Free Exercise Claim Against Hospital Over Diet For Daughter Moves Ahead

In Dixon v. Department of Health and Human Services, (ED MI, Aug. 11, 2017), a Michigan federal district court allowed parents whose daughter was ordered hospitalized for mental health treatment to proceed with several claims.  Among them is a claim that the hospital is violating the parents' free exercise rights by feeding their daughter pork with knowledge of the family's religious beliefs.

Court Refuses To Enforce Arbitration Award In Church Control Dispute

In Patterson v. Shelton, (ED PA, Aug. 11, 2017), a Pennsylvania federal district court dismissed an attempt to obtain enforcement of an arbitration award entered over ten years ago in a dispute over control of the General Assembly of the Church of the Lord Jesus Christ.  The underlying litigation began 22 years ago.  the court said in part:

Petitioner seeks to have this Court adjudicate a church controversy by confirming an Arbitration Award, albeit one that was vacated, which would require extensive inquiry into church matters. A solution to the parties’ problems involves more than mere application of neutral principles of law. It involves a deeper look into the church’s control over its leaders, how they acquire and maintain authority, and how the church is being managed.... Probing deeper into these matters would do exactly what the law prohibits courts from doing: becoming entangled in church issues.

The court also relied on several other grounds in dismissing the case.

Federal Suit By Houston Employees Seeks To Preserve Benefits For Same-Sex Couples

A suit was filed yesterday in a Texas federal district court by Houston city employees and their same-sex spouses seeking to preserve the same spousal benefits that are received by other city employees. In a decision handed down last month, the Texas Supreme Court kept alive a suit by Houston taxpayers challenging the city's extending spousal benefits to same-sex married couples. (See prior posting.) In the complaint (full text) filed yesterday in Freeman v. Turner, (SD TX, filed 8/10/2017), plaintiffs asked the federal district court to declare that the city may not rely on the Texas DOMA Statute and the Texas Marriage Amendment, which have previously been held unconstitutional by federal courts, to justify depriving city employees with same-sex spouses to to the same spousal benefits extended to other married employees. The complaint also asks the court to find that denial or withdrawal of such benefits would be unconstitutional under the equal protection and due process clauses. Texas Observer reports on the lawsuit.

Court Rejects Challenge To Permit Denial For Outdoor Weddings

In Epona v. County of Ventura, 2017 U.S. Dist. LEXIS 126533 (CD CA, Aug. 9, 2017), a California federal district court dismissed a free exercise challenge to the denial of a conditional use permit to Epona Estate  that wants to rent out its premises for outdoor weddings. Plaintiff claimed that the county selectively discriminates against weddings. (See prior related posting.)

Suit Challenges Trump's Reversal of Military Policy On Transgenders

Five members of the military filed suit yesterday challenging President Trump's announcement through Twitter that he will reverse the Obama Administration's policy that allows transgender individuals to serve openly in the military.  The complaint (full text) in Doe v. Trump, (D DC, filed 8/9/2017), contends that the White House counsel's office has turned Trump's decision into official guidance which will be communicated to the Department of Defense.  The suit alleges that Trump's directive unconstitutionally discriminates against transgender individuals, is arbitrary, and that the government is estopped from rescinding plaintiffs' rights.  NPR reports on the lawsuit.

Religious School Asserts Ecclesiastical Abstention Defense

As reported by Houston Chronicle, an Episcopal elementary school in Galveston, Texas has asserted an ecclesiastical abstention defense to a lawsuit filed by the mother of a student alleging an inadequate response by the school to bullying and racial harassment of her sixth-grade son.  Plaintiff says that 3 of her son's classmates gave her son a piece of paper folded to resemble a KKK hood, and bullied them in other ways. The school only required the students to send apology notes, and gave a one day suspension to one of the students.  The defendants' motion to dismiss (full text) in Beans v. Trinity Episcopal School, (TX Dist. Ct., filed 8/1/2017) argues:

As a religious institution, Trinity has a constitutionally-protected freedom to make decisions regarding the discipline of its students without judicial interference. The courts cannot second guess those decisions, even in the guise of purportedly "secular" causes of action arising from tort principles. Plaintiffs' claims ask the Court to intrude upon Trinity's internal affairs and governance relating to discipline, investigation, and standards of conduct—which is precisely what the ecclesiastical abstention doctrine was designed to prevent.

Differential Marriage License Requirement For Foreign Born Held Unconstitutional

In Vo v. Gee, (ED LA, Aug. 8, 2017), a Louisiana federal district court granted a permanent injunction, holding unconstitutional a Louisiana statute that treats differently applicants for a marriage license who were born outside the United States from those born in the U.S. or one of its territories.  Under the law a birth certificate must be produced in order to obtain a marriage license, but those born in the U.S. may obtain a waiver of the requirement.  Those born elsewhere, such as the Vietnamese refugee who is plaintiff in the case, are not entitled to the same type of waiver and must also provide a passport or visa.  The court concluded that this violates the Equal Protection clause as well as the substantive due process right to marriage, even though a subsequent Louisiana law allows a judicial waiver of the birth certificate requirement.  Washington Post reports on the decision.

Case Remanded For Determination of Whether Church Is Hierarchical

In  Slagle v. Church of the First Born of Tennessee, (TN App., Aug. 7, 2017), a case involving a dispute over control of church property after a split among church members, a Tennessee appellate court remanded the case to the trial court for a determination of whether the church was congregational or hierarchical. In doing so, the court noted that a church may be congregational in some respects while it is hierarchical in other respects. The court noted that here the relevant question is whether the church is congregational for purposes of ownership and control of property.

In Zimbabwe, Businessman Sues Church Leader For False Prophecies of A Debt Cancellation Miracle

In Zimbabwe, a suit was filed last week against United Family International Church leader Prophet Emmanuel Makandiwa and his wife Ruth.  According to Bulawayo24 News, former members of the church-- a businessman and his wife from the country's capital of Harare-- are seeking damages of $6.5 million (US), claiming that the Church leader through false prophecies and fraud convinced them to donate over $1.1 million (US) over a 5-year period by telling them that this would lead to a debt cancellation miracle. Plaintiffs also seek damages for various related conduct, including the Church leader's convincing them to hire a disbarred lawyer to try to recover $1.7 million from a lender.

Recent Articles of Interest

From SSRN:

• Ira C. Lupu & Robert W. Tuttle, Trinity Lutheran Church v. Comer: Paradigm Lost?, (Forthcoming, American Constitution Society for Law & Policy Supreme Court Review, October Term 2016).
• Meghan Boone, The Autonomy Hierarchy, (Texas Journal on Civil Liberties and Civil Rights, Vol. 22, No. 1, 2016).
• Julio C. Colón, Improving Dispute Resolution for Muslims in the United States, (International Conference on Dispute Resolution 2017: Modern Trends in Effective Dispute Resolution, International Islamic University of Malaysia (2017)).
• Nicholas Aroney, Individual, Community and State: Thoughts on Jane Norton, Freedom of Religious Organizations, (July 17, 2017).
• Adam Perry, Pardons and Mercy, (July 30, 2017).
• Robert L. Tsai, Obama's Conversion on Same-Sex Marriage: The Social Foundations of Individual Rights, (Connecticut Law Review, Vol. 50, 2017).

From SSRN (International and Comparative Law):

• Jaclyn L. Neo, Realizing the Right to Freedom of Thought, Conscience, and Religion: The Limited Normative Force of the ASEAN Human Rights Declaration, (Human Rights Law Review (2017, Forthcoming)).
• Jaclyn L. Neo, Secularism Without Liberalism: Religious Freedom and Secularism in a Non-Liberal State, (Michigan State Law Review, 2017).
• John Lunstroth, Human Rights and Cultural Diversity in UNESCO Bioethics, (in Advancing Global Bioethics, Vol. 6: Religious Perspectives on Bioethics and Human Rights (Tham, Joseph, Man Kwan, Kai, Garcia, Alberto (Eds.) 2017, Springer Nature, New York, Forthcoming).

From SSRN (Jewish Law):

• Raphael Cohen-Almagor, The Monopoly of Jewish Orthodoxy in Israel and Its Effects on the Governance of Religious Diversity, (in Anna Triandafyllidou and Tariq Modood (eds.), The Problem of Religious Diversity (Edinburgh: Edinburgh University Press, 2017), pp. 250-272).
• Levi Cooper, Mysteries of the Paratext: Why Did Rabbi Shneur Zalman of Liady Never Publish His Code of Law?, (Diné Israel 31 (2017): 43-84).

