Pennsylvania Supreme Court Orders Release of Redacted Grand Jury Report On Clergy Sexual Abuse

In In re: Fortieth Statewide Investigating Grand Jury, (PA Sup. Ct., July 27, 2018), the Pennsylvania Supreme Court approved the public release (with certain redactions) of a 900-page grand jury report on allegations of child sexual abuse, failure to report abuse, and other acts endangering children by persons associated with 6 Pennsylvania Catholic dioceses.  The Grand Jury report, which lists over 300 clergy as predators, also covers possible obstruction of justice by Church officials, community leaders, and public officials.  However the court ordered that there be temporary redactions in the report as released to safeguard the reputations of individuals who have filed challenges to the report.  The court also called for oral argument on what due process mechanisms should be available to those individuals challenging the report's conclusions about them. According to the Philadelphia Inquirer:

The order by the seven-member high court provided a temporary victory for about two dozen current and former clergy members who have waged a furious legal fight to prevent their names from being publicly disclosed. The high court’s decision will allow them to remain unidentified for weeks, if not months, while the justices weigh their arguments.

New IRS Rules On Substantiation of Charitable Contributions

T.D. 9836, published in the July 30 Federal Register, sets out revised IRS rules for reporting and substantiation of cash and non-cash charitable contributions.  They implement provisions of the American Jobs Creation Act of 2004 and the Pension Protection Act of 2006. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Boyd v. Etchebehere, (9th Cir., July 25, 2018), the 9th Circuit affirmed the dismissal of a challenge to a California prison's Ramadan meal policy.

In McCracken v. Godert, 2018 U.S. Dist. LEXIS 121480 (ED MO, July 20, 2018), a Missouri federal magistrate judge dismissed, unless an appropriate amended complaint is filed, a Native American inmate's complaint that he is not being allowed to use ceremonial pipes, tobacco, and other ritual items.

In Thomas v. Delaney, 2018 U.S. Dist. LEXIS 122106 (ND NY, July 23, 2018), a New York federal district court dismissed some claims by a Rastafarian inmate of harassment and free exercise infringement, while allowing an amended complaint asserting 1st Amendment, harassment and RLUIPA claims to be filed.

In Allen v. Kunkel, 2018 U.S. Dist. LEXIS 122116 (D CT, July 22, 2018), a Connecticut federal district court dismissed for failure to exhaust administrative remedies a Moorish American inmate's complaints about barring his obtaining a particular book and refusing to approve his ability to purchase a fez.

In Miller v. Lucas, 2018 U.S. Dist. LEXIS 122640 (MD PA, July 20, 2018), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that on one occasion he was sent from the chapel back to his cell without being able to participate in religious services.

In Cejas v. Brown, 2018 U.S. Dist. LEXIS 122935 (SD CA, July 20, 2018), a California federal district court allowed a Buddhist inmate to move ahead with his claim that authorities denied weekly Buddhist services and the ability to practice meditation, chanting and prostration indoors. The court however denied joinder of other plaintiffs.

In Finefeuiaki v. Maui Community Correctional Center Staff, 2018 U.S. Dist. LEXIS 124678 (D HI, July 25, 2018), a Hawaii federal district court dismissed an inmate's complaint that authorities could not locate his Bible, daily bread, and religious handbook during a 5-day perioid.

In Mears v. Kauffman, 2018 U.S. Dist. LEXIS 125038 (MD PA, July 26, 2018), a Pennsylvania federal district court dismissed an inmate's complaint that after a chaplain accused him of homosexual activity, a correctional officer removed him from services and urged him not to attend services conducted by that chaplain, or not bring the other inmate with whom he allegedly has sexual contact.

In Cox v. United States, 2018 U.S. Dist. LEXIS 124412 (D MN, July 25, 2018), a Minnesota federal district court adopted a magistrate's report (2018 U.S. Dist. LEXIS 125213, June 28, 2018), and dismissed an inmate's complaint that a counselor told him to stop praying.

In Brown v. Ryles, 2018 U.S. Dist. LEXIS 125256 (ED AR, July 26, 2018), an Arkansas federal magistrate judge dismissed an inmate's complaint that he was denied the right to shave in accordance with his religion.

