No Preliminary Injunction Against Schools' Anti-Islamophobia Initiative

In Citizens for Quality Education San Diego v. Barrera, (SD CA, Sept. 25, 2018), a California federal district court refused to issue a preliminary injunction against an initiative undertaken by the San Diego school district to address Islamophobia and anti-Muslim bullying. The court held that plaintiffs are unlikely to succeed on the merits of their Establishment Clause and state constitutional no-aid clause claims. San Diego Union Tribune reports on the decision.

Court Rejects EEOC's "Pattern or Practice" Claims Against Meat Packer

In EEOC v. JBS USAA, LLC, (D CO, Sept. 24, 2018), a Colorado federal district court in a 95-page opinion issued after a 16-day trial dismissed the EEOC's claims that JBS Swift & Co. meat packers engaged in pattern and practice of discrimination against Muslim employees. The suit claimed that the company had refused to reasonably accommodate Muslim employees' needs during Ramadan to pray and break their fast; that employees were disciplined on the basis of religion, national origin and race; and that JBS retaliated against a group of black, Muslim, Somali employees for opposing discrimination during Ramadan. In rejecting the reasonable accommodation claim, the court said in part:

The EEOC presented numerous instances of employees given verbal or written warnings for “unauthorized breaks” that other evidence indicated may have been in relation to prayer.... But, in spite of JBS’s progressive discipline policy, there was no evidence that any such reprimanded employees were ultimately suspended or terminated as a result of such verbal or written warnings.

Therefore, lacking evidence that any employee suffered a detriment to “compensation, terms, conditions, or privileges of employment, because of such individual’s . . . religion” in relation to discipline imposed for unscheduled prayer breaks, the Court concludes that the EEOC has failed to prove its claim that JBS’s policy constituted an unlawful pattern or practice of discrimination.

The discriminatory discipline and retaliation claims were rejected on other grounds.

NOTE ON PUBLICATION SCHEDULE

RELIGION CLAUSE BLOG WILL BE ON A LIMITED AND SPORADIC PUBLICATION SCHEDULE BETWEEN SEPT. 24 AND OCT. 2.  REGULAR POSTINGS SHOULD RETURN ON OCT. 3.

Recent Prisoner Free Exercise Cases

In Wolcott v. Board of Rabbis of Northern and Southern California, (9th Cir., Sept. 20, 2018), the 9th Circuit reversed the dismissal of an inmate's claim that his possession and use of Jewish artifacts were restricted, but affirmed the dismissal of his religious conversion claim.

In Goff v. Eppinger, 2018 U.S. Dist. LEXIS 155455 (ND OH, Sept. 12, 2018), an Ohio federal district court dismissed an inmate's complaint regarding delay in placing his name on the kosher meal approval list, and failure to respond to requests for Passover accommodations.

In Wenzel v. Reynolds, 2018 U.S. Dist. LEXIS 156702 (ND IN, Sept. 13, 2018), and Indiana federal district court allowed an Odinist inmate to proceed with damage claims growing out of denial of his religious book for four days and that he was denied equal access to religious study materials. Claims for confiscation of runes and denial of a Christmas gift were dismissed.

In Cary v. Mox, 2018 U.S. Dist. LEXIS 156666 (ED MI, Sept. 14, 2018), a Michigan federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 157275, Aug. 14, 2018) and dismissed a complaint from a follower of the Native American Traditional Way that his medicine bag had been desecrated by correctional officers searching it.

In Davis v. Harper, 2018 U.S. Dist. LEXIS 158186 (SD IL, Sept. 14, 2018), an Illinois federal district court allowed a Muslim inmate to move ahead with his complaint that prison dietary staff ignored his documented allergies in preparing his food for Ramadan and related feasts.

In Guillen v. Francisco, 2018 U.S. Dist. LEXIS 158293 (ED CA,Sept. 17, 2018), a California federal magistrate judge recommended that a Native American inmate be allowed to move ahead with his complaint that a correctional officer touched plaintiff's medicine bag during a search.

In McCoy v. Aramark Correctional Services, 2018 U.S. Dist. LEXIS 159871 (D KA, Sept. 19, 2018), a Kansas federal district court held that issues of fact remain which preclude summary judgment for an Orthodox Jewish inmate who contends that certified religious diet meals do not meet his religious requirements.

6th Circuit: Moving Street Preachers Away From Pride Festival Violated Their Free Speech Rights

In McGlone v. Metropolitan Government of Nashville, (6th Cir., Sept. 19, 2018), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that the free speech rights of two sidewalk preachers were infringed when they were required to move their amplified anti-homosexuality preaching across the street from the park where a Pride festival was being held. The majority held:

Nashville excluded McGlone and Peters from a traditional public forum for expressing a message opposed to homosexuality and Nashville provides no compelling reason for doing so. Indeed, Nashville does not even argue that its restriction of McGlone and Peters’ speech could survive strict scrutiny review. We therefore end our inquiry here.