Recent Prisoner Free Exercise Cases

In Henry v. Bright, 2017 U.S. Dist. LEXIS 119374 (D SC, July 31, 2017), a South Carolina federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 119701, July 11, 2017) and dismissed a complaint that prison policies do not permit Buddhist inmates to use scented oils.

In Roberts v. Perry, 2017 U.S. Dist. LEXIS 120621 (WD NC, Aug. 1, 2017), a North Carolina federal district court upheld a prison's refusal to recognize "Nation of Israel" (a white-supremacist group) as an approved religion and the concomitant limit on the number of religious texts that an adherent can possess.

In Evans v. Bilal, 2017 U.S. Dist. LEXIS 121795 (ND IL, Aug. 2, 2017) an Illinois federal district court dismissed an inmate's complaint that he was not permitted to participate in religious services with other Muslim inmates.

In Butler v. California Department of Corrections, 2017 U.S. Dist. LEXIS 122724 (ND CA, Aug. 3, 2017), a California federal district court permitted an inmate to move ahead with his attempt to obtain showing of a Nation of Islam video and obtaining a NOI chaplain.

Retaliation Suit By Dismissed Nursing Student Moves Ahead

In Brown v. William Rainey Harper College, 2017 U.S. Dist. LEXIS 121333 (ND IL, Aug. 1, 2017), an Illinois federal district court allowed a student who was dismissed from the Practical Nursing Certificate Program at William Rainey Harper College to move ahead with her complaint that the action taken against her resulted from her practice of praying with her patients, as well as because of her complaints to the Department of Education's Office of Civil Rights.

3rd Circuit Rejects Secular Anti-Abortion Group's Challenge To ACA Contraceptive Mandate

In Real Alternatives Inc. v. Secretary Department of Health and Human Services, (3d Cir. Aug. 4, 2017), a 3-judge panel of the U.S. 3rd Circuit Court of Appeals held unanimously that the Equal Protection Clause does not require the government to provide a secular anti-abortion group with the same exemption from the Affordable Care act contraceptive coverage mandate as is provided to houses of worship. The majority said in part:

Real Alternatives is in no way like a religious denomination or one of its nontheistic counterparts—not in structure, not in aim, not in purpose, and not in function. We do not doubt that Real Alternatives’s stance on contraceptives is grounded in sincerely-held moral values, but “religion is not generally confined to one question or one moral teaching; it has a broader scope.”

The court by a vote of 2-1 also rejected a claim under RFRA that religious exercise of employees who oppose contraceptives, but work for secular employers, is substantially burdened when the government requires the employer to include contraceptive coverage in their health plans. Judge Jordan filed an an opinion dissenting on this issue.  He contended that requiring objecting employees to pay for insurance that includes contraceptive coverage creates a substantial burden and that the government had not used the least restrictive means to achieve a compelling governmental interest. Legal Intelligencer reports on the decision.

Cert. Filed In Wyoming's Disciplining of Judge For Refusing To Perform Same-Sex Marriages

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in Neely v. Wyoming Commission on Judicial Conduct and Ethics, (cert. filed 8/4/2017).  In the case, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. (See prior posting). ADF issued a press release announcing the filing of the petition for review.

German Court Says Church of Flying Spaghetti Monster Is Not a Religion

In Germany, a court in Frankfurt an der Oder has upheld a decision by the Infrastructure Ministry of Brandenburg to deny the Church of Flying Spaghetti Monster (FSM) a permit to put up signs announcing its religious services. As reported this week by The Vanguard, FSM contended that it should be able to erect road signs publicizing its "noodle masses" just as local Catholic and Protestant churches erect signs giving details of their worship services. However the court ruled that FSM is neither a religious community or a community with a common world view.

1st Circuit: Historic Rhode Island Synagogue Owned By New York Congregation

In a decision handed down yesterday, the U.S. 1st Circuit Court of Appeals reversed a Rhode Island federal district court (see prior posting) and held that Rhode Island's historic Touro Synagogue is owned by New York's Shearith Israel congregation. In Congregation Jeshuat Israel v. Congregation Shearith Israel, (1st Cir., Aug. 2, 2017), the court also concluded that a pair of historic silver Torah ornaments worth some $7 million are also owned by the New York congregation.  Retired Supreme Court Justice David Souter, sitting by designation on the case, wrote the opinion for the court, saying that the court should rely on the parties' own agreements which are the "instruments customarily considered by civil courts."  He said in part:

The district court approached the competing claims ... by a conscientious and exhaustive historical analysis.... Much of that history reflected, albeit without directly addressing, the doctrinal tensions between the CSI congregation, committed to preserving Sephardic practice at Touro, and the later Newport congregation that emerged from the 19th century immigration, which included a significant Ashkenazic element. The district court was scrupulous in avoiding any overt reliance on doctrinal precepts....

Nonetheless, the court's historical investigation was unavoidably an immersion in the tensions between two congregations that were not doctrinally identical.... These are circumstances in which we think that the First Amendment calls for a more circumscribed consideration of evidence than the trial court's plenary enquiry into centuries of the parties' conduct....

AP reports on the decision.

South Carolina Supreme Court Resolves Property Dispute In Episcopal Church

In The Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (SC Sup. Ct., Aug. 2, 2017), the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. AP summarized the background:

The conservative Diocese of South Carolina, dating to 1785 and one of the original dioceses that joined to form the Episcopal Church, left the national church in 2012 amid differences over theological issues, including the authority of Scripture and the ordination of gays. The group has since affiliated with the Anglican Church in North America, a group that formed in 2009.

Parishes in the region that didn’t leave the national church formed a diocese now known as The Episcopal Church in South Carolina.

The conservative diocese sued in efforts to protect its identity, the diocesan seal and other symbols it uses, and $500 million in church property, including the individual parishes’ holdings, as well as large properties including an Episcopal church camp in the Charleston area.

While the Supreme Court's opinions are complex, Acting Justice Toal in her dissenting opinion summarized the resulting holdings:

A majority of the Court ... agree that ... in secular church disputes, our state courts should apply neutral principles of law to resolve the case....  [T]he same majority would find this is a secular church dispute, and the Court must therefore apply longstanding trust law to resolve the questions before us. I would find the parties' actions did not comply with the formalities required to create a trust in this state....  Justice Kittredge would find the parties created a revocable trust in favor of the national church, but the plaintiffs later took steps to revoke their accession to the trust.... However ... a ... majority of the Court ... would ... transfer title of all but eight of the plaintiffs' properties to the defendants. While [2 justices] ... would do so because they believe this is an ecclesiastical dispute and the Court must therefore defer to the national church's decision on the matter, [another] would do so because he believes all but eight of the plaintiffs acceded to the Dennis Canon in a manner recognizable under South Carolina's trust law. Thus, the result reached on title is: 1) with regard to the eight church organizations which did not accede to the Dennis Canon, [3 justices] ... would hold that title remains in the eight plaintiff church organizations; 2) with regard to the twenty-eight church organizations which acceded to the Dennis Canon, [3 justices]... would hold that a trust in favor of the national church is imposed on the property and therefore, title is in the national church; and 3) with regard to Camp St. Christopher, [3 justices] would hold title is in the trustee corporation for the benefit of the associated diocese, whereas [2 others] ... would hold that the trustee corporation holds title for the benefit of the disassociated diocese. 

As to the second issue on appeal, involving the plaintiffs' claims for service mark infringement, [3 justices] ... would find the marks are validly registered under state law, but leave the ultimate resolution of the parties' conflicting claims to the pending federal case.

[Thanks to Tom Rutledge for the lead.]

4th Circuit Remands Transgender Bathroom Case

In Grimm v. Gloucester County School Board, (4th Cir., Aug. 2, 2017), the U.S. 4th Circuit Court of Appeals remanded to a Virginia federal district court a high-profile Title IX case on transgender rights, instructing the district court to determine whether the case has become moot.  At issue is whether a school board policy that required students to use rest rooms that correspond to their biological sex rather than their gender identity violates Title IX or the equal protection clause.  Previously the Supreme Court had granted certiorari, but when the Trump Administration withdrew Title IX guidance that had been issued by the Obama Administration, the Supreme Court remanded the case to the 4th Circuit for further consideration in light of that action. (See prior posting.) This past June, plaintiff graduated high school, so defendants contend that the case is now moot.  Plaintiff says he might still attend alumni or community events at the school.  It is also uncertain whether the school's bathroom policy extends to alumni as well as current students.  The 4th Circuit says that this requires further factual development by the district court. Reuters reports on the decision.

