Thursday, January 18, 2018

Trump Administration Is Planning Expanded Religious and Moral Exemptions For Doctors

The Wall Street Journal reported yesterday that the Trump Administration is planning to expand exemptions from health care anti-discrimination rules for doctors who have religious or moral objections to gender transitioning or abortion.  The Department of Health and Human Services also plans to create  a division of "conscience and religious freedom protections" in the Department's Office for Civil Rights.  HHS sent its rule proposals to the White House for review last Friday.  President Trump might announce the changes on Friday when he addresses the March for Life on the National Mall by satellite. [Thanks to Steven H. Sholk for the lead.]

UPDATE: On Jan. 18, the Department of Health and Human Services formally announced formation of a new Conscience and Religious Freedom Division in its Office for Civil Rights.

"Church Plan" Class Action Settled

Last June, the U.S. Supreme Court held that retirement plans of religiously affiliated health care systems qualify as "church plans" exempt from ERISA. (See prior posting.) Now a settlement has been approved by an Illinois federal district court in a class action suit against Ascension, the largest Catholic health care system in the country. The suit was one of many that challenged the availability of the  church plan exemption.  As reported by Cook County Record:
Under the deal, Ascension agreed to pay $29.5 million into a trust fund, and agreed to not reduce any retiree accrued benefits for at least the next seven years, and provide various annual plan notices, “equitable provisions that mimic certain provisions” of the federal Employee Retirement Income Security Act, according to a memorandum filed by plaintiffs in support of the settlement.
However, the deal would allow Ascension to buy out its full obligation, by contributing $25 million to the trust fund.

3rd Circuit: Preachers' Civil Rights Suit Dismissed On Immunity Grounds

In Karns v. Shanahan, (3rd Cir., Jan. 11, 2018), t U..S. 3rd Circuit Court of Appeals affirmed the dismissal of a civil rights damage action brought by two evangelical Christian ministers who were arrested for preaching on an NJ Transit train platform without the required permit.  In a 2-1 decision, the court held that NJ Transit is an arm of the state and thus has 11th Amendment immunity.  The 3-judge panel agreed unanimously that the police officers who were also sued have qualified immunity.  WHYY News reports on the decision.

Advocacy Groups Say Military Is Imposing Religious Participation On Cadets

The Freedom From Religion Foundation and American Atheists announced this week that they have sent a joint letter (full text) to Secretary of Defense James Mattis complaining about an increased incidence of military members and their families being forced to participate in religious observances at military training facilities. The letter says in part:
By scheduling prayer in graduation ceremonies, and by leading cadets in prayer prior to examinations, our military training facilities are violating the Establishment Clause of the First Amendment. By assigning menial or labor-intensive tasks to cadets who elect not to participate in worship services, these facilities are violating the equal protection principles enshrined in the Due Process Clause of the Fifth Amendment.
Friendly Atheist Blog reports on the letter.

Couple Sues Printer Over Substitution of Anti-Gay Pamphlets For Wedding Programs

The New York Post this week reports on a lawsuit filed in Massachusetts federal district court against Vistaprint.  The company's North American Business Headquarters are located in Boston.  Plaintiffs are a same-sex couple who were married in a ceremony in Pennsylvania last September. The couple had ordered 100 copies of a customized program for their wedding.  When they opened the package Vistaprint sent to them, they found that instead of the programs they had been sent 80 copies of an anti-gay pamphlet titled "‘Understanding Temptation: Fight the good fight of the faith." The pamphlets warn: "Satan entices your flesh with evil desires." Vistaprint, which says it would not discriminate on the basis of sexual orientation, indicated that it had just learned of the incident and have begun an internal investigation.

Wife's Religious Convictions Do Not Override Vermont Divorce Law

In Maghu v. Singh, (VT Sup. Ct., Jan. 12, 2018), the Vermont Supreme Court rejected a wife's attempt to obtain dismissal of a no-fault divorce petition filed by her husband.  The couple was married in India and, among other contentions, the wife argued that Vermont's courts should defer to Indian divorce law. In rejecting that contention, the court said in a footnote:
We reject wife’s argument that the court’s grant of a no-fault divorce contrary to India’s Hindu Marriage Act, and the religious requirements reflected therein, impinges on wife’s free exercise of religion in violation of Chapter I, Article 3 of the Vermont Constitution. Quite the opposite, it would be constitutionally problematic, to say the least, if we began to decline access to a divorce from an otherwise qualified domiciliary on the basis of the religious convictions of the other party. 