Judge Moore dissented, saying in part:

I believe that it was a reasonable time, place, and manner restriction for ... Nashville ... to require ... John McGlone and Jeremy Peters ... to cross a downtown street if they wished to continue shouting disruptive messages through bullhorns during a permit-authorized event in a public park....

European Court Says Catholic Hospital May Have Illegally Fired Doctor

In IR v. JQ, (COJ, Sept. 11, 2018) the Court of Justice of the European Union held that in Germany, a Catholic hospital may have discriminated illegally when it dismissed the head of its Internal Medicine Department for remarrying in a civil ceremony without his first marriage being annulled. According to the press release summarizing the Grand Chamber's holding:

[T]he national court hearing the action must satisfy itself that ... the religion or belief is a genuine, legitimate and justified occupational requirement in the light of the ethos in question.

... [T]he Court observes that adherence to the notion of marriage advocated by the Catholic Church does not appear to be necessary for the promotion of IR’s ethos due to the importance of the occupational activities carried out by JQ, namely the provision of medical advice and care in a hospital setting and the management of the internal medicine department which he headed. Therefore, that does not appear to be a genuine requirement of that occupational activity. This is corroborated by the fact that similar posts were entrusted to employees who were not of the Catholic faith and, consequently, not subject to the same requirement to act in good faith and with loyalty to IR’s ethos....

However, it is for the Bundesarbeitsgericht to determine whether IR has established that, in the light of the circumstances of the case, there is a probable and substantial risk that its ethos or its right of autonomy will be undermined.

National Secular Society reported on the decision.

Vatican Reaches Provisional Agreement With China Over Recognition of Bishops

As reported by Crux, the Vatican yesterday announced that it has signed a provisional agreement with China that would resolve the long-standing conflict over the appointment of bishops.  Pope Francis will officially recognize eight bishops named by the Chinese government's Patriotic Association, but previously not recognized by the Vatican. A Vatican spokesman said:

The objective of the accord is not political but pastoral, allowing the faithful to have bishops who are in communion with Rome but at the same time recognized by Chinese authorities.

For nearly 70 years, Chinese Catholics have been split between an official church recognized by the Chinese government and an underground church loyal to the Vatican.

European Court of Human Rights OKs Injunctions Against Anti-Abortion Activist

In four related Chamber Judgments issued on Sept. 20, the European Court of Human rights upheld injunctions and the award of damages in the cases that doctors brought against an anti-abortion activist for calling doctors who performed abortions aggravated murderers and comparing abortion to the Holocaust. The court issued a press release summarizing the holdings in Annen v. Germany (No. 2 to 5):

The cases concerned a series of complaints by an anti-abortion activist, Klaus Günter Annen, over civil court injunctions on various actions he had taken as part of an anti-abortion campaign. The plaintiffs in the domestic proceedings were four doctors who performed abortions.

The Court held in particular that the injunctions had interfered with Mr Annen’s freedom of expression, but had been necessary in a democratic society. When examining whether there had been a need for such interferences in the interests of the “protection of the reputation or rights of others”, namely of the doctors, the Court’s role was only to ascertain whether the domestic courts had struck a fair balance when protecting the freedom of expression guaranteed by Article 10 and the right to respect for private life protected by Article 8 of the [European] Convention [on Human Rights].

The press release contains links to the full text of each of the four decisions. [Thanks to Paul deMello Jr. for the lead.]

European Court's Advocate General Says Halal and Kosher Meat Can Be Labeled "Organic"

In a September 20 press release, the Court of Justice of the European Union announced the proposed finding of the Advocate General in a reference from France's Administrative Court of Appeal on whether under EU rules halal and kosher meat may be labeled as "organic":

[T]he Advocate General proposes that the Court find that the Regulation on organic production and labelling of organic products and the Regulation on the protection of animals at the time of killing do not prohibit the issue of the European ‘organic farming’ label to products from animals which have been the subject of ritual slaughter without prior stunning carried out in the conditions laid down in the latter regulation.

The Advocate General said, in addition however, that a contrary ruling would not be an interference with freedom of worship. [Thanks to Paul deMello Jr. for the lead.] 

UPDATE: Here is the full text of the Advocate General's opinion in  Œuvrestance d’assistance  aux bêtes d’abattoirs (OABA) v. Ministre de l’Agriculture et de l’Alimentation.

Cert Filed In Title VII Sabbath Accommodation Case

Last week, a petition for certiorari (full text) was filed with the U.S. Supreme Court in Patterson v. Walgreen Co. (cert. filed 9/14/2018).  In the case, the U.S. 11th Circuit Court of Appeals held that Walgreens had offered reasonable accommodations under Title VII for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. The employee, a training instructor, was fired in the aftermath of his refusal to conduct an emergency training session on a Saturday. (See prior posting.)  The Seventh Day Adventist Church issued a press release announcing the filing of the petition for review.