New Suit Challenges Settlement Agreement In Mosque Construction Dispute

As previously reported, in May a settlement was reached in a suit by the Islamic Society of Basking Ridge which charged RLUIPA violations, as well as violations of the 1st and 14th Amendments, in Bernards Township, New Jersey's refusal to grant site plan approval for construction of a mosque.  As part of the settlement agreement (full text), the parties agreed that a Planning Board hearing on the agreement and related mosque construction will be held, and that, among other things, at the hearing "No commentary regarding Islam or Muslims will be permitted." Now a federal lawsuit has been filed challenging this provision of the settlement agreement.  The complaint (full text) in Quick v. Township of Bernards, (D NJ, fled 7/31/2017) alleges that the commentary ban  suppresses speech based on its content; amounts to a prior restraint; violates the Establishment Clause by favoring Islam; and deprives township residents of procedural due process.  Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Appeals Court Refuses To Order Recusal of Fundamentalist Christian Judge

In Ex parte Tiara Brooke Lycans, (AL App., July 28, 2017), an Alabama appellate court refused to issue a writ of mandamus ordering a trial judge who also serves as a preacher of a fundamentalist Christian church to recuse himself in a divorce action in which the wife, a lesbian, feared bias in the judge's custody ruling.  The court said in part:

Judge Bell's expressed belief that homosexual relationships and marriage are contrary to God's law, ... that God's law takes precedence over man-made law, and his placing paramount importance on the moral environment in which a child will live ... would tend to indicate to a reasonable person that a reasonable basis for questioning Judge Bell's impartiality in the divorce action exists; however, the standard is not whether there are some facts that would tend to indicate ... a reasonable basis.... Rather, the issue is "whether a reasonable person knowing everything that [Judge Bell] knows would have a "reasonable basis for questioning [Judge Bell's] impartiality."...  Judge Bell, in his pendente lite custody order ... granted the mother and the father joint physical custody of the child, with custody alternating weekly, and ... [he] has granted two other lesbian mothers and the fathers of their children joint physical custody.... [A] reasonable person who knows everything that Judge Bell knows would not have a reasonable basis for questioning Judge Bell's impartiality....

Christian Post reports on the decision.

Public Accommodation Law Does Not Apply To Photographer Without Business Store Front

Earlier this year a Madison, Wisconsin creative photographer, Amy Lynn, filed suit in Wisconsin state court challenging local and state public accommodation provisions that impeded her ability to rely on her Christian religious beliefs in her client selection. (See prior posting.)  Now, according to an ADF press release, at an August 1 hearing the court announced that it will issue an order declaring that the local and state public accommodation laws do not apply to individuals like Lynn who do not have a physical store front as part of their business.  The court said that the city and state agree that the public accommodation laws do not apply in such cases.

Good News Clubs Win Preliminary Injunction

In Child Evangelism Fellowship of Indiana, Inc. v. Indiana Metropolitan School District of  Pike Township, (SD IN, Aug. 1, 2017), an Indiana federal district court granted a preliminary injunction to Child Evangelism Fellowship preventing the school district from charging CEF a fee for using school facilities for the Good New Club meetings until the district develops an acceptable policy as to which groups must pay for use of school facilities.  The school district currently has a policy allowing some groups, such as the Boy Scouts, to "partner" with the schools and use facilities free of charge, while others, like CEF, are charged a fee.  The court held that the school district could charge fees to some groups and not others if the groups were classified in a viewpoint-neutral way.  Here however, "the District has given itself unbridled discretion to determine which outside groups pay fees to use its facilities and, indeed, which outside groups are permitted to use its facilities at all...." The court held:

This type of unbridled discretion and vague, unwritten “partner” policy violates the First Amendment.

Liberty Counsel issued a press release announcing the decision.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Dermody v. Presbyterin Church (U.S.A.),  (KY App., July 28, 2017), a Kentucky appellate court applied the ecclesiastical abstention doctrine to dismiss a defamation suit brought by Roger Dermody, the minister who had been employed to oversee the mission work of Presbyterian Church (USA).  Dermody contended that the Church repeatedly falsely accused him of unethical conduct.  An audit committee investigation had found that Dermody had failed to adequately supervise three employees who created a separate corporation to carry out church mission work free of budget cuts and leadership changes. The court said:

We have carefully examined the issue and have determined we cannot provide Dermody the relief he seeks without excessive government entanglement into an ecclesiastical controversy-- that controversy is the disagreement between a minister and his church about what constitutes unethical conduct by one of that church's ministers.

Judge Combs concurred, but said:

... I write separately to express my concern about the disregard of Dermody's reputation demonstrated by the conduct of the Presbyterian Church.... 

The generalized announcement that he was dismissed due to "ethical violations" has clearly cast a shadow over his name.... Dermody now bears the inevitable burden of re-establishing a good name that was needlessly sullied by the church's failure to report his true shortcoming: that of being a poor manager rather than a corrupt or fallen cleric.

Becket issued a press release announcing the decision.

White House Meets With Evangelical Leaders

Christian Post reports that last week the White House Office of Public Liaison held three separate 2-hour listening sessions with almost 100 evangelical Christian leaders. The sessions involved briefings from the Administration and a chance for religious leaders to express their views on various issues.

State Tax Deduction Available To Father Who Objected To Social Security Numbers For His Children

In Larsen v. Indiana Department of State Revenue, (IN Tx. Ct., July 31, 2017), the Indiana Tax Court held that a taxpayer who had religious objections to obtaining social security numbers for his children could still take dependency deductions for them.  Because federal tax authorities allowed alternative documentation for federal tax purposes, that suffices for state tax purposes as well.  The state tax statute merely requires that the dependency allowance was allowed by the IRS, even though the state tax form calls for more. Indiana Lawyer reports on the decision.

Cert. Petition Filed In School Board Prayer Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in American Humanist Association v. Birdville Independent School District, (filed 7/31/2017).  In the case (sub. nom. American Humanist Association v. McCarty) the U.S. 5th Circuit Court of Appeals upheld a school board's practice of opening its meetings with presentations from students, which often involve a prayer.  The 5th Circuit held that this should be covered by the legislative prayer cases, not the decisions regarding school prayer. (See prior posting.)  the American Humanist Association issued a press release announcing the filing of the petition for review.

Recent Articles of Interest

From SSRN:

• Yitshak Cohen, Recognition or Non-Recognition of Foreign Civil Marriages in Israel, (Yearbook of Private International Law, Volume 18 (2016/2017), pp. 321-340).
• Stijn Smet, Conscientious Objection to Same-Sex Marriages: Beyond the Limits of Toleration, (Author's Original Version of an article published by Brill in Religion & Human Rights (2016)).
• Christopher C. Lund, The Propriety of Religious Exemptions: A Response to Sager, (St. Louis University Law Journal, Vol. 60, p. 601, 2016).
• John D. Inazu, Peyote and Ghouls in the Night: Justice Scalia's Religion Clause Minimalism, (First Amendment Law Review, Vol. 15, p. 239, 2017).
• Gerard V. Bradley, 'And What Do You Say I Am?': The Meaning of the Kentucky Display, (Engage Volume 6, Issue 2 (2017)).
• Mark A, Drumbl, Histories of the Jewish 'Collaborator': Exile, Not Guilt, (July 25, 2017).
• Stephen Rushin & Jenny E. Carroll, Bathroom Laws As Status Crimes, (Fordham Law Review, Vol. 86, No. 1, 2017).
• Achsania Hendratmi & Mega Ayu Widayanti, Business Model in Islamic Perspective: Practising of Baitul Maal Wattamwil (BMT) UGT Sidogiri East Java Indonesia, (Journal of Management and Marketing Review, Vol. 2(1), p. 43-52, 2017).

From elsewhere:

• J. A. Cantone & R. L. Wiener, Religion At Work: Evaluating Hostile Work Environment Religious Discrimination Claims, [Absract], Psychology, Public Policy, and Law, 23(3), 351-366 (2017).
• J. Michael Martin, Should the Government Be In the Business of Taxing Churches, 29 Regent University Law Review 309 (2017).

Recent Prisoner Free Exercise Cases

In Ware v. Louisiana Department of Corrections, (5th Cir., July 28, 2017), the 5th Circuit held that prison grooming restrictions which prevent a Rastafarian inmate from wearing dreadlocks violate RLUIPA.

