Ecclesiastical Abstention Does Not Require Dismissal of Negligent Supervision Claim

In Bourque v. Roman Catholic Diocese of Charlotte, NC, (NC App., Nov. 20, 2018), a North Carolina appellate court held that the ecclesiastical abstention doctrine does not require dismissal of a suit alleging negligent supervision and negligent infliction of emotional distress. However it does require dismissal of a negligent hiring claim. The suit alleges that a male church youth leader raped a 14-year old female who sought counsel from him about being bullied. Four years later, he repeatedly raped her again. The court said in part:

Plaintiffs’ claim is not barred by the First Amendment because determining whether Bishop Jugis and the Diocese knew or had reason to know of Defendant’s proclivities for sexual wrongdoing requires only the application of neutral principles of tort law, and “the application of a secular standard to secular conduct that is tortious is not prohibited by the Constitution.”

Court Orders Release of Iraqi Chaldean Detainees

A Michigan federal district court yesterday, in the latest installment in a case filed last year, ordered the release from federal detention of hundreds of Iraqi deportees who have been issued final removal orders, but whom the government has been unable to repatriate. Most of the detainees, according to the court, "are Chaldean Christians who would face persecution, torture, and possibly death if returned to Iraq." In Hamama v. Adducci, (ED MI, Nov. 20, 2018), the court said in part:

The law is clear that the Federal Government cannot indefinitely detain foreign nationals while it seeks to repatriate them, when there is no significant likelihood of repatriation in the reasonably foreseeable future. This principle emanates from our Constitution’s core value of rejecting arbitrary restraints on individual liberty.

The issue the Court now resolves is whether there is such a likelihood of repatriation for scores of Iraqi nationals whom the Government has detained for an extended period—many for well over a year—while it engages in a diplomatic dialogue with Iraq that has yet to produce any clear agreement on repatriation. In fact, the weight of the evidence actually uncovered during discovery shows that Iraq will not take back individuals who will not voluntarily agree to return. This means that the Iraqi detainees could remain locked up indefinitely—many in local jails.... [T]he Government has acted ignobly in this case, by failing to comply with court orders, submitting demonstrably false declarations of Government officials, and otherwise violating its litigation obligations—all of which impels this Court to impose sanctions.

As explained fully below, the Court will grant a preliminary injunction, as requested by Petitioners in this case, ordering that those detained more than six months be released under orders of supervision.

ACLU issued a press release announcing the decision.

Court Holds Federal Female Genital Mutilation Statute Unconstitutional

A Michigan federal district court today held, on federalism grounds, that the federal Female Genital Mutilation statute, 18 USC 116, is unconstitutional. The case involves the prosecution of medical personnel and of the mothers of minor girls in the small, Indian-Muslim Dawoodi Bohra community. (See prior posting.)  In United States v. Nagarwala, (ED MI, Nov. 20, 2018), the court rejected the government's argument that the statute can be supported as an exercise of Congress' treaty power or its power to regulate interstate commerce.

The International Covenant on Civil and Political Rights which Congress ratified in 1992 (subject to certain understandings and reservations) requires the adoption of laws to protect the rights of minors. One of the understandings imposed by Congress was that ratification would not change the relative roles of the federal and state governments. The court said in part:

Congress overstepped its bounds in  legislating to prohibit FGM.... FGM is a "local criminal activity" which, in keeping with longstanding tradition and our federal system of government, is for the states to regulate, not Congress.

In rejecting the government's Commerce Clause arguments, the court said in part:

In the present case, the government has failed to show that FGM is a commercial activity. It claims that “[l]ike child pornography and marijuana, an interstate market exists for FGM.” ... Yet the government’s only evidence of such a market is the fact that it has alleged nine FGM victims in the present case, five of whom were brought to Michigan from neighboring states.... This is not a market, but a small number of alleged victims. If there is an interstate market for FGM, why is this the first time the government has ever brought charges under this 1996 statute? The government’s attempt to show that there is an interstate market for FGM falls flat; its comparison to the multi-billion-dollar interstate markets for marijuana and pornography is unsupported and unconvincing....

Finally, the government asserts that only a federal statute can deal with FGM because, as Congress asserted in its fourth finding, “the unique circumstances surrounding the practice of female genital mutilation place it beyond the ability of any single State or local jurisdiction to control.”... This argument fails for at least two reasons. First, the Commerce Clause allows Congress to regulate commercial activity that has a substantial effect on interstate commerce, not activity that is “beyond the ability of any single State or local jurisdiction to control.” Second, the government informs the Court that twenty-seven states have passed FGM statutes ... and nothing prevents the others from doing so.