Wednesday, January 17, 2018

Inter-American Human Rights Court Recognizes Same-Sex Marriage and Transgender Rights

In an Advisory Opinion (full text in Spanish) dated Nov. 24, 2017, but apparently first published on Jan. 9, 2018, the Inter-American Court of Human Rights ruled that the American Convention on Human Rights requires governments to recognize family rights of same-sex couples and transgender rights. As reported by the Washington Blade:
The Inter-American Court of Human Rights on Tuesday issued a landmark ruling that recognizes same-sex marriage and transgender rights in the Western Hemisphere. 
The seven judges who issued the ruling stated governments “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex.” Six of the seven judges also agreed that it is necessary for governments “to guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.”
The court issued its ruling after the Costa Rican government in 2016 asked for an advisory opinion on whether it has an obligation to extend property rights to same-sex couples and allow transgender people to change their name and gender marker on identity documents.
The ruling says the Costa Rican government must allow trans people to legally change their name and gender marker on official documents.
According to La Voz,  "Costa Rica is the only country that gives the same weight to a CIDH ruling as it does to a national court’s judicial decision."

Church Camp Loses Challenge To Zoning Decision On Neighboring Dairy Farm

In House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (IN App., Jan. 16, 2018), an Indiana state appeals court rejected a challenge by a church summer camp to a zoning board decision granting a special exception to a dairy farm to operate a concentrated animal feeding operation one-half mile from the summer camp.  The church argued in part that the grant of the special exception substantially burdens its religious exercise by "imperiling the health of the children" at its camp.  The court first held that the federal Religious Land Use and Institutionalized Persons Act is not available to the church here because a RLUIPA claim can be raised only by a person with a property interest in the land that is regulated.  RLUIPA does not extend to other property that is merely affected by a land use decision as to neighboring land.

The court went on to hold that Indiana's state Religious Freedom Restoration Act was also not violated:
The [Board of Zoning Appeal's] apparent assessment that House of Prayer will not be substantially burdened in the exercise of its religion by the grant of the special exception is supported by substantial evidence.
Indiana Lawyer reports on the decision.

Suit Contends Ministerial Exception Does Not Bar Hostile Work Environment Claims

Yesterday's Cook County Record reports on a hostile work environment lawsuit filed in federal court in Chicago by Sandor Demkovich, former organist and music director of St. Andrew the Apostle Church in Calumet City, Illinois.  Demkovich was fired several days after he entered a same-sex marriage. His earlier lawsuit charging employment discrimination was dismissed on "ministerial exception" grounds.  The new lawsuit argues that the ministerial exception doctrine does not apply to hostile work environment claims.

Justice Department Supports Archdiocese Against Washington Area Transit Authority

As previously reported, the Court of Appeals for the D.C. Circuit is considering an appeal by the Archdiocese of Washington challenging the refusal of the Washington Area Metropolitan Transit Authority to accept bus ads that promote religion, religious practices or religious beliefs. Yesterday the U.S. Department of Justice filed an amicus brief (full text) supporting the Archdiocese whose Christmas ad was rejected by WMATA. The brief argues that "WMATA’s policy constitutes unconstitutional viewpoint discrimination." National Law Journal reports on DOJ's action.

Suit In Belgium Challenges Kosher Slaughter Ban

In Belgium yesterday, three organizations filed suit challenging legislation in the Flemish Region of the country that bans kosher and halal slaughter beginning in 2019. As reported by The Daily Mail, the lawsuit contends that the legislation in Flanders violates the freedom of religion protections found in the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the Belgian Constitution. The Coordinating Council of Islamic Institutions has separately filed suit challenging the law. A suit filed last November challenged a similar law enacted by the Walloon Region. (See prior posting.)

Tuesday, January 16, 2018

Today Is Religious Freedom Day

As reported by Blog from the Capital, today is Religious Freedom Day, the anniversary of the passage of the Virginia Statute of Religious Freedom in 1786. Traditionally the President issues a Proclamation designating the day.

UPDATE: This morning President Trump issued a  Religious Freedom Day Proclamation (full text) which reads in part:
Our Constitution and laws guarantee Americans the right not just to believe as they see fit, but to freely exercise their religion.  Unfortunately, not all have recognized the importance of religious freedom, whether by threatening tax consequences for particular forms of religious speech, or forcing people to comply with laws that violate their core religious beliefs without sufficient justification.  These incursions, little by little, can destroy the fundamental freedom underlying our democracy.  Therefore, soon after taking office, I addressed these issues in an Executive Order that helps ensure Americans are able to follow their consciences without undue Government interference and the Department of Justice has issued guidance to Federal agencies regarding their compliance with laws that protect religious freedom.  No American — whether a nun, nurse, baker, or business owner — should be forced to choose between the tenets of faith or adherence to the law.