In Johnson v. Roskosci, 2017 U.S. Dist. LEXIS 116243 (MD PA, July 24, 2017), a Pennsylvania federal district court allowed an inmate to move ahead with his complaint that his religious tribal cultural beads were confiscated as contraband.

In Evans v. Brown, 2017 U.S. Dist. LEXIS 117108 (ND CA, July 26, 2017), a California federal district court allowed a Muslim inmate to move ahead with his complaint that he has not been allowed to participate in the Ramadan meal program.

In Muhammad v. Ponce, 2017 U.S. Dist. LEXIS 117275 (CD CA, July 26, 2017), a California federal district court dismissed with leave to amend a Nation of Islam inmate's complaint seeking an injunction that would allow him to observe Saviour's Day each year with a commemorative fast followed by a ceremonial meal.

In Bailey v. Batista, 2017 U.S. Dist. LEXIS 118035 (D MT, July 27, 2017), a Montana federal district court dismissed an inmate's complaint that he was denied vegetarian meals.

Further Evidence Needed To Rule On Ministerial Exception Defense

In Stabler v. Congregation Emanu-El of the City of New York, (SD NY, July 28, 2017), a New York federal district court refused to dismiss a suit alleging gender, age and disability discrimination brought by the Librarian of a New York synagogue who says that she was subjected to a hostile work environment, unlawful discrimination, harassment, and retaliation.  Defendants asserted the "ministerial exception" doctrine as a defense. The court held, however, that development of a further factual record is necessary to determine whether plaintiff performed sufficient religious functions to be considered a ministerial employee.

Trinity Lutheran Decision Does Not Apply to Neutral Ban on Funds to Private Schools

As reported by the Detroit Free Press, a Michigan state Court of Claims judge held this week that the U.S. Supreme Court's Trinity Lutheran decision is not a basis for lifting a preliminary injunction issued earlier this month barring payment of $2.5 million the legislature had allocated to private schools to cover the cost of complying with state mandates. That injunction was based on a Michigan state constitutional provision that bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school".  In Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI Ct. Cl., July 25, 2017), the court said in part:

... the Court concludes at this juncture that the constitutional provision at issue in this case, Article 8, § 2 of the Michigan Constitution, can be understood as falling within the category of neutral and generally applicable laws, rather than n provision that singles out the religious for disfavored treatment....  [T]his Court is disinclined to extend the Trinity Lutheran decision to a case that plainly does not involve express discrimination.

DOJ, EEOC File Opposing Briefs On Title VII and LGBT Discrimination

On Wednesday, the Department of Justice filed an amicus brief (full text) with the U.S. Second Circuit Court of Appeals in the court's en banc rehearing in Zarda v. Altitude Express, Inc.  In the case the Justice Department argued that "Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination."  That position directly contradicts the position taken by the EEOC in an amicus brief (full text) filed last month in the same case.  The EEOC argued that sexual orientation discrimination claims "fall squarely within Title VII’s prohibition against discrimination on the basis of sex." BuzzFeed reports on the Justice Department's brief.

Gov. Sam Brownback Picked As Ambassador For International Religious Freedom

The White House announced on Wednesday that President Trump will nominate Kansas Governor Samuel Brownback to be Ambassador at Large for International Religious Freedom. Before becoming governor, Brownback served for 15 years as U.S. senator where he was a key sponsor of the International Religious Freedom Act of 1998.  Reactions to Brownback's nomination varied. In a press release, the ACLU said in part:

... throughout his tumultuous tenure, Gov. Brownback worked tirelessly to erode the protections that the First Amendment affords for the separation of church and state.  More troubling, Gov. Brownback has been one of the nation's leading proponents of the notion that people, businesses, and even governments should be able to discriminate against others because of their own religious beliefs.

On the other hand, Liberty Counsel's press release applauded the nomination, saying in part:

Innocent people around the world are imprisoned, tortured, and persecuted for their faith. Christians and religious minorities are suffering more persecution than at any time in history. Gov. Brownback has proven that he will fight for religious freedom and will do an excellent job defending this sacred freedom around the world.

New York Times reported on the President's choice.

Court Interprets Vaccination Provision In Custody Decree

In In Re the Paternity of: G.G.B.W., (IN App., July 26, 2017), an Indiana appeals court held that the mother of a minor child should be held in contempt of a custody decree when she refused for religious reasons to have the child vaccinated.  A decree consented to by the mother and father of the child provided:

If the child attends a school that requires vaccinations for enrollment, and the child will be denied enrollment unless she receives the vaccinations, then the child will be given the required vaccinations for enrollment.

The court held that this requires the child be vaccinated upon enrollment in a school that requires its students to be vaccinated, even when a religious exemption from the vaccination requirement was available under Indiana statutes, saying:

If the parties intended the religious objection exemption to apply, they most likely would not have included the vaccination provision in the agreement at all, because a religious objection would always trump a school’s vaccination requirement and the provision would be meaningless.

The father was particularly concerned because of the danger that would be posed to his twin infant children if they were around the older child who was not vaccinated. Indiana Lawyer reports on the decision.

Catholic School Teacher Stripped of Tenure May Sue

In Mis v. Fairfield College Preparatory School, 2017 Conn. Super. LEXIS 3741 (CT Super., June 20, 2017), a Connecticut trial court refused to dismiss a suit by a tenured teacher at a Jesuit prep school whose employment was terminated by the president of the school. The president insisted that teacher Jason Mis engaged in "moral misconduct" when he took an unauthorized ride in a golf cart at a country club during a fundraising fashion show for the school.  Mis requested a committee hearing on his dismissal, as provided for in the school's handbook.  The hearing committee concluded that Mis had not engaged in moral misconduct, and that termination of his tenure was not supported.  Nevertheless the school terminated Mis, who then sued for breach of contract and defamation.  The court rejected the school's attempt to raise the ministerial exception as a bar to jurisdiction.  It went on to hold that the suit may be adjudicated using neutral principles of law without deciding between competing definitions of moral misconduct.

Trump Administration Reverses Policy Allowing Transgender Individuals To Serve In Military

Last year, Obama Administration Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military was being lifted. (See prior posting.) Today, President Trump in a series of three Tweets (1, 2, 3) announced a reversal of that policy, saying:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.

EEOC Files Two Religious Discrimination Suits

Last week, the EEOC filed two religious discrimination cases.  In Michigan, it filed suit against a Tim Horton's franchise for refusing to accommodate an employee who for religious reasons wanted to wear a skirt instead of the pants that are a standard part of the company's uniform. According to the EEOC, the Romulus, Michigan Tim Horton's refused to accept the explanation in a letter from the employee's  Pentecostal Apostolic minister, and fired the employee.

In Maryland, the EEOC filed suit against a security services firm because of its treatment of Muslim security guard Kelvin Davis.  According to an EEOC press release, when Davis complained to management about a racial slur directed at him by his supervisor, the company retaliated against him, among other ways, by revoking the prior accommodation it had granted to allow Davis to wear a beard. Ultimately intolerable working conditions led Davis to resign.

KFC Franchisee Sues Over Right To Sell Halal Chicken

In Illinois, the owner of eight Chicago-area Kentucky Fried Chicken franchises sued the franchisor, KFC, Inc. in federal court after it attempted to enforce a provision in the franchise agreement that effectively would destroy the ability of the 8 stores to sell halal chicken.  In Lokhandwala v. KFC Corp., (ND IL, filed 7/24/2017), the complaint (full text) alleged that in 2016 the company for the first time claimed that it had a long-standing policy of prohibiting religious claims about Kentucky Fried Chicken products.  The policy was aimed at preventing lawsuits and customer confusion.  The Halal Food Disclosure Requirements of Illinois law require sellers of halal food to post a disclosure statement identifying the distributor and slaughter facility. Plaintiff alleges contract law claims, as well as claims under the Illinois Franchise Disclosure Act, the Illinois Consumer Fraud and Deceptive Trade Practices Act. Courthouse News Service reports on the lawsuit.