Detroit News reports on the decision.

6h Circuit: Police Need Not Give Journalist Booking Photos of Woman Without Hijab

In Schlussel v. City of Dearborn Heights, (6th Cir., Nov. 19, 2018), the U.S. 6th Circuit Court of Appeals rejected arguments by a journalist that the City violated her 14th and 1st Amendment rights when it refused her Michigan Freedom of Information Act request for booking photos that were taken of a Muslim woman, Malak Kazan, that showed her without her hijab.  The City's refusal was pursuant to a privacy policy it instituted in response to a previous suit by brought Kazan after her arrest. In this case journalist Deborah Schlussel argued unequal treatment because booking photos of Kazan had been furnished to Kazan's lawyer before the privacy policy was adopted. The court rejected Schussel's equal protection, as well as her Establishment Clause, argument.

Suit Seeking Cannabis Exemption For Rastafari Moves Ahead In Iowa

An Iowa state trial court has denied a motion by the Iowa Board of Pharmacy to dismiss a suit brought against it claiming that it abused its discretion when it refused to recommend to the state legislature an exemption for religious use of cannabis by Rastafari.  (Order in Olsen v. Iowa Board of Pharmacy, (IA Dist. Ct., Nov. 16, 2018). Links to all the pleadings in the case as well as to audio of oral arguments are available here. (See prior related posting.)

Recent Articles of Interest

From SSRN:

• Marc O. DeGirolami, The Sickness Unto Death of the First Amendment, (Harvard Journal of Law and Public Policy, Forthcoming).
• Gerald Lebovits, Holocaust Houdinis (Condensed Remembrance Version), (Just Us 12 (Apr. 2018) (Remembrance Issue No. 7)).
• Benjamin L. Berger, Liberal Constitutionalism and the Unsettling of the Secular, (in Rex Adhar, ed., Research Handbook on Law and Religion (Northampton, Mass: Edward Elgar, 2018), 198-220).
• Benjamin L. Berger, Religious Freedom in Canada: A Crucible for Constitutionalism, ([2018] 1 Quaderni di Diritto e Politica Ecclesiastica 111-125).
• Leslie Kendrick & Micah Schwartzman, The Etiquette of Animus, (Harvard Law Review, Vol. I32, No. 1, p. 33-70, 2018).
• Benjamin L. Berger, Assessing Adler: The Weight of Constitutional History and the Future of Religious Freedom, (National Journal of Constitutional Law (2018 Forthcoming)).
• Faisal Bhabha, Religious Freedom in a Multicultural Society, (Cardus Law Research Series on Religious Freedom (January 2017)).
• Zachary Price, Symmetric Constitutionalism: An Essay on Masterpiece Cakeshop and the Post-Kennedy Supreme Court, 70 Hastings L.J., Forthcoming).
• Steven Douglas Smith, An Open Letter to Justice Ruth Bader Ginsburg, (2018).
• Rebecca Ruth Gould, Is the ‘Hate’ in Hate Speech the ‘Hate’ in Hate Crime? Waldron and Dworkin on Political Legitimacy, (Forthcoming, Jurisprudence).
• Joseph A. Seiner, The Discrimination Presumption, (Notre Dame Law Review, 2019 (Forthcoming)).

From SmartCILP:

• Erin E. Stiles, How to Manage a Marital Dispute: Legal Pluralism from the Ground Up in Zanzibar, 8 U.C. Irvine Law Review 275-297 (2018).

Recent Prisoner Free Exercise Cases

In Howard v. Polley, 2018 U.S. Dist. LEXIS 190747 (D NV, Nov. 6, 2018), a Nevada federal district court allowed a Muslim inmate to move ahead with his complaint that it takes up to several weeks for Muslim inmates to be screened so they can attend Jumu'ah services, while there is no screening for Christian and Jewish inmates.

In Kindred v. Allenby, 2018 U.S. Dist. LEXIS 191495 (ED CA, Nov. 8, 2018), a California federal magistrate judge held that an inmate's complaints regarding search and seizure of personal and religious property are subject to dismissal.

In Thomas v. Cox, 2018 U.S. Dist. LEXIS 192576 (D NV, Nov. 9, 2018), a Nevada federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 192645, Oct. 24, 2018) and denied a preliminary injunction to prevent destruction of videos of the prison culinary area in connection with his complaint that he was not furnished kosher meals.

