11th Circuit: Pensacola Cross May Stay

In Kondrat'yev v. City of Pensacola, Florida, (11th Cir., Feb. 19, 2020), the U.S. 11th Circuit Court of Appeals, in a case with a complicated procedural history, held that a 34-foot cross in Pensacola's Bayview Park does not violate the Establishment Clause. Originally a 3-judge panel of the 11th Circuit, relying on past precedent, reluctantly ordered the cross removed. (See prior posting.)  The case was appealed to the Supreme Court which summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of its decision in American Legion v. American Humanist Assn. (See prior posting).  Now the 11th Circuit has decided that the cross may stay.  However, two of the judges filed a concurring opinion questioning the circuit's precedent on when plaintiffs have standing to bring an Establishment Clause challenge, saying in part:

we should—whether in this case or some other— convene en banc in order to bring our own Establishment Clause standing precedent into line with the Supreme Court’s and to clarify that  offen[se],”“affront[],” and “exclu[sion]” fail to satisfy Article III’s injury-in-fact requirement.

Pensacola News Journal reports on the decision.

3rd Circuit: Employee's Flu Vaccine Objections Were Not Religious

In Brown v. Children's Hospital of Philadelphia, (3rd Cir., Feb. 14, 2020), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a religious discrimination claim brought by a hospital employee who was fired for refusing to obtain a flu vaccination.  The court held that Naija Brown's objections were not "religious". She practiced an "African Holistic Heath" lifestyle. She claimed that while she did not have a pastor to validate her beliefs, she filed an "advance vaccine directive" prepared by Natural Solutions Foundation. The court concluded that her opposition to the vaccine were medical, not religious. PennLive reports on the decision.

Recent Articles of Interest

From SSRN:

• Richard Moon, The Law Society of BC v. Trinity Western University: Complicated Answers to a Simple Question, (July 30, 2019).
• Jean Stefancic, Law, Religion, and Racial Justice: A Comment on Derrick Bell's Last Article, (Case Western Reserve Law Review, Vol. 69, No. 2, 2018).
• Greg Walsh, Trinity Western University and the Future of Conservative Religious Education, (2020).
• Lloyd Hitoshi Mayer & Zachary B. Pohlman, What Is Caesar's, What Is God's: Fundamental Public Policy for Churches, (Notre Dame Legal Studies Paper No. 200211 (2020).
• Abhinav Chandrachud, The Many Meanings of Constitutional Morality, (January 18, 2020).
• Muhammad Sohail & Ataullah Khan Mahmood, Islamic Criminal Jurisprudence on the Offence of Trafficking in Persons: An Interpretation of Fasad fil Arz and Hadd Offence, (Pakistan Journal of Islamic Research (2019)).
• Ataullah Khan Mahmood & Ijaz Ali Chishti, Blasphemy Law and Its Interpretation a Pakistan’s Perspective, (Al Tafseer, Vol 34 (2019)).

Parishioners Sue Claiming Wrongful Removal of Priest

An unusual lawsuit was recently filed against the Archdiocese of Detroit by 20 parishioners of a Detroit Roman Catholic parish. The suit filed in a Michigan state trial court claims plaintiffs suffered extreme emotional distress when their priest was falsely accused of sexually abusing a minor and was removed . The complaint (full text) in Dux v. Bugarin, (MI Cir. Ct., filed 1/31/2020), alleges that the Archdiocese, afraid of being attacked by the press for failure to respond to sex abuse charges, twisted allegations and engaged in improper investigatory interrogations to fabricate a rape charge against Fr. Eduard Perrone.  It further alleges that Michael Bugarin, the priest charged with conducting the investigation of Fr. Perrone, is a conservative who was opposed to reforms in the Church advocated by plaintiffs and by Fr. Perrone. The complaint also claims that defendants fraudulently failed to disclose that funds solicited in their annual Catholic Services Appeal would be used for the investigation of Fr. Perrone. Detroit Free Press reports on the lawsuit.