Injunction Extended To Protect Iraqi Nationals From Immediate Deportation

In Hamama v. Adducci, (ED MI, July 24, 2017), a Michigan federal district court, in a 35-page opinion, issued a new preliminary injunction-- extending the one issued earlier this month-- preventing some 1444 Iraqi nationals with deportation orders from being removed while they attempt to convince immigration courts that their return will subject them to persecution, torture and possible death.  The Iraqis involved are Chaldean Christians, Kurds, and Sunni and Shiite Muslims.  The court said in part:

... all Petitioners will be targeted for torture or death based solely on their association with America.... Further, the perpetrators will not be limited to just ISIS, whose fortunes and influence may wax and wane with time. The record demonstrates that other Sunni groups, Shi’a militias backed by Iran, as well as Iraq’s own internal security forces, harbor  prejudice towards those affiliated with America, which will manifest itself in the form of torture and extrajudicial killings.... All Petitioners are also at risk due to the media coverage of their criminal records.... And it appears that most Petitioners are religious minorities who will face persecution at the hands of ISIS, other sectarian militias, or Iraq’s own forces.

Detroit Free Press reports on the decision.

Canadian Court Convicts 2 FLDS Leaders of Polygamy

In the Canadian province of British Columbia yesterday, a trial court found two former bishops of the FLDS Church guilty of polygamy.   The two, who were part of the FLDS colony in Bountiful, B.C., married multiple women in so-called celestial marriages.  Canadian Press reports that James Oler who was married to five women, and Winston Blackmore who was married to 25 women in celestial marriages, were convicted after an earlier 12-day. Blackmore's lawyer plans to appeal on constitutional grounds. (See prior related posting.)

Recent Prisoner Free Exercise Cases

In Barnes v. Annucci, 2017 U.S. Dist. LEXIS 110564 (ND NY, July 14, 2017), a New York federal magistrate judge recommended that a Nation of Islam inmate be allowed to move ahead with his complaint that during a cell search, authorities confiscated and discarded three of his kufis.

In Oppenheimer v State of New York, 2017 N.Y. App. Div. LEXIS 5709 (NY App, July 20, 2017), a New York state appeals court held that a Muslim inmate's free exercise claim growing out of a pat frisk by a female corrections officer cannot be asserted in the state Court of Claims.

In Potts v. Holt, 2017 U.S. Dist. LEXIS 113250 (MD PA, July 19, 2017), a Pennsylvania federal magistrate judge recommended dismissing a suit by an inmate complaining about a 4-day interruption of religious meals while prison officials were dealing with a food poisoning outbreak.

In Alster v. Fischer, 2017 U.S. Dist. LEXIS 113348 (W NY, July 20, 2017), a New York federal district court dismissed some claims by a Jewish inmate for failure to exhaust administrative remedies and on other grounds, but permitted him to move ahead with claims of denial of communal celebrations for Sabbaths and holy days; his exclusion from Jewish group events; and lack of Jewish worship space.

In Kindred v. Bell, 2017 U.S. Dist. LEXIS 114195 (ED CA, July 20, 2017), a California federal magistrate judge recommended denying a preliminary injunction to a Native American civil detainee who complained about failure to deliver to him a package containing religious items and about confiscation of a bolo tie.

Recent Articles of Interest

From SSRN:

• Yishai Blank, In Search of the Secular, (Institutionalizing Rights and Religion: Competing Supremacies 126-144 (L. Batnitzky & H. Dagan eds., Cambridge University Press) (2017)).
• Howard Kislowicz, Business Corporations as Religious Freedom Claimants in Canada, (June 16, 2017).
• Michelle Biddulph, We Don't Need No (Catholic) Education — But Why Can't It Be Saved by Section 1? A Comment on Good Spirit School Division No. 204, (Forthcoming, Saskatchewan Law Review (2017)).
• JoAnne Sweeny, Breaking Through Gridlock to Protect Human Rights: The Case for a Congressional Human Rights Committee, (54 S.D. L. Rev. 21 (2017)).
• Syuhaida Idha Abd Rahim, Mohd Asmadi Yakob, Siti Khurshiah Mohd Mansor, & Rukiah Mohamad, Talaqqi Method in Teaching and Learning Islamic Education at Pondok Institutions, (Global Journal of Business and Social Science Review, Vol. 4 (3) 2016. 68-73).
• Laila Refiana Said, Siti Aliyati Albushairi &Gusti Rina Fariany, The Competitiveness Creation Strategy of Islamic Banking, (Global Journal of Business & Social Science Review, Vol. 5(2) 2017. 29-34).
• Javier Martin Reyes, Ni si, ni no, sino todo lo contrario: El Tribunal Electoral, la Iglesia católica y la imposible nulidad de la elección de Gobernador en Aguascalientes (Neither Yes nor No, but the Opposite: The Election Court, the Catholic Church, and the Impossible Nullification of the Gubernatorial Race in Aguascalientes), (February 23, 2017).

From SmartCILP:

• L. Darnell Weeden, Marriage Equality Laws Are a Threat to Religious Liberty, 41 Southern Illinois University Law Journal 211-236 (2017).
• Stephen L. Carter, Scalia, J., Dissenting: A Fragment on Religion, 126 Yale Law Journal 1612-1628 (2017).
• Corri Zoli, The "God Gap" In International Affairs: Missing Cross-Cultural Conversations in International Humanitarian Law and Islamic Jurisprudence, 28 Florida Journal of International Law 273-328 (2016).
• John W. Teeter Jr., Of Blood and the Buddha: A Nichiren Primer on Counseling Clients, [Abstract], 28 Florida Journal of International Law 343-352 (2016).

Ark Encounter Land Transfer Jeopardizes Tax Incentives

WHAS reported Saturday that Ark Encounter theme park may not get the $18 million in sales tax rebate incentives previously promised to it because the land on which the theme park sits has been sold for a nominal amount to a non-profit entity owned by the theme park's founder. The sale for $10 of the theme park land to Ken Ham's Crosswater Canyon-- a breach of contract-- means that Grant County, Kentucky where Ark Encounter is located will lose $700,000 in expected revenue from Safety Assessment fees as well as property taxes, even though the theme park has cost the county $715,000 for extra police and fire personnel. The Safety Assessments do not apply to non-profits. Officials are hopeful that negotiations will resolve the dispute.

UPDATE: According to Cincinnati.com, in  order to preserve its tax incentive, Ark Encounter on July 24 sold the theme park property back to its for-profit entity.

Plaintiffs Awarded Attorneys' Fees In Suit Against County Clerk Kim Davis

In Miller v. Davis, (ED KY, July 21, 2017) a Kentucky federal district court awarded $224,703 in attorney’s fees and costs to plaintiffs who previously obtained a preliminary injunction against Rowan County, Kentucky Clerk Kim Davis.  Davis, citing her religious beliefs, stopped issuing marriage licenses entirely in order to avoid issuing licenses to same-sex couples.  The court yesterday held that plaintiffs were entitled to attorneys' fees because they were the “prevailing party” --they obtained a preliminary injunction that granted the relief they sought. The ultimate dismissal of the case after a change in the law rendered it moot did not change this conclusion.  The court, in a 50-page opinion, said in part:

In this case, the Plaintiffs “prevailed by every measure of victory.” The relief Plaintiffs obtained—the ability to secure marriage licenses and marry—was “preliminary” in name only. It is not the “fleeting” success that fails to establish prevailing-party status.  After the Court obtained compliance with the Preliminary Injunction Orders, Plaintiffs received marriage licenses. And once the plaintiff-couples received their marriage licenses, their rights were not subject to revocation….

... Couples continued to receive marriage licenses after the Kentucky General Assembly amended the law – albeit, on a form Davis felt more comfortable with. Therefore, Plaintiffs’ preliminary-injunction success materially altered their legal relationship with Davis, and that court-ordered change was enduring and irrevocable. Accordingly, the Court concludes that the Plaintiffs “prevailed” within the meaning of § 1988 and are entitled to attorneys’ fees.

The court also held that the state of Kentucky, not Rowan County, is liable for the attorneys’ fees. AP reporting on the decision says Davis plans to appeal, but the state of Kentucky has not yet decided whether it will appeal the ruling. [Thanks to Tom Rutledge for the lead.]

Constitutionality Of No-Fly List Upheld

In Mohamed v. Holder, (ED VA, July 20, 2017), a Virginia federal district court upheld the constitutionality of the government's No-Fly List in a challenge by a Muslim American citizen originally from Somalia.  One of plaintiff's challenges implicated religious freedom rights. The court said in part:

He argues that many First Amendment freedoms, such as the free exercise of religion, cannot be fully enjoyed without recognizing the right to travel internationally, such as by traveling to Mecca to fulfill the Islamic duty of hajj....  

There is much to warrant extending the fundamental right to travel or movement to include international travel. As Plaintiff correctly observes, the right to international travel is recognized by international agreements to which the United States is a party, and in today’s world, restricting a person’s right to international travel can, in some circumstances, have as profound an adverse effect on a person’s ability to exercise other liberty interests as a restriction on the right to interstate travel. .... 