NYT Profiles Wealthy Hindu Holy Man With Rising Political Power In India

Today's New York Times Magazine carries a lengthy profile of Baba Ramdev, holy man and billionaire who has increasing political power in India. Here is an excerpt:

Ramdev has been a prominent voice on the Hindu right, and his tacit endorsement during the landmark 2014 campaign helped bring Prime Minister Narendra Modi to power.... Although Modi campaigned heavily on promises to reform India’s economy and fight corruption, there were frequent dog whistles to the Hindu nationalist base, some of them coordinated with Ramdev. A month before Modi’s landslide victory, a trust controlled by Ramdev released a video in which senior leaders of Modi’s party, the Bharatiya Janata Party (B.J.P.) ... appeared alongside him with a signed document setting out nine pledges. These included the protection of cows — animals held sacred in Hinduism — and a broad call for Hindu nationalist reforms of the government, the courts, cultural institutions and education....

But Ramdev is far more than a useful holy man. Even beyond his political patrons, Ramdev is the perfect messenger for a rising middle class that is hungry for religious assertion and fed up with the socialist, rationalist legacy of Jawaharlal Nehru, India’s first post-independence leader. Ramdev has led vastly popular campaigns against corruption, donning the mantle of swadeshi, or Indian economic nationalism, to cast foreign companies as neocolonial villains. In a sense, Ramdev has changed Hinduism itself. His blend of patriotic fervor, health and religious piety flows seamlessly into the harder versions of Hindu nationalism, which are often openly hostile to India’s 172 million Muslims. Although Ramdev prefers to speak of Indian solidarity, his B.J.P. allies routinely invoke an Islamic threat and rally crowds with vows to build temples on the sites of medieval mosques.

In his own way, Ramdev is India’s answer to Donald Trump, and there is much speculation that he may run for prime minister himself.

Pope Accepts Resignation of Cardinal McCarrick Amid Growing Sex Misconduct Charges

Crux reported today that at the Vatican, Pope Francis has accepted the resignation of Cardinal Theodore McCarrick from the College of Cardinals. The 88-year old cardinal's resignation comes amid growing numbers of complaints about past sexual abuse and misconduct by the now-retired Archbishop of Washington.  The Pope ordered McCarrick "to remain in a house yet to be indicated to him, for a life of prayer and penance until the accusations made against him are examined in a regular canonical trial."  In 2002, McCarrick was the leading drafter of the "Charter for the Protection of Children and Young People" which imposed new safeguards to protect minors from clergy abuse.

Another Side of the National Prayer Breakfast

The New York Times yesterday profiled a different side of the annual National Prayer Breakfast, saying that it has become a vehicle for "Washington’s corps of lobbyists and fixers" to arrange access for their clients to important government officials and other infludentials. The reports says in part:

Held every year at the Washington Hilton, the prayer breakfast festivities span several days during the first week of February, with the American president appearing at a ceremonial breakfast on Thursday. The days are packed with programming, after which guests head to private suites ... where they mingle late into the night — praying, sharing business cards and sometimes draining expensive bottles of cognac....

Some describe the gathering as similar to the World Economic Forum, except that Jesus is the organizing principle. The eclectic guest list has included the Dalai Lama, the Rev. Billy Graham, Mother Teresa, the singer Bono and the former Redskins coach Joe Gibbs, as well as the Palestinian leader Yasir Arafat and President Paul Kagame of Rwanda.

Lobbyists say the event has become even more of a coveted invitation in the Trump era, as foreign politicians scrambled to forge connections with a president who swept into office with few ties to the international community or Washington’s hierarchy of established foreign access brokers.

With its relative lack of diplomatic protocols and press coverage, the prayer breakfast setting is ideal for foreign figures who might not otherwise be able to easily get face time with top American officials, because of unsavory reputations or a lack of an official government perch, according to lobbyists who help arrange such trips....

Pence Announces New US Program To Aid Victims of Genocide and Religious Persecution

Yesterday, Vice President Mike Pence delivered a 30-minute address (full text) at the State Department's Ministerial to Advance Religious Freedom.  The Vice President called out a long list of countries for their records of religious persecution and intolerance.  He went on to say:

And it’s my privilege as Vice President to announce today that the United States of America will establish the Genocide Recovery and Persecution Response Program, effective today....

Under this new program, the State Department and the U.S. Agency for International Development will closely partner with local faith and community leaders to rapidly deliver aid to persecuted communities, beginning with Iraq.  Crucially, this support will flow directly to individuals and households most in need of help.