British Court Refuses Financial Support Orders For Non-Complying Religious Marriage Ceremonies

Under Britain's Matrimonial Causes Act, a party to a "void marriage" may obtain a decree of nullity from a family court which entitles the party, among other things, to seek an order for financial support.  In Attorney General v. Akhter, (EWCA, Feb. 14, 2020), Britain's Court of Appeal held that a party to an Islamic marriage ceremony held in a restaurant rather than a building registered as a marriage site and without other required formalities may not obtain a decree of nullity because the original ceremony not was not sufficient to even create a "void marriage."  The husband and wife had planned to follow the religious ceremony with a civil ceremony,  but never followed through on those plans. They remained together for 18 years and had four children before the wife sued for divorce. The court also posted a Media Summary of the decision.

Reporting on the lawsuit, International News quotes a critic of the decision

Today’s judgment will force Muslim and other women to turn to Sharia ‘courts’ that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system.

Air Force Changes Rules To Accommodate Religious Headgear and Beards

As reported by the Air Force Times, the Air Force earlier this month (Feb. 7) amended its Dress and Personal Appearance rules to allow airmen to request a waiver to permit wearing of conservative religious apparel, (Full text of amended Air Force Instruction.) The amended rules specifically address the wearing of hijabs, beards, and turbans or under-turbans/ patkas with uncut beard and uncut hair. The Army issued similar rules in 2017. (See prior posting.) [Thanks to Scott Mange for the lead.]

5th Circuit Dismisses Street Preacher's Suit Over Summons

In Roy v. City of Monroe, (5th Cir., Feb. 13, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit by a street preacher who was issued a summons, but then acquitted, of disturbing the peace. He then sued the police and the city of Monroe, Louisiana for violation of his free speech and free exercise as well as for other violations.  The 5th Circuit summarized it conclusions:

[T]he city of Monroe’s “disturbing the peace” ordinance is not unconstitutionally vague; that, because Sergeant Booth had probable cause to issue a summons under the ordinance, he was entitled to qualified immunity from Roy’s First Amendment retaliation claim; and that, in the light of these holdings, Roy cannot prevail on his claims under the Fourth Amendment and Due Process Clause.

AP reports on the decision.

International Religious Freedom Alliance Founded

Last week, Secretary of State Mike Pompeo announced that 26 nations have joined the United States to create the International Religious Freedom Alliance.  The nations pledged to uphold a Declaration of Principles committing them to take both proactive and reactive actions to uphold freedom of belief, thought, conscience and religion as protected by international law and United Nations International Covenant on Civil and Political Rights. [Thanks to Law & Religion UK for the lead.]

Prof Loses Fight Against School Rules On Transgender Discrimination

In Meriwether v. Trustees of Shawnee State University, (SD OH, Feb. 12, 2020), an Ohio federal district court judge adopted a magistrate's recommendation and dismissed a lawsuit by a college professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The philosophy professor refused to address a transgender student using the student's preferred gender identity title and pronouns. Instead he used only the student's last name. The court said in part:

[The faculty member's] speech-- the manner by which he addressed a transgender student-- was not protected by the First Amendment.  Further, he did not plead facts sufficient to state a claim for a violation of his right to free exercise of religion ... or for a violation of his rights to due process or equal protection.

Metro Weekly reports on the decision.

Suit Seeks Data On Anti-Semitic Hate Crimes In New York

A New York state Freedom of Information Law lawsuit was filed last week by The Forward newspaper seeking information on the rise in anti-Semitic hate crimes in New York City.  The complaint (full text) in The Forward Association, Inc. v. New York City Police Department asks for an order granting the paper immediate access to the requested records. The Forward reported on its lawsuit.