Nevertheless, the United States also has a long history of judicially sanctioned restrictions on citizens’ international travel in the interests of foreign affairs and national security that would never have been countenanced with respect to interstate travel.... Moreover, the Supreme Court has strongly implied, though it has not explicitly stated, that there is no fundamental right to international travel.

Church Youth Group Covered By Megan's Law

In State v. S.B., (NJ Sup. Ct., July 20, 2017), the New Jersey Supreme Court held that a youth ministry associated with a church is a "youth serving organization" under Megan's Law. That law prohibits sex offenders whose victims were minors from participating in any way in these youth organizations.  The court emphasized it was deciding a question of statutory interpretation and that no constitutional issue was raised by the parties.  In the case, the defendant whose sexual assault convictions took place in 1991 was a volunteer youth leader, counselor, mentor, and chaperone for children ages 12- 17 in the church's No Limits Youth Ministry. NJ.com reports on the decision.

Court Enjoins Illinois Law Requiring Referrals Out For Abortions

In National Institute of Family Life Advocates v. Rauner, (ND IL, July 19, 2017), an Illinois federal district court granted a preliminary injunction to plaintiffs, a group of pro-life health care facilities and medical personnel, who object to Illinois SB 1564.  The statute, as a condition of immunity from suit for not performing conscience-infringing health care services, requires objecting personnel to refer the patient elsewhere for the services.  The court, citing other free-expression cases, concluded:

...the amended act under review in this case applies only to health care providers with conscience-based objections to certain legal treatment options such as abortion. Therefore, the court finds that plaintiffs have demonstrated a likelihood of showing that the amended act discriminates against health care providers that are of the point of view that abortion is wrong by compelling only them to speak a message that, from their viewpoint, is abhorrent.

The court issued a preliminary injunction barring enforcement of the statute

to the extent that enforcement would penalize health care facilities, health care personnel, or physicians who object to providing information about health care providers who may offer abortion or who object to describing abortion as a beneficial treatment option.

Christian Post reports on the decision.

Catholic Order Sues To Force Rerouting of Pipeline

A religious Order of Catholic women last week filed suit in a Pennsylvania federal district court contending that a decision of the Federal Energy Regulatory Commission violates the Religious Freedom Restoration Act. The complaint (full text) in Adorers of the Blood of Christ v. Federal Energy Regulator Commission, (ED PA, filed 7/14/2017), contends that FERC's approval of the Atlantic Sunrise Pipeline route running through the religious Order's property, and giving Transcontinental Pipeline Company the power to take the land by eminent domain, substantially burdens the Order's religious belief that it must protect and preserve the land it owns. The suit contends that because FERC could approve an alternative route that goes around the property owned by the Catholic Order, it has not used the least restrictive means to achieve its goal. Adorers announced the lawsuit in a blog post.

Activist's Suit Argues Gay Pride Flags Are Religious Symbols

The San Diego Union Tribune reported yesterday that anti-gay marriage activist Chris Sevier has filed suit against four members of Congress seeking to force them to remove rainbow flags they have in the hallways outside their Congressional offices.  According to the Union Tribune:

Sevier’s 38-page complaint asks the federal District Court in the District of Columbia to determine that “‘homosexuality’ and other forms of self-asserted sex-based identity narratives are a ‘religion,’” and that the colorful banners are a religious symbol for the “homosexual denomination.” ...

Sevier also asked the court to overturn Supreme Court rulings that ended a prohibition against sodomy and federal policies that only recognized opposite-sex marriages, as well as Obergefell V. Hodges, the 2015 ruling that found that same-sex couples have a fundamental right to marry.

Further, he said the members who displayed the flag should be removed from office.

Sevier has previously lost suits, aimed at discrediting same-sex marriage, in which he challenged state refusals to allow him to marry his laptop. (See prior posting.)

Court Dismisses Husband's Suit Over Pastor's Affair With Wife

In Laidlaw v. Converge Midatlantic, 2017 Phila. Ct. Com. Pl. LEXIS 203 (PA Com. Pl., July 19, 2017), a Pennsylvania trial court dismissed a suit brought by a husband who is seeking damages for a sexual affair between his wife and the pastor of the couple's church.  In prior years the pastor had furnished marriage counseling to the couple.  While the suit was framed as claims for negligence, infliction of emotional distress, fraud and defamation, the court held that these are in reality "heart balm" torts which were eliminated by case law and statute in Pennsylvania decades ago.  The court added:

Even if Appellant's claims were not barred as obsolete heart balm torts, the First Amendment to the United States Constitution requires this Court to dismiss them because they would constitute impermissible state intrusion upon religion. Appellant's claims against his church and pastor for the affair are wholly based in religious doctrine, perceived social pressures from his religious community, and his own faith-his personal faith in his pastor and in his church. Therefore, the Court would be forced to interpret and evaluate church canons, discipline, and faith to determine the merit of his claims.

Tax Court Says Omission of Cost of Donated Property Justifies Full Disallowance of Deduction

In RERI Holdings I, LLC v. Commissioner, (US TC, July 3, 2017), the United States Tax Court held that a charitable deduction for property should be disallowed in full because the taxpayer failed to include the property's cost basis on IRS Form 8283, the form for reporting Non-Cash Charitable Contributions.  The taxpayer did include the fair market value of the property, which it listed as $33 million.  The Tax Court concluded that the actual fair market value was $3.46 million. Reporting on the case, BNA Daily Report for Executives [subscription required] says that the case has caused a stir among tax lawyers because cost basis is rarely relevant and failure to include it is generally seen merely as a technical violation.  The Tax Court, however, said that listing of cost basis assists the IRS in determining whether the fair market value is overstated.

Supreme Court Rules Again On Scope of Travel Ban During Appeal

Once again the Supreme Court has found a complicated middle path in the ongoing challenge to President Trump's second Travel Ban Executive Order.  As previously reported, a Hawaii federal district court held that the government too narrowly interpreted the Supreme Court's temporary order that precludes while appeal is pending, enforcement of the ban against foreign nationals who have a bona fide relationship with a person or entity in the United States.  The government asked the Supreme Court to clarify the matter.  Today in Trump v. Hawaii, (Sup. Ct., July 19, 2017), after receiving briefs on the matter, the Supreme Court refused to stay the portion of the district court's order that allows in otherwise banned foreign nationals from 6 Muslim-majority countries if the travelers have grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, or cousins in the United States. The Supreme Court however suspended, while the government's appeal to the 9th Circuit is pending, the portion of the district court's order that would have allowed entry of refugees who have assurances of placement from a resettlement agency, as well as those entering under the Lautenberg Program.  Justices Thomas, Alito and Gorsuch said they would have stayed the entire district court order.  SCOTUSblog reports on the Supreme Court's action.

Pence Speaks To Christians United For Israel

On Monday, Vice President Mike Pence delivered a nearly 25-minute address at the Christians United for Israel Washington Summit.  His remarks (full text) included extensive references to the Trump Administration's support for Israel and to Pence's own religious beliefs.  Here are a few excerpts:

Now as the Good Book says: If you owe debts, pay debts.  If honor, then honor.  If respect, then respect.  And I’m really here on the President’s behalf and on our entire team’s behalf to pay a debt of gratitude to all of you who helped elect a President who is fighting every single day to defend faith, restore freedom, and strengthen America’s unbreakable bond with our most cherished ally, Israel....

My friends, to look at Israel is to see that the God of Abraham, Isaac, and Jacob keeps his promises, keeps the promises He makes to His people and to each one of us.

Ezekiel prophesized:  “Behold, I will cause breath to enter into you, and ye shall live.”  And the State of Israel and her people bear witness to God’s faithfulness, as well as their own....

For my part, like all of you, my passion for Israel springs from my Christian faith.  The songs of the land and the people of Israel were the anthems of my youth.  As for me and my house, we pray for the peace of Jerusalem and all who call her home.  It’s really the greatest privilege of my life to serve as Vice President to a President who cares so deeply for our most cherished ally.