French Mayor Bars Pork Alternatives In Schools

The Washington Post yesterday reports on the newest battle in France over how to implement the principle of secularism (laïcité ):
Beaucaire, in the south of France, has become the latest fault line in a battle over the place of Islam in a staunchly secular society. On the day school started back after the holiday break, Julien Sanchez, the town’s 34-year-old mayor — and a member of the far-right National Front — outlawed alternatives to pork in school cafeterias, insisting that religious exceptions to the menu violate France’s vaunted Republican principles.
For many, his message was clear: Being French means eating pork, Muslims (and Jews) be damned. Unsurprisingly, outrage immediately ensued from virtually every corner of society: parents, the local opposition, Muslim leaders and even the French government.

Monday, January 15, 2018

One Count Dismissed In Michigan Female Genital Mutilation Case

A Detroit (MI) federal district court yesterday dismissed the most serious of seven charges against two doctors indicted for their involvement in alleged female genital mutilation of girls who are members of the Dawoodi Bohra, a Muslim sect from western India. (See prior related posting.)  In United States v. Nagarwala, (ED MI, Jan. 14, 2018), the court dismissed the Count charging violation of 18 USC Sec. 2423, Conspiracy to Transport Minor with Intent to Engage in Criminal Sexual Activity.  The court held that "sexual activity" as used in the statute must involve libidinal gratification.  Applying that definition, the court said:
The government does not contend that Dr. Nagarwala or Dr. Attar sought or obtained any libidinal gratification from subjecting the minor victims to FGM....  In short, while the indictment may sufficiently allege a violation of the FGM statute – the statute adopted by Congress to address precisely such genital cutting – it does not allege that defendants transported minors intending that they engage in “sexual activity.” 
Detroit News reports on the decision.

Belief In Government Corruption Is Not a "Religious" Belief

The Daily Sentinel reports that last Thursday a Colorado federal district court jury found Rocky Hutson guilty on multiple fraud charges.  Hutson, a member of the sovereign citizen movement, had attempted to use the Religious Freedom Restoration Act as a defense.  However federal district court Judge Marcia Krieger rejected the defense, saying that while Hutson's beliefs about the corruption of the U.S. government are sincere, but they are not "religious" beliefs.

Recent Articles and Books of Interest

From SSRN:
Recent Books:

Sunday, January 14, 2018

Recent Prisoner Free Exercise Cases

In Carter v. Fleming, (4th Cir., Jan. 8, 2018), the 4th Circuit reversed the district court's grant of summary judgment to defendants in an inmate's suit claiming that the Common Fare menu does not comply with Nation of Islam dietary restrictions because it includes fried foods and challenging his suspension from the Common Fare diet.

In Brooks v. Williams, 2018 U.S. Dist. LEXIS 3050 (Jan. 8, 2018), an Illinois federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 214438, Dec. 19, 2017) and refused to dismiss on exhaustion grounds an inmate's claim that he was denied access to Rastafari Sabbath services.

In Newman v. Grzegorek, 2018 U.S. Dist. LEXIS 3626 (ND IN, Jan. 9, 2018), an Indiana federal district court allowed an inmate to move ahead whit his challenge to jail policies that prevented him from attending church services and Bible study.

In Trisvan v. Annucci, 2018 U.S. Dist. LEXIS 3851 (ED NY, Jan. 9, 2018), a New York federal district court dismissed with leave to file an amended complaint a parolee's claim that his curfew and travel conditions prohibit him from praying at a mosque and participating in Ramadan between 9:00 PM and 7:00 AM, and from making a pilgrimage to Mecca.

In Canseco v. Spearman, 2018 U.S. Dist. LEXIS 3991 (ED CA, Jan. 9, 2018), a California federal magistrate judge dismissed a Muslim inmate's complaint that he was not allowed to attend evening religious activities in the dining hall during Ramadan.

In Wallace v. Ducart, 2018 U.S. Dist. LEXIS 4684 (ND CA, Jan. 10, 2017), a California federal magistrate judge dismissed with leave to amend an inmate's claim that he was required to strip in front of female guards in violation of his religious beliefs, and was not allowed to properly clean himself before prayer.

In Hatcher v. Trotter, 2018 U.S. Dist. LEXIS 4926 (WD TN, Jan. 11, 2018), a Tennessee federal district court, adopting a magistrate's recommendation (2017 U.S. Dist. LEXIS 215104, Dec. 20, 2017) dismissed an inmate's complaint that he was unable to attend Sunday religious services on one occasion due to a lock down.