9th Circuit OK's School's Policy On Transgender Students

In Parents for Privacy v. Barr, (9th Cir., Feb. 12, 2020) the U.S. 9th Circuit Court of Appeals upheld an Oregon school district's policy of allowing transgender students to use school bathrooms, locker rooms and showers that correspond to their gender identity. The court issued a summary along with its full opinion, saying in part:

 [T]here is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth.....  [T]he Student Safety Plan provided alternative options and privacy protections to those who did not want to share facilities with a transgender student, even though those alternative options admittedly appeared inferior and less convenient....

... [T]the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children, either independent of the parental right to direct the upbringing and education of their children or encompassed by it.

Texas Sues California In Supreme Court Over Travel Ban To States Allowing LGBTQ Discrimination

This week, the state of Texas filed an original suit in the U.S. Supreme Court against the state of California challenging California's ban on the state paying for travel by its employees to other states that allow discrimination against LGBTQ individuals or families. The complaint (full text of complaint and brief in support) in State  of Texas v. State of California, (US Sup. Ct., filed/2/10/2020) reads in part:

California has enacted and is enforcing economic sanctions against Texas, Texas citizens,and Texas businesses. California has targeted Texas and its residents because To Texas protects the religious freedom of faith-based child welfare providers within its borders....

California’s sanctions against Texas and Texans are born of religious animus and violate the Constitution’s Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1; Interstate Commerce Clause, id. art. I, § 8, cl. 3; and guarantee of Equal Protection, id. amend. XIV, § 1.

The complaint and brief in support of the state's motion for leave to file a bill of complaint which is attached to the complaint seeks an order forcing California to take down its travel ban or remove Texas from it. Texas Attorney General's office has issued a press release announcing the filing of the suit.

Free Exercise Claim As To Marijuana Use Is Rejected

In State of Ohio v. Cook, (OH App., Feb. 10, 2020), an Ohio state appellate court rejected a defendant's claim that his use of marijuana-- which he claimed was part of his Shamanism religion-- violated his free exercise rights. The court said in part:

Even assuming that Cook’s “religious” beliefs are sincerely held, and even assuming that the law restricts his practice, there is certainly a compelling state interest in regulating the use of Schedule I controlled substances. Moreover, the drug laws are facially religion-neutral, and do not target any specific sect of any religion. Thus we find that they are narrowly tailored.... For these reasons we cannot find that the trial court erred in overruling Cook’s suppression motions. 

Zoning Requirement Violates RLUIPA

In Hunt Valley Baptist Church, Inc. v. Baltimore County, Maryland, (D MD, Feb. 10, 2020), a Maryland federal district court rejected federalism and Establishment Clause challenges to the constitutionality of RLUIPA against federalism and Establishment Clause challenges.The court went on to hold that the county's zoning ordinances that require a special exception process for churches to build in a conservation zone, but does not require this for schools, violate RLUIPA's equal terms provisions.

Recent Articles of Interest

From SSRN:

• Scott D. Gerber, Law and Religion in Plymouth Colony, (8 British Journal of American Legal Studies 167 (2019)).
• Kyriake Topidi, Customary Law, Religion and Legal Pluralism in Israel: Islamic Law and Shari'a Courts in Constant Motion, (Revista General de Derecho Público Comparado 26 (2019)).
• Nicholas Aroney, Christianity, Sovereignty and Global Law, (January 14, 2020).
• Hatim Hussain & Prateek Srivastava, Cryonics in India: Fulfilling the Ardent 'Legal' Desire to Live, (Book on Red Biotechnology (2018), Astral International Publishers).
• Shrutanjaya Bhardwaj, Individual Religious Freedom is Subject to Other Fundamental Rights, ((2019) 7 SCC Part-4 J-29).
• Collton Fehr, Re-Thinking the Process for Administering Oaths and Affirmations, (Dalhousie Law Journal, Forthcoming).
• Richard F. Duncan, Seeing the No-Compelled-Speech Doctrine Clearly Through the Lens of Telescope Media, (Nebraska Law Review, Forthcoming).
• Jay Augustine, And When Does the Black Church Get Political?: Responding in the Era of Trump and Making the Black Church Great Again (January 1, 2020). 17 Hastings Race & Poverty Law Journal 87 (2020).