Russian Court Labels Novel By German Rabbi As "Extremist" Literature

According to JTA, on Monday a Russian court in the city of Sochi classified as "extremist" literature a novel written by a prominent 19th century German rabbi, Marcus Lehmann.  The novel set in Medieval Europe and titled Forcibly Baptized traces the protagonist's determination to maintain his Jewish faith in the face of outside pressures to renounce it.  The Sochi court's decision added the book to the federal list of banned extremist materials compiled by Russia's Ministry of Justice.  Rabbi Boruch Gorin, a prominent aide to Russia's Chief Rabbi strongly denounced the action of the court, saying that it is attempting to limit the growth of Jewish spiritual life.

German Judge Says Litigant May Not Wear Hijab In Court

Daily Sabah reported yesterday that in the German state of Brandenburg, a family court judge has informed a Muslim woman who is suing her husband for divorce that she cannot appear in court wearing a headscarf.  The judge sent a judicial letter to the woman's attorney explaining: "Religiously motivated statements such as headscarves are not allowed in the courtroom and during a hearing."  The Muslim woman bringing the divorce action was originally a refugee from Syria. An appeal has been filed, delaying the divorce hearing originally scheduled for July 27.

USCIRF Issues Report On Women's Rights and Religious Freedom

The U.S. Commission on International Religious Freedom yesterday issued a new report titled Women and Religious Freedom: Synergies and Opportunities.  Here is the "Overview" section of the 14-page report:

Observing the synergies between FORB [Freedom of Religion or Belief] and women’s equality has not been made particularly straightforward by the architecture of international human rights law. The human rights sources that address FORB and women’s rights to equality are distinct, and emerged from the lobbying of separate constituencies.

This textually distinct basis is compounded by the thrust of the research and advocacy in women’s rights, which strongly highlights that violations to women’s rights are carried out in the name of religion, or at least that violations to women’s rights are excused or postponed due to the intransigence of religious tradition and culture, whether perpetuated by state or non-state actors or a combination thereof. This serves to exacerbate the (mis)perception of a necessary and inevitable clash between women’s rights to equality and FORB.

The juxtaposition of these two allegedly conflicting rights is conceptually untenable and counterproductive.  It violates the universality of human rights in and of itself, since unless there is a holistic approach to human rights, its “indivisibility” and “interdependence” is denied. Furthermore, it fails to provide full redress to all, since it forces female claimants to “choose” to advance their right to either equality or FORB.

The purpose of this paper is to seek to identify synergies as well as complexities between FORB and the right to women’s equality through the analysis of various international human rights law documents impacting this topic.

Russian Supreme Court Appeals Panel Affirms Ban on Jehovah's Witness Activity

Tass and BBC News reported yesterday that the appellate panel of the Russian Supreme Court has rejected an appeal of an April 2017 finding by a single judge of the Supreme Court that the Jehovah's Witness national headquarters in St. Petersburg and its 395 local affiliates should be classified as "extremist" organizations. (See prior posting.) The presiding judge yesterday held:

The ruling passed by the Supreme Court of the Russian Federation on April 20 shall remain unchanged and the appeal shall not be entertained.

This affirms the ban on all Jehovah's Witness activity and the order that the organizations' property be seized by the state.  Jehovah's Witness respondents plan an appeal to the European Court of Human Rights.

Suit Challenges Hawaii's Notice Mandate For Pro-Life Pregnancy Centers

A suit was filed last week in Hawaii federal district court challenging Hawaii's SB 501 enacted earlier this year that requires "limited service pregnancy centers" to disseminate on-site to patients a notice that says:

Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women. To apply online for medical insurance coverage, that will cover the full range of family planning and prenatal care services, go to mybenefits.hawaii.gov. Only ultrasounds performed by qualified healthcare professionals and read by licensed clinicians should be considered medically accurate.

The complaint (full text) in Calvary Chapel Pearl Harbor v. Chin, (D HI, filed 7/12/2017), alleges in part:

Plaintiffs are a non-profit, pro-life, Christian church operating a pregnancy center known as A Place for Women ..., and a national non-profit pro-life membership organization with 5 affiliates in Hawaii. Plaintiffs seek to provide help and pro-life information to women in unplanned pregnancies so that they will be supported in choosing to give birth....

The Act, however, imposes government compelled speech upon the Plaintiff pregnancy centers ... in ways that undermine the centers’ messages.

The complaint contends that the law infringes free speech and free exercise of religion, is unconstitutionally vague and violates federal statutory law that protects health care entities from being required to refer patients for abortions. Christian Times reports on the lawsuit.

British Survey of Anti-Semitic Crime Finds Overall Increase For 2016, But Fewer Violent Crimes

As reported by JTA, Britain's non-profit organization Campaign Against Antisemitism yesterday released its National Antisemitic Crime Audit-- 2016 in Review.  The report found 1,078 Anti-Semitic crimes in 2015, an increase of 14.9% from the prior year.  105 of these were violent crimes. Violent anti-Semitic crime though fell by 44.7% from 2015.  According to the report:

Ever since crime targeting British Jews began to surge in 2014, each successive year has set a new record for antisemitic crime, and each year fewer crimes have been charged. 2016 was the worst year on record for antisemitic crime, yet instead of protecting British Jews, the authorities prosecuted merely fifteen cases of antisemitic hate crime, including one solitary violent crime.

Kansas Court Says No Appeal On Vaccination Order For Children In State Custody

In an unpublished opinion, a Kansas state appeals court appears to have held that a mother who has religious objections to vaccination has no right to appeal a trial court order that her children, who have previously been placed in temporary custody of the state, receive physician-recommended vaccinations.  In In the Interest of M.H.D., K.S.D., and O.H.D., (KA App., July 14, 2017), the court held that while the mother was given a hearing on the issue at the trial court level, the trial court order entered more than 30 days after the children's placement does not fit within the category of orders over which Kansas statutes give the Court of Appeal appellate jurisdiction.

Suit Challenges Christian-Only Ownership Rules In Chautauqua Cottage Community

A discrimination lawsuit was filed in a Michigan federal district court last week against the Bay View Association, a Lake Michigan summer community with roots in the Chautauqua Movement. The complaint (full text) in Bay View Chautauqua Inclusiveness Movement v. Bay View Association of the United Methodist Church, (WD MI, filed 7/10/2017), challenges provisions in the Association's rules that limit cottage ownership to practicing Christians.  The suit contends that this is religious discrimination that violates the U.S. and Michigan constitutions, the federal Fair Housing Act, and Michigan's Elliott-Larsen Civil Rights Act.  Petoskey (MI) News-Review reports on the lawsuit.

Recent Articles of Interest

Fom SSRN:

• Ronald J. Colombo, Religious Conceptions of Corporate Purpose, (74 Wash.& Lee L. Rev. 813 (2017)).
• Helen L. Norton, Government Speech and the War on Terror , (86 Fordham L. Rev. (2017 Forthcoming)).
• Heidi Kitrosser, Free Speech, Higher Education, and the PC Narrative, (101 Minnesota L.Rev. 1987 (2017)).
• Martin H. Redish & Matthew Fisher, Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity, (Fordham Law Review, Forthcoming).

From SmartCILP:

• Symposium: The First Amendment Post-Obergefell: The Clash of Enumerated and Unenumerated Rights. Remarks by Justice Daniel Kelly; articles by Barry W. Bussey, Travis Weber, J. Caleb Dalton, Bill Piatt. 29 Regent University Law Review 183-308 (2016-2017).

Recent Prisoner Free Exercise Cases

In In re Ohio Execution Protocol Litigation, 2017 U.S. Dist. LEXIS 107468 (SD OH, July 12, 2017), an Ohio federal magistrate judge rejected RLUIPA and free exercise challenges to the provision in Ohio's Execution Protocol that allows the warden to limit a death row inmate's last words statement if it contains language intentionally offensive to the execution witnesses. Plaintiffs claimed that this might limit them from including a prayer for atonement in their last words because witnesses might find the prayer offensive.

In Crawley v. Parsons, 2017 U.S. Dist. LEXIS 107775, (WD VA, July 12, 2017), a Virginia federal district court allowed a House of Yahweh inmate to move ahead with his claim against the prison chaplain that he was not allowed to participate in the 2015 Passover observance. His claims against other defendants for this, and his claims regarding observance of the Feast of Tabernacles were dismissed.

In Crutcher v. Bolling, 2017 U.S. Dist. LEXIS 106778, (ND AL, July 11, 2017), an Alabama federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 107832, May 18, 2017), and dismissed without prejudice an inmate's complaint that conditions of solitary confinement denied him access to church.