In Hansler v. Kelley, 2018 U.S. Dist. LEXIS 192817 (WD AR, Nov. 13, 2018), an Arkansas federal district court dismissed a Wiccan inmate's complaint that his Wiccan Bible and Book of Grimoires were confiscated, and that there were no Wiccan religious leaders or volunteers to supervise its religious services.

In Doyle v. United States, 2018 U.S. Dist. LEXIS 192924 (ED KY, Nov. 13, 2018), a Kentucky federal district court dismissed a Hanafi Muslim inmate's complaint that inmates could pray in groups no larger than three.

In Shakanasa v. Allison, 2018 U.S. Dist. LEXIS 193482 (ND CA, Nov. 13, 2018), a California federal court allowed an inmate to move ahead with his complaint that he was not permitted to change his name or purchase religious items, and for retaliation.

In Wallace v. Solomon, 2018 U.S. Dist. LEXIS 193662 (WD NC, Nov. 14, 2018), a North Carolina federal district court dismissed an inmate's complaint that the policy providing for non-meat selections is inadequate to comply with Islamic dietary law.

Proposed HHS Rule Will Give Contraceptive Alternative To Women Excluded By Employers' Religious Objections

The New York Times reported yesterday that the Department of Health and Human Services has issued a new proposed rule that would blunt the impact of its recent final rules allowing employers to assert religious or moral objections to furnishing contraceptive coverage in their health plans. Under the proposed rule, any woman denied coverage from her employer because of the employer's religious or moral objections would be eligible for the family planning program for low income families offered under Title X of the Public Health Service Act, regardless of the woman's actual income. [Thanks to Steven H. Sholk for the lead.]

Victim of Neo-Nazi Website Attacks Can Move Ahead With Lawsuit

In Gersh v. Anglin, (D MT, Nov. 14, 2018), a Montana federal district court denied a motion to dismiss made by Andrew Anglin, publisher of the alt-right website the Daily Stormer in a suit against him for invasion of privacy, intentional infliction of emotional distress and violation of Montana's Anti-Intimidation Act.  The suit was filed by Tany Gersh, a realtor who was the subject of abusive articles on Daily Stormer over her interactions with the mother of neo-Nazi leader Richard Spencer. As described by the court:

In the articles, Anglin described Gersh's behavior as extortion, and Anglin drew heavily on crude ethnic stereotypes, painting Gersh as acting in furtherance of a perceived Jewish agenda and using Holocaust imagery and rhetoric. He called for "confrontation" and "action"....

When Gersh filed her Complaint in the spring of 2017, she and her family had received more than 700 disparaging and/or threatening messages over phone calls, voicemails, text messages, emails, letters, social media comments, and Christmas cards. 

Refusing to dismiss the suit on free speech grounds without a more fully developed factual record, the court said in part:

At minimum, Gersh has made a plausible claim that Anglin' s speech involved a matter of strictly private concern.... 

The context of the case is, at first blush, public-a series of blog posts on an alt-right "news" blog, which often engages with political issues, albeit from an extremist viewpoint. However, under a liberal interpretation of the Complaint, the content of the speech may be seen as strictly private; Anglin launched a campaign of unrelated personal attacks on a Whitefish realtor, her husband, and their son because of a perceived conflict between Gersh and the mother of Anglin's friend, another white supremacist. Although Anglin drew heavily on his readers' hatred and fear of ethnic Jews, rousing their political sympathies, there is more than a colorable claim that he did so strictly to further his campaign to harass Gersh...

CNN reports on the decision. [Thanks to Scott Mange for the lead.]

Employer's Proposed Religious Accommodations Were Adequate

In Miller v. Port Authority of New York & New Jersey, (D NJ, Nov. 13, 2018), a New Jersey federal district court held that the religious accommodations offered to a newly-hired Jewish employee (shift swapping or use of vacation or comp time) were reasonable and the employee's preferred accommodation of his Sabbath observance did not need to be offered. The court said in part:

The employees in Miller’s unit are unionized, and as a result, Port Authority is bound by a collective bargaining agreement. Creating a permanent shift schedule for Miller exempting him from work on the Sabbath or the Jewish holidays, without first offering that option to more senior employees, would have violated the agreement’s seniority provision. It also would have violated the past-practices provision of the agreement, which requires that the established rotational schedule be maintained. In short, Miller’s preferred accommodation would have placed Port Authority in violation of its collective bargaining agreement and required other, more senior employees to work less desirable additional Friday evening and Saturday shifts.