6th Circuit: Non-Recognition Substantially Burdened Christian Identity Inmates

In Fox v. Washington, (6th Cir., Feb, 6, 2020), the U.S. 6th Circuit Court of Appeals held that the trial court had misapplied RLUIPA in upholding Michigan's refusal to recognize prison inmates' Christian Identity, white separatist religion. The prison system denied Christian Identity adherents the right to group worship and full immersion baptism. The court said in part:

... [P]laintiffs have met their burden ,,, to show that the Department has imposed a substantial burden on their religious exercise with respect to group worship for the Sabbath and holidays....

At step three of RLUIPA, the burden shifts to the Department to make two showings. First, it must prove that the imposition of the substantial burden on plaintiffs’ religious exercise was “in  furtherance of a compelling governmental interest.” ... Second, the Department must establish that it used “the least restrictive means of furthering that compelling governmental interest.”... The district court made no such rulings, and the record is not well developed on these issues. “As ‘a court of review, not of first view,’ we will remand the case to the district court to resolve the point in the first instance.”

"Neutral Principles" Approach Controls Issue of Joining Parent Church

In Korean New Life Methodist Church v. Korean Methodist Church of the Americas,(CO App., Feb. 6, 2020), a Colorado state appellate court held that the neutral principles of law approach should be used in deciding a dispute over whether a local church agreed to be under the authority of a national denomination.  It agreed that the trial court, using that approach, correctly determined that the local church never gave up control to submit to the authority of the parent church body, saying in part:

[W]e conclude that the question of submission does not involve a “religious dispute” covering ecclesiastical matters or involving church doctrine.... Rather, it involves an inquiry into the local church’s organizational intent as evidenced by church documents, testimony, and conduct.

Court Upholds Denial of Invocation Slot For Satanic Temple

In Satanic Temple v. City of Scottsdale, (D AZ, Feb. 6, 2020), an Arizona federal district court held that the Satanic Temple failed to prove by a preponderance of the evidence that the denial of their request to deliver a non-theistic invocation at a City Council meeting was because of their religious beliefs. The court rejected defendants' claims that the beliefs of the Satanic Temple do not constitute a religion. However the court credited the testimony of the Acting City Manager that he based his decision on a long-standing unwritten policy that only organizations that had substantial ties to the city could deliver invocations. This decision followed substantial public opposition to the Satanic Temple's appearance, including the orchestration by a church of 15,000 e-mails in opposition. The blog For Infernal Use Only reports on the decision.

UPDATE: In an April 9 opinion (full text), the court, with one exception, refused to amend its findings of fact or to amend its judgment.

Fruit Company Settles Suit Over Refusal To Accommodate Sevent Day Adventist

The EEOC announced yesterday that the North Carolina-based Cottle Strawberry Nursery has settled a religious discrimination lawsuit filed against it by the agency. The company was charged with firing a Seventh Day Adventist because she refused to work on Saturdays.  In the settlement it agreed to pay $12,500 in damages and develop a religious accommodation policy.

Trump, Pence Speak At National Prayer Breakfast

Both Vice President Pence and President Trump spoke at the National Prayer Breakfast in Washington, D.C. yesterday. Pence (full text of remarks) said in part:

As the President has said many times, in his words, “We are a nation of faith.”  And I can assure you that this President, this Vice President, and our entire administration believe in prayer and we rely on the prayers of the American people every day.

In fact, President Trump has made it a practice of opening every Cabinet meeting in prayer.

President Trump spoke later in the morning (full text of remarks). This passage has probably captured the most press attention:

Weeks ago, and again yesterday, courageous Republican politicians and leaders had the wisdom, the fortitude, and strength to do what everyone knows was right.  I don’t like people who use their faith as justification for doing what they know is wrong.  Nor do I like people who say, “I pray for you,” when they know that that’s not so.

Washington Post reports on the Prayer Breakfast.