Atheist Firefighter Can Move Ahead With Hostile Work Environment Claim

In Queen v. City of Bowling Green, (WD KY, July 20, 2018), a Kentucky federal district court allowed an atheist firefighter to move ahead with his claim of hostile work environment based on religion. The court, analyzing his claim under the Kentucky Civil Rights Act, said in part:

Defendants argue that Queen cannot prove the religious harassment he  experienced was unwanted. Rather, Defendants contend that jokes,  pranks, and teasing are all part of the fraternal environment at the Fire Department that Queen enjoyed and participated in.  However, since the Defendants are  moving  for  summary  judgment, the Court must consider the facts in a light favorable to Queen.  According to Queen, none of the harassment he experienced was welcomed.  As he tells it, he was interrogated about his religion by coworkers and forced against his will to participate in Bible studies.  Ultimately, he claims that he was threatened and physically assaulted.  For this reason, there is enough evidence for a reasonable jury to conclude that the harassment Queen experienced was unwanted.

Friendly Atheist blog has more on the decision.

Lesbian Spouses Sue Senior Housing Community For Discrimination

A suit was filed in Missouri federal district court this week by a lesbian married couple against a senior housing community for refusing to rent to same-sex couples. The complaint (full text) in Walsh v. Friendship Village of South County, (ED MO, filed 7/25/2018), alleges that the senior housing community which is not religiously affiliated has a Cohabitation Policy that provides:

Friendship Village “will permit the cohabitation of residents within a single unit only if those residents, while residing in said unit, are related as spouses by marriage, as parent and child or as siblings,” defining “[t]he term ‘marriage’ as used in this policy means the union of one man and one woman, as marriage is understood in the Bible.”

The suit alleges violation of the Federal Fair Housing Act and Missouri's Human Rights Act. Friendly Atheist blog has more on the lawsuit.

3rd Circuit Refuses To Enjoin School's Accommodation of Transgender Students

In Doe v. Boyertown, (3d Cir., July 26, 2018), the U.S. 3d Circuit Court of Appeals in a revised panel decision refused to enjoin a Pennsylvania school district from allowing transgender students to use bathrooms and locker rooms consistent with their gender identities instead of  the sex they were assigned at birth. The court rejected privacy, Title IX and state tort claims, saying in part:

As we have already noted, we do not intend to minimize or ignore testimony suggesting that some of the appellants now avoid using the restrooms and reduce their water intake in order to reduce the number of times they need to use restrooms under the new policy. Nor do we discount the surprise the appellants reported feeling when in an intimate space with a student they understood was of the opposite biological sex. We cannot, however, equate the situation the appellants now face with the very drastic consequences that the transgender students must endure if the school were to ignore the latter’s needs and concerns. Moreover, as we have mentioned, those cisgender students who feel that they must try to limit trips to the restroom to avoid contact with transgender students can use the single-user bathrooms in the school.

Yesterday following the issuance of the revised panel decision, the full court denied an en banc rehearing in the case, with 3 judges dissenting from the denial. (Full text of order and dissent.) The dissenters argued:

The revised panel opinion rightly acknowledges that a school policy addressing transgender students’ use of bathrooms and locker rooms is a matter of high importance to Boyertown and its students. Given that public importance and the obvious sensitivity of the issues involved, one would have thought that the opinion would address only the facts at issue and then only to the extent necessary. But the panel went beyond what was necessary when it chose to address Boyertown’s tangential argument that the school district would have run afoul of Title IX had it implemented a policy that confined transgender students to use of bathrooms and locker rooms designated for their biological sex....

The Morning Call reports on the decisions.

Deal To Free American Pastor Held By Turkey Falls Through

Washington Post reported yesterday that President  Trump thought he had struck a deal with Turkey's President Recep Tayyip Erdogan at the recent NATO meeting for the release of American pastor Andrew Brunson who has been held by Turkey for two years on supposed terrorism charges:

The deal was a carom shot, personally sealed by Trump, to trade a Turkish citizen imprisoned on terrorism charges in Israel for Brunson’s release. But it apparently fell apart on Wednesday, when a Turkish court, rather than sending the pastor home, ordered that he be transferred to house arrest while his trial continues.

Thursday morning, after a rancorous phone call with Erdogan, Trump struck back. The United States “will impose large sanctions” on Turkey, he tweeted. “This innocent man of faith should be released immediately.”