On this record, the religious accommodation offered by Port Authority was reasonable. And because the blanket exemption proposed by Miller would have imposed more than a de minimis hardship, the employer was not required to accept it.

[Thanks to Steven H. Sholk for the lead.]

Christian Student Group Sues University For Registration

A suit was filed in Colorado federal district court this week by a Christian student organization at the University of Colorado that was denied registered status because it requires its officers must share and personally hold its Christian beliefs. It also requires prospective members to agree with and promote the organization's purposes. Registered status gives an organization access to student activity fees. The complaint (full text) in Ratio Christi at the University of Colorado v. Sharkey, (D CO, filed 11/14/2018) alleges:

[The University] has promised to register Ratio Christi only if the group changes its leadership and membership criteria. That is, Plaintiffs must agree to abandon their rights to free speech, free association, free exercise of religion, freedom from unconstitutional conditions, due process, and equal protection to access campus resources available to all other student organization.

ADF issued a press release announcing the filing of the lawsuit.

Free Exercise Claim Over Search Warrant Execution Fails

In Brown v. Scanlon, 2018 U.S. Dist. LEXIS 194049 (MD PA, Nov. 13, 2018), a Pennsylvania federal magistrate judge recommended dismissing a free exercise claim growing out of the execution of a search warrant at the residence of Shannon Brown.  Brown claims that her 1st Amendment rights were infringed when police forced her to lie on the floor handcuffed in her underwear during the search.  She says that as a Muslim woman, being in a state of undress around men caused her to feel defiled and embarrassed. She also complained that she was forced to remove her head scarf for her mugshot at the courthouse.

Catholic Diocese Opposes Taking of Church Land For Border Fencing

The Catholic Diocese of Brownsville, Texas filed suit in federal district court on Nov. 6 seeking a temporary restraining order to prevent the federal government from exercising its eminent domain power to take church land to construct border fencing and security.  According to the Brownsville Herald, last month the Department of Homeland Security waived more than two dozen laws to facilitate construction of border fencing through Hidalgo County and filed a Declaration of Taking that includes the La Lomita Chapel and Juan Diego Academy in Mission, Texas. The Diocese argues that the taking violates its free exercise rights and that the DHS waivers exceeded the authority granted by Congress.

New York's Top Court Denies Mandamus In Battle Against Kaporos Ritual

In Alliance to End Chickens as Kaporos v New York City Police Department, (NY Ct App, Nov. 14, 2018), New York state's highest court agreed that a petition for a writ of mandamus to require enforcement of public health and animal cruelty laws should be denied. According to the Court:

Plaintiffs allege those laws are routinely violated when thousands of chickens are killed during the religious practice of Kaporos performed in certain Brooklyn neighborhoods prior to Yom Kippur....

Enforcement of the laws cited by plaintiffs would involve some exercise of discretion.... Moreover, plaintiffs do not seek to compel the performance of ministerial duties but, rather, seek to compel a particular outcome. Accordingly, mandamus is not the appropriate vehicle for the relief sought.

WABC reports on the decision.

WAPO Runs Study of Southern Poverty Law Center

The Washington Post Magazine last week published a lengthy investigative article on the Southern Poverty Law Center.  Titled The State of Hate, frames the issue it explores as follows:

The SPLC was founded in 1971 to take on legal cases related to racial injustice, poverty and the death penalty. Then, in the early 1980s, it launched Klanwatch, a project to monitor Klan groups, neo-Nazis and other white supremacists. Their hate seemed self-evident. But eventually the SPLC began tracking — and labeling — a wider swath of extremism. And that’s when things became more complicated.

Today the SPLC’s list of 953 “Active Hate Groups” is an elaborate taxonomy of ill will.....

For decades, the hate list was a golden seal of disapproval, considered nonpartisan enough to be heeded by government agencies, police departments, corporations and journalists. But in recent years, as the list has swept up an increasing number of conservative activists — mostly in the anti-LGBT, anti-immigrant and anti-Muslim categories — those conservatives have been fighting back.....

Ironically, the assault on the SPLC comes at a time when, by other measures, it has reached a new peak of public regard. Last year the group raised a whopping $132 million through its famously relentless direct-mail appeals and other giving.

Get Religion has more on the WAPO article.

