervise participants in the program and for failing to report the abuse to authorities or to the victim's family.  The Church has contended that Tribal Courts lack jurisdiction over the lawsuit.

NYT Explores Implications of Fetal Personhood

The New York Times has posted an 8-part series on the legal and societal implications of fetal personhood. In an introduction to the series, Times editors write in part:

The creation of the legal scaffolding for the idea that the fetus is a person has been the steady work of the anti-abortion movement, at the national level and in every state. Today, at least 38 states and the federal government have so-called fetal homicide laws, which treat the fetus as a potential crime victim separate and apart from the woman who carries it.

The movement has pressed for dozens of other measures to at least implicitly affirm the idea that a fetus is a person, such as laws to issue birth certificates for stillborn fetuses or deny pregnant women the freedom to make end-of-life decisions for themselves. Some of these laws are also intended to create a basis for challenging and eventually overturning Roe.

In the hands of zealous prosecutors, cautious doctors and litigious attorneys, these laws are creating a system of social control that polices pregnancy, as the editorials in this series show. Because of the newly fortified conservative majority on the Supreme Court, such laws are likely to multiply — and the control to become more pervasive — whether or not Roe is overturned.

In the concluding part of the series, Times editors opine:

A society that embraces a legal concept of fetal personhood would necessarily compromise existing ideals of individual freedom. Americans — even many who oppose abortion — have not considered the startling implications of this idea, even as it has steadily gained strength in the law and in social norms. If a fetus is granted equal rights, women who become pregnant may find their most personal decisions coming under state control.

Suit Challenges School Limits on Flyer Distribution For Bible Event

A suit was filed this week in a California federal district court against the Huntington Beach School District for barring a 2nd and a 5th-grade student from handing out flyers promoting Focus on the Family's "Bring Your Bible to School Day."  The complaint (full text) in M.B. v. Huntington Beach City School District, (CD CA, filed 1/7/2019),  contends that plaintiffs' free speech, free exercise, equal protection and due process rights were infringed by not allowing them to distribute the flyers at lunch, recess and other non-instructional times during the school day. School officials limited the distribution to before- and after-school hours. OC Weekly reports on the lawsuit.

NY Quaker Marriage Provision Cannot Be Limited To Quakers

In N.B. v. F.W., (NY County Sup Ct, Jan. 4, 2019), a New York state trial court rejected a husband's argument in a divorce proceeding that no valid marriage existed between the parties. The couple, who lived in New York throughout their 13-year purported marriage, had obtained a "self-uniting" marriage license from Pennsylvania and had a wedding ceremony in France at which the couple solemnized their own marriage in the presence of two witnesses and guests. The wife argued, among other things, that the marriage was valid under New York Domestic Relations Law Sec. 12 which recognizes self-uniting ceremonies among Friends or Quakers if solemnized in the manner practiced by their societies. In response, the husband argued that neither party to the marriage was a member of the Friends or Quakers.  The court responded:

The court's ability to hold the marriage as valid or invalid may not, however, depend on the parties' religious affiliation to members of the Friends or Quakers, or on the parties' level of religious observance. To hold otherwise would violate the First Amendment....

The court cannot deny a benefit or right to a person for not following any particular religious practice. To do so would violate the Establishment Clause. Lee v. Weisman, 505 U.S. 577, 596 (1992). Husband's argument would prefer religiously observant Quakers over individuals such as the parties here (or vice-versa, since Husband is seeking to "free" himself from a finding of a valid marriage that would have attached to him if he were religiously observant, under his argument).