6th Circuit Refuses To Reopen Asylum Claim By Egyptian Coptic Christian

In Welson v. Sessions, (6th Cir, July 26, 2018), the U.S. 6th Circuit Court of Appeals refused to reopen a petition for refugee status filed by an Egyptian Coptic Christian.  The immigration judge had held that petitioner was not
credible and had not demonstrated a well-founded fear of persecution in Egypt. The 6th Circuit said in part:

In support of his motions to reopen, Welson chiefly relies on articles describing various recent acts of terrorism perpetrated by ISIL, including: the December 2016 bombing of a Coptic cathedral in Cairo; the April 2017 bombing of two Coptic churches, both in Northern Egypt, on Palm Sunday; and a May 2017 incident in Southern Egypt where gunmen fired on vehicles carrying Coptic Christians. However, as the BIA reasoned, these articles describe events which, while indisputably terrible and tragic, are nevertheless similar to those conditions considered by the IJ at Welson’s individual hearing. Moreover, none of the additional reports and articles disturbs a key portion of the IJ’s reasoning—namely, that Welson’s family continues to live in Sohag, Egypt, unharmed, and that the Egyptian government under the leadership of President elSisi has undertaken to improve conditions for Coptic Christians. These new articles accordingly do not show that if the case were reopened Welson would likely prevail on his asylum claim.

[Thanks to Tom Rutledge for the lead.] 

3rd Circuit: Nuns Lose Pipeline Challenge On Procedural Grounds

In Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (3d Cir., July 25, 2018), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a RFRA challenge by an Order of Catholic nuns (the "Adorers") to FERC's approval of a pipeline project. The natural gas pipeline runs through land owned by the Adorers. Developers were authorized to acquire land for the pipeline by eminent domain.  According to the court:

The Adorers object to the use of their land as part of the Project, explaining that their deeply-held religious beliefs require that they care for the land in a manner that protects and preserves the Earth as God’s creation. But despite receiving notice of the proposed project, the Adorers never raised this objection before FERC.

The Natural Gas Act calls for appeals from FERC orders to be filed with the Court of Appeals. The Adorers failed to follow this procedural route. The court held:

The Adorers contend that the plain language of this judicial relief provision grants them a statutory right to assert their RFRA claim in district court. We disagree. The NGA is a detailed statute, setting forth specific provisions on the procedure by which approval and subsequent review of a pipeline project may be attained.

Lancaster Online reports on the decision.

Indonesia Sentences Student To 4 Years In Jail For Anti-Muslim Facebook Post

AFP reports that on Tuesday a court on the Indonesian island of Sumatra sentenced a 21-year old Christian university student to 4 years in jail and a fine of $70,000 (US) for a Facebook post that compared the Prophet Muhammad to a pig and said that Muhammad approved bestiality.  The student, Martinus Gulo, had been charged under Art. 28 of Indonesia's Electronic Information and Transactions law (with unrelated 2016 amendments) that outlaws spreading hatred or dissension against individuals or groups based on their race, religion or ethnicity.

Church of England Court Permits Exhumation of Atheist From Hallowed Ground

The Hertfordshire Mercury reports on an unusual decision in Britain last week by a Church of England Consistory Court.  In In re Chestnut Cemetery (No. 1) re Exhumation of Hugill, (Consist. Ct., July 18, 2018), the Court permitted the exhumation of the cremated remains of an infant buried in 1982 in a Church of England cemetery.  The infant's parents are both Atheists, and they did not know at the time of the burial that the cemetery site was hallowed ground. They discovered this in 2017 and now seek to have the remains reburied in an un-consecrated plot. The court said in part:

The starting point is the presumption that the burial of human remains in consecrated ground is permanent.... However the Court has a discretion to permit exhumation in exceptional circumstances....

On the case that has been presented to me it appears that the most important and relevant of the factors referred to above is mistake. In particular, Mrs Wilson’s evidence that she was at all material times, until on or around September 2017, unaware that Lizzie’s remains had been interred in consecrated ground by reason of her total (and understandable) lack of contact with the funeral arrangements when they were made, and her evidence that, as an Atheist, the burial in these circumstances is something she would never have agreed to if she had been informed. These facts, in my judgment, amount to a fundamental mistake as to the arrangements made for the interment of Lizzie’s remains.

Nevada Supreme Court Says Counsel Not Ineffective In Failing To Raise A Free Exercise Objection

In 2010, a Las Vegas, Nevada doctor, Harriston Lee Bass, was convicted of second degree murder for selling a controlled substance to a woman whose overdose led to her death. (Background).  Subsequently Bass filed a post-conviction petition for habeas corpus alleging ineffective assistance of counsel in his trial and appeal.  In Bass v. State of Nevada, (NV Sup. Ct., July 20, 2018), the Nevada Supreme Court found Bass' objections do not warrant granting of any relief.  The Court said in part:

Bass ... argues that trial and appellate counsel should have challenged evidence introduced in violation of his First Amendment right to the free exercise of religion. A State investigator testified about a closet in Bass's house set up like a shrine, with a photograph of Bass and a candle, that was searched when investigating the residence for evidence of Bass's mobile medical practice. Bass testified that the area was his wife's prayer room. Bass has failed to show that testimony implying that he and his wife had unspecified religious beliefs in any way infringed on his religious exercise, particularly where the record is silent as to the content of those beliefs.... Accordingly, Bass has failed to show that a First Amendment objection at trial or on appeal was not futile, and counsel were not ineffective in omitting them. The district court therefore did not err in denying this claim.