Quebec Tribunal Finds Discrimination When Jewish Owner Enforces Jewish Practice On Jewish Employees

In Canada, Quebec's Tribunal for Human Rights in a decision last month held that the Jewish owner of a hair salon violated the religious rights of a Jewish employee when she decided that none of the Jewish employees should work on Saturdays, the Jewish Sabbath.  Hair stylist  Richard Zilberg wanted to include Saturdays in his 6-day work week since this was the busiest day of the week, but Spa Liv Zen owner Iris Gressy prohibited it. Zilberg was fired after he revealed to a client the reason he was no longer available on Saturdays.  In Commission on Human Rights and Youth Rights v. 9220-3454 Quebec, Inc., (QCTDP, June 27, 2017), the Tribunal held that this violated Zilberg's rights under Quebec's Charter of Human Rights and Freedoms to equality in employment, freedom of conscience and religion, and dignity and respect for his private life.  According to the Tribunal:

[Zilberg] stated that the Defendants’ decision amounted to a hurtful determination of how he should practice his religion. He felt outraged that the Defendants could ... impose upon him a religious practice that violates his rights to freedom of conscience and religion.

... [H]e felt no less true to his faith because, for various personal reasons, he did not conform to the religious practice of observing the Sabbath; he in fact celebrated other important Jewish holidays with his family.

... Consequently, the interdiction to work on Saturdays imposed upon Mr. Zilberg genuinely affected him as he practiced his religion according to his own personal values.

The Tribunal awarded Zilberg $6,006 in material damages and $4,000 for the moral prejudice he suffered, and $2,500 in punitive damages. Neither Cressy nor her business contested the claims against them and neither were present at the Tribunal hearing. Canadian Press this week reported on the decision.

SCOTUS Review Sought In Florist's Refusal To Sell For Same-Sex Wedding

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arlene's Flowers, Inc. v. State of Washington, (cert. filed, 7/14/2017).  In the case, the state of Washington's Supreme Court held that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination. (See prior posting.) The petition for review asks the U.S. Supreme Court to combine this case with the Masterpiece Cake Shop case in which it has already granted review (see prior posting), or to at least hold this case until it decides Masterpiece Cake Shop. Tri-City Herald reports on the cert. petition.

Establishment Clause Challenge To Portrayal of Hinduism In California Schools May Proceed

In California Parents for the Equalization of  Educational Materials v. Torlakson, (ND CA, July 13, 2017), plaintiffs challenge the treatment of Hinduism in the Standards and the Framework for history and social science courses taught in the California public schools.  They claim discrimination against Hinduism as compared to the treatment of other religions.  A California federal district court last week held that plaintiffs had stated a claim under the Establishment Clause.  The court relied on impressions of one sixth-grader to support its conclusion that the curriculum may have favored other religions over Hinduism:

The primary message that sixth grade student received was that her teacher and classmates considered Hinduism “cruel,” “primitive and unjust,” and that Hinduism had not been treated with “fairness and dignity.” ... The student formed this impression based in large part on the Framework’s content, which emphasized that the caste system was a part of Hinduism. 

The court however dismissed plaintiffs' equal protection challenge, holding that the equal protection clause may not be used to challenge the content of school curriculum.  The court also rejected plaintiffs' claims of discrimination in the process of adopting the curriculum Framework, as well as free exercise and substantive due process challenges. Courthouse News Service reports on the decision.

Christian Refugees To U.S. Outnumber Muslim Refugees So Far In 2017

A Pew Research Center analysis released last week shows that during the first months of the Trump Administration, Christian refugees admitted to the United States outnumber Muslim refugees. This is a change from last year.  During fiscal 2016, of refugees admitted, 46% were Muslim and 44% were Christian. But from Jan. 21 until June 30 of this year, 50% are Christian (9,598), 38% are Muslim (7,250), 11% are other religions and 1% have no religious affiliation.  The difference is in part accounted for by shifts in the countries of origin of admitted refugees.  During the first months of the Trump Administration, the largest number of refugees (3,235) came from the Democratic Republic of the Congo.

2nd Circuit: Ministerial Exception Requires Dismissal of Sex Discrimination Claim By Catholic School Principal

In Fratello v. Archdiocese of New York, (2d Cir., July 14, 2017), the U.S. 2nd Circuit Court of Appeals held that the principal of a Catholic elementary school is barred by the "ministerial exception" doctrine from pursuing her claim that gender discrimination accounted for the school's refusal to renew her contract. The court said in part:

... [T]he plaintiffʹs claims are barred because she is a minister within the meaning of the exception.  Although her formal title was not inherently religious, the record reflects that, as part of her job responsibilities, she held herself out as a spiritual leader of the school and performed many religious functions to advance its religious mission.

The court noted some of the tensions inherent in the doctrine:

The irony is striking.  We rely in part on Fratelloʹs supervisorsʹ and faculty officialsʹ prior praise of her performance of her religious responsibilities as proof that she could be fired for the wrong reason or without any reason at all.... This case thus lies at the center of the tension between an employerʹs right to freedom of religion and an employeeʹs right not to be unlawfully discriminated against. The ministerial exception, as we understand it to be interpreted by the Supreme Court, resolves that tension in this case against Fratello and in favor of the Archdiocese, the Church, and the School.

New York Law Journal, reporting on the decision, says plaintiff will seek en banc review.

Attorney General Sessions Speaks At Hate Crimes Summit

On June 29, Attorney General Jeff Sessions delivered remarks (full text) at the Civil Rights Division's Hate Crimes Summit.  Sessions focused on recent hate crime arrests and convictions, saying in part:

The Department has prosecuted a number of high-profile hate crimes cases this year as we seek to bring criminals to justice.

In March ... a suspect was found and arrested in Israel for allegedly making threatening phone calls to Jewish community centers, inflicting terror across the nation.  In April, we brought federal charges against him, and our investigation into these acts as possible hate crimes continues....

Just last week, we sought and a federal grand jury returned an indictment against a man in Texas for burglary and arson of the Victoria Islamic Center.   He now faces up to 40 years in federal prison.   Earlier this month, a man in Tennessee was sentenced to over 19 years in prison for trying to recruit people to help him burn down a mosque in a small town in New York.   Also this month, the Department indicted a man from Kansas for shooting three men at a bar because he thought they were of Persian origin.... 

We have and will continue to enforce hate crime laws aggressively and appropriately where transgendered individuals are victims.  Last month, Joshua Brandon Vallum was sentenced to 49 years in prison for assaulting and murdering Mercedes Williamson.   This is the first case prosecuted under the Hate Crimes Prevention Act involving the murder of a transgender person.

I personally met with the Department’s senior leadership and the Civil Rights Division to discuss a spate of murders around the country of transgender individuals.   I have directed the Civil Rights Division to work with the United States Attorney’s Offices and the Federal Bureau of Investigation to identify ways the Department can support the state and local law enforcement authorities investigating these incidents and to determine whether federal action would be appropriate.

4th Circuit En Banc: Rowan County's Invocation Practice Violates Establishment Clause

In Lund v. Rowan County, North Carolina, (4th Cir., July 14, 2017), the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners violates the Establishment Clause. Judge Wilkinson’s 42-page majority opinion reads in part:

We conclude that the Constitution does not allow what happened in Rowan County. The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion. And because the commissioners were the exclusive prayer-givers, Rowan County’s invocation practice falls well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece. Indeed, if elected representatives invite their constituents to participate in prayers invoking a single faith for meeting upon meeting, year after year, it is difficult to imagine constitutional limits to sectarian prayer practice.

The great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation. Consistent with this principle, there is a time- honored tradition of legislative prayer that reflects the respect of each faith for other faiths and the aspiration, common to so many creeds, of finding higher meaning and deeper purpose in these fleeting moments each of us spends upon this earth. Instead of drawing on this tradition, Rowan County elevated one religion above all others and aligned itself with that faith. It need not be so. As the history of legislative invocations demonstrates, the desire of this good county for prayer at the opening of its public sessions can be realized in many ways that further both religious exercise and religious tolerance.

Judge Motz, joined by Judges Keenan and Harris, filed a concurring opinion emphasizing that the majority’s holding is consistent with Supreme Court precedent in Marsh and Town of Greece cases.

Judge Niemeyer, joined by Judge Shedd, filed a dissenting opinion arguing that the majority opinion “actively undermines the appropriate role of prayer in American civic life.”  Judge Agee also filed a dissenting opinion which was joined by Judges Niemeyer, Traxler, Shedd, and Diaz, arguing that the majority opinion is “irreconcilable” with Marsh and Town of Greece.  Charlotte Observer reports on the decision.