ACLU Settles Free Speech Suit Against Missouri City

ACLU of Missouri announced yesterday that it has settled a lawsuit which it filed earlier this year against the city of Wentzville after the city removed a woman from a Board of Alderman's meeting for criticizing a 16-foot "In God We Trust" sign that had been installed on the front of the meeting room dias. According to the ACLU:

Tonight, the Wentzville governing body passed and read aloud a resolution affirming its commitment to uphold First Amendment freedoms and acknowledging that members of the public of any or no religions tradition are welcome to participate in local government. The city also resolved to apply the updated city code evenhandedly, without censoring speech based on its content during the open forum portion of a Wentzville Board of Aldermen meeting.

The settlement also stipulates that Wentzville must advise law enforcement officers assigned to public meetings that they have an independent obligation to uphold the Constitution. Officers will now independently assess if probable cause exists before removing someone from a meeting.

9th Circuit Hears Oral Arguments In Title VII Case Against Salvation Army

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Garcia v. Salvation Army (video of full arguments). In the case, an Arizona federal district court dismissed a Title VII religious discrimination claim brought against the Salvation Army. Plaintiff claimed that she was subjected to discrimination, retaliation, and hostile work environment after she stopped attending Salvation Army services.  The court held that Title VII's religious organization exemption applies and that the Salvation Army did not waive the defense by failing to assert it as an affirmative defense. (See prior posting.) [Thanks to John Jackson for the lead.]

8th Circuit: Title VII Failure To Accommodate Does Not Equal Retaliation

In EEOC v. North Memorial Health Care, (8th Cir., Nov. 13, 2018), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, interpreted Title VII's unlawful retaliation provision. At issue is the interpretation of 42 U.S.C. § 2000e-3(a) that makes it illegal to discriminate against an employee or applicant for employment because the person "has opposed" an employer's discriminatory practices. In the case, an employment offer to a Seventh Day Adventist registered nurse was withdrawn because she was unable to work Friday night shifts and an accommodation was not feasible.  The majority held that merely requesting religious accommodation is not necessarily an expression of opposition to a denial of the accommodation.  Judge Grasz dissenting explained the opposing views:

I do share the Court’s apparent concern that Title VII not be read so that meritless discrimination claims based on a failure to accommodate may simply be repackaged and resurrected as retaliation claims. In my view, however, it is the causation element that properly does the work of weeding out such claims, not the opposition requirement. Where an employer, after denying an accommodation request that it is not legally obligated to grant, refuses to hire an applicant because the applicant cannot or will not perform the job without accommodation, the employer can show the legitimacy of the action.... Unlike such repackaged claims, the claim here should survive because there is evidence of retaliation, namely the evidence that Sure-Ondara told North Memorial she would work the job even without the accommodation and would show up for work if she could not find a replacement. Despite her willingness to work without accommodation, North Memorial withdrew its job offer, making it reasonable for a fact-finder to infer that it did so because she had requested an accommodation.

Chaplaincy Program of Wisconsin Justice Department Challenged

Suit was filed yesterday in a Wisconsin state trial court challenging the constitutionality of a new Chaplaincy Program for employees and their families created by the Wisconsin Department of Justice. The complaint (full text) in Freedom From Religion Foundation, Inc. v. Schimel, (WI Cir. Ct., filed 11/13/2018),  alleges that six chaplains from across the state have been appointed initially-- all white males from Christian faiths. The program excludes secular mental health professionals. Chaplains operate under the direction of a paid Chaplaincy Program Coordinator. The suit contends that the program violates the U.S. Constitution's Establishment Clause.  FFRF issued a press release announcing the filing of the lawsuit.

FBI Releases 2017 Hate Crimes Report

Yesterday the FBI released  its 2017 Hate Crime Statistics. The number of hate crime incidents increased 17% from last year-- 6,121 incidents in 2016 and 7,175 in 2017. However the year-to-year data may not be fully comparable since 1,000 additional agencies reported in 2017.  In 2017, hate crimes motivated by religious bias accounted for 1,564 incidents (totaling 1,679 offenses), or 22% of all incidents. This compares with 1,273 incidents in 2016. (See prior posting). Hate crimes based on race comprised 58% of all incidents in 2017.  Of the religiously-motivated hate crimes in 2017, some 938 (60%) were anti-Jewish while 273 (17%) were anti-Muslim. 73 incidents were anti-Catholic. ADL issued a press release analyzing the report.