9th Circuit: School Board Invocations Violate Establishment Clause

In Freedom From Religion Foundation, Inc. v. Chino Valley Unified School District Board of Education, (9th Cir., July 25, 2018), the U.S. 9th Circuit Court of Appeals agreed with the district court that a California school board's prayer policy at board meetings violates the Establishment Clause. The court said in part:

The invocations to start the open portions of Board meetings are not within the legislative prayer tradition that allows certain types of prayer to open legislative sessions. This is not the sort of solemnizing and unifying prayer, directed at lawmakers themselves and conducted before an audience of mature adults free from coercive pressures to participate, that the legislative-prayer tradition contemplates.... Instead, these prayers typically take place before groups of schoolchildren whose attendance is not truly voluntary and whose relationship to school district officials, including the Board, is not one of full parity.....

Instead of the legislative-prayer analysis, we apply the three-pronged Establishment Clause test articulated in Lemon v. Kurtzman.... The Chino Valley Board’s prayer policy and practice fails the Lemon test and is therefore unconstitutional.

Los Angeles Times reports on the decision.

New Organization: Humanist Legal Society

In a press release last week, the American Humanist Association announced the launching of a new organization: the Humanist Legal Society:

The Humanist Legal Society’s aim is to provide a way for like-minded legal professionals—whether identifying as humanist, secular, atheist, agnostic, or something similar—to unite in advocating for principles consistent with the organization’s mission statement: the protection of civil liberties, strict separation of religion and government, legislation and public policies informed by sound scientific evidence, ethics in government and law enforcement, and respect for the diversity of individuals.

Here is a video of the organization's inaugural event. A link to the new organization's website has been added to the Religion Clause sidebar under "Advocacy Organizations." [Thanks to Bob Ritter for the lead.]

Report Released On 2016 Global Restrictions On Religion

Last week, the Pew Research Center on Religion & Public Life released its ninth annual study of global restrictions on religion. The 125-page report (full text) is titled Global Uptick In Government Restrictions on Religion in 2016.  It highlights: "Nationalist parties and organizations played an increasing role in harassment of religious minorities, especially in Europe."  According to the report:

The share of countries with “high” or “very high” levels of government restrictions – that is, laws, policies and actions by officials that restrict religious beliefs and practices – rose from 25% in 2015 to 28% in 2016. This is the largest percentage of countries to have high or very high levels of government restrictions since 2013, and falls just below the 10-year peak of 29% in 2012.

Meanwhile, the share of countries with “high” or “very high” levels of social hostilities involving religion – that is, acts of religious hostility by private individuals, organizations or groups in society – remained stable in 2016 at 27%.

State Department Hosts First-Ever Ministerial To Advance Religious Freedom

Yesterday was the first day of the U.S. State Department's 3-day Ministerial to Advance Religious Freedom.  RNS reports that U.S. Ambassador-at-Large for International Religious Freedom Sam Brownback opened the Ministerial at the State Department, urging the 350 conference participants from 80 countries to work together to advance religious freedom. The faiths represented at the State Department conference include Muslims, Jews, Christians, Buddhists, Hindus, Sikhs, Baha’is, and Yazidis.  The State Department describes the agenda of this first-ever Ministerial:

On July 24, we will equip and empower civil society organizations, including organizations working on religious freedom, to understand better how to access U.S. financial support for their efforts...

On July 25, members of civil society groups, including religious leaders and survivors of religious persecution, will convene to tell their stories, share their expertise, and ultimately unite on a path to greater religious freedom in our societies....

On July 26, government and international organization representatives will participate in plenary sessions focused on: (1) identifying global challenges to religious freedom, (2) developing innovative responses to persecution on the basis of religion, and (3) sharing new commitments to protect religious freedom for all.....

Here is the full schedule of panels. Various side events are also scheduled.

UPDATE: As reported by Blog from the Capital, the Summit ended with the Potomac Declaration and a Plan of Action. Critics contend that the Summit accomplished little.