In Rivera v. Davey, 2018 U.S. Dist. LEXIS 5422 (ED CA, Jan. 10, 2018), a California federal magistrate judge recommended dismissing an inmate's complaint that he was denied the opportunity to perform obligatory Jewish prayer services and holy day events.

Friday, January 12, 2018

Bureau of Prisons Says Objecting Chaplains Need Not Carry Pepper Spray

A Liberty Counsel press release today reports that the U.S. Bureau of Prisons has granted accommodation requests from prison chaplains who object on religious grounds to carrying pepper spray as a potential defense in emergency situations.  Various prison Chaplains were told to carry the spray after enactment of the Eric Williams Correctional Officer Protection Act of 2015.  Liberty Counsel sent a letter in October seeking a religious accommodation and religious exemption for chaplains.

Quebec Court: Muslim Community Center Is Not "House of Worship"

The Globe and Mail reported yesterday that a Quebec Superior Court judge has ruled that a Muslim community center in a Montreal suburb is not a "house of worship". The city of Mascouche attempted to shut down the community center in a strip shopping mall on the ground that under zoning rules "houses of worship" are not permitted in the area. A room in the community center was used by men for prayer. The court said however that "prayers can be uttered in all places and not exclusively in a place of worship."

Parents Challenge Teacher's Distribution of Material Disparaging Muslims

According to yesterday's Pasedena Star-News, the parents of a 7th grade boy have filed an appeal with the California Department of Education over the Mesa Union School District's clearing of a teacher's who distributed material disparaging Muslims.  The boy is being bullied by other students because of his religion. The paper reports:
The material the teacher distributed contained information taken from the website billionbibles.org, which makes “inaccurate and disparaging” statements about Islam and Muslims,” said Masih Fouladi, CAIR-LA’s advocacy manager.
The sheet of paper distributed by the teacher states Sharia Law, or Islamic religious law, gives Muslim men sexual rights over any woman or girl not wearing the hijab or head scarf; allows a man to marry an infant girl and consummate the marriage when she is 9; and requires Muslims to lie to non-Muslims to advance their faith.
“The main issue at hand with this incident of bullying is that the material was drawn from a website that is clearly intended to promote one religion at the expense of another,” Fouladi said. “This has no place in our public school system and is a clear violation of the First Amendment.”

Thursday, January 11, 2018

School District Says First Amendment Bars District Diwali Holiday

According to Fox4News yesterday, Coppell Independent School District in Texas has refused requests to schedule a day off from school during Diwali. Nearly half the students in the school district are Asian.  The school board however took the position that principles of separation of church and state prevent it from recognizing a religious holiday.  When proponents argued that the district schedules a holiday on Good Friday, the school district responded that Good Friday is considered a professional development and bad weather make-up day.

European Court Vindicates Critic of Anti-Muslim Political Remarks

In Case of GRA Stiftung gegen Rassismus und Antisemitismus v. Switzerland,  (ECHR, Jan. 9, 2018), the European Court of Human Rights in a Chamber Judgment held that the free speech rights of a civil rights organization were infringed when Swiss courts sanctioned it for a web posting calling remarks of a youth leader of a right wing party "verbal racism." The remarks were made in the context of a referendum on banning the building of minarets. A Swiss appellate court found that the web posting infringed the party leader's personality rights.  It required the organization to remove its web posting and replace it by the court's opinion. It also was required to pay legal and court costs. The ECHR held in part:
When assessing the impugned statements in the present case, it is first of all important to bear in mind the general background of the ongoing political debate in which both statements were made.
... Both B.K.’s speech and the applicant organisation’s article concerned a topic of intense public debate in Switzerland at the material time, which was the popular initiative against the construction of minarets, which was widely reported on in national and international media. The initiative, calling for a ban on the construction of minarets, was ultimately accepted by a referendum on 29 November 2009 and such a ban was included in the Swiss Constitution....
The Court reiterates that a distinction has to be made between private individuals and persons acting in a public context, as political or public figures. Accordingly, whilst a private individual unknown to the public may claim particular protection of his or her right to private life, the same is not true of public figures.... 
... B.K. had willingly exposed himself to public scrutiny by stating his political views and therefore had to show a higher degree of tolerance towards potential criticism of his statements by persons or organisations which did not share his views.
A Chamber Judgment may be appealed to the Grand Chamber.  the Court issued a press release summarizing the decision.  Law & Religion UK has more on the case.