Israeli Court Fines Orthodox Jewish Station For Excluding Women On Broadcasts

Times of Israel reported yesterday:

In a precedent-setting ruling, the Jerusalem District Court fined the ultra-Orthodox Kol Berama radio station NIS 1 million ($280,000) on Thursday for excluding women from the airwaves.

The judge ordered the money be held in a designated fund that will later be distributed to various organizations helping ultra-Orthodox women.

The ruling comes six years after the Reform Movement’s Israel Religious Action Center and the religious women’s rights group Kolech filed a class action lawsuit against the radio station for its refusal to broadcast women on any of its programming.

Congressman Claims Advocacy Groups Are Spying On Christian School Groups In Louisiana

As a lawsuit against the  Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations continues, Louisiana congressman Mike Johnson this week posted the following warning on his campaign/personal Facebook page:

WARNING TO OUR FRIENDS IN BOSSIER SCHOOLS (Please share):

Last night we received very credible information that atheist litigation groups in CA have contacted private investigators in our area to try to hire them to obtain hidden video of Christian student groups and activities at Benton High School and potentially other Bossier Parish schools.

Unfortunately, this is to be expected now that these groups perceive the Bossier Parish School District as an ATM machine for attorney fee awards in what they believe will be easy Establishment Clause lawsuits. They are wrong, as our district is following the law--even as we fight vigorously to defend religious freedom. Sadly, Bossier schools will have to endure this legal harassment from the atheist groups for a while now, so everyone needs to be prepared.

According to an AP report, Americans United for Separation of Church and State says it has not hired private investigators, and the school district's attorney says he has no first hand knowledge of this kind of activity.

Court Continues Preliminary Injunction Against Trump's Policy On Transgender Military Service

In  Stockman v. Trump, (CD CA, Sept. 18, 2018), a California federal district court refused to dissolve a previously issued preliminary injunction barring enforcement of President Trump's August 2017 Memorandum that excludes transgender individuals from the military. The government argued that a subsequent March 2018 Presidential memorandum revoking the 2017 one and instead implementing a policy recommended by the Department of Defense mooted the earlier challenge. The court concluded however:

For the purpose of mootness, the controversy presented by the new policy is substantively the same as the controversy presented by the old policy. Transgender individuals will be disadvantaged “in the same fundamental way.”

The court went on to find that the transgender ban cannot survive intermediate scrutiny, rejecting the government's military readiness and unit cohesion arguments. MetroWeekly reports on the decision.

RFRA Defense To Virgin Islands Marijuana Prosecution Fails

In People of the Virgin Islands v. Felix, (VI Super. Ct., Sept. 11, 2018), a Virgin Island trial court avoided deciding the interesting question of whether RFRA applies to the Virgin Islands even though it does not apply to states. Instead the court held that even if RFRA does apply, the Virgin Islands' ban on possession of marijuana with intent to distribute would survive a RFRA challenge by defendant, a Rastafarian.  The court concluded that both the "substantial burden" and "compelling interest" tests under RFRA were not met.  The court said in part:

The defendant might have been successful in defending against a charge of simple possession of marijuana since marijuana is important to Rastafarian religious practice.  But there exists in the record no evidence establishing that the distribution of marijuana is a requirement of Rastafarianism.

Furthermore, the circumstances leading to the Defendant's arrest were clearly unrelated to his religious beliefs. At the time of his arrest, the Defendant was an employee of the Superior Court of the Virgin Islands and allegedly used the Superior Court's corporate account to have 127.5 grams of marijuana transported — without the knowledge of the Superior Court — from St. Croix to himself on St. Thomas. The Defendant received the drugs at about eleven-thirty in the morning during his shift....

New Law and Religion Journal

Virginia Wesleyan University's Center for the Study of Religious Freedom has published the first issue (full text) of a new on-line journal, Religio et Lex. The journal's call for papers says it:

seeks submissions of quality papers on any aspect of the intersection of religion(s) and law, including the experience of religious adherents under secular legal systems and examinations of religious legal systems...

The journal will publish both student and faculty papers. A link to Religio et. Lex has been added to the Religion Clause sidebar under "Journals".

RFRA Defense To Harboring Aliens Rejected At Pre-Trial Stage

An Arizona federal district court this week refused to dismiss criminal charges against Scott Warren, a volunteer with the humanitarian group No More Deaths.(Background). Warren was charged with concealing and harboring aliens to avoid their detention by immigration authorities. The complaint alleges that Warren gave two men who crossed the border illegally food, water, beds and clean clothes for three days.  In United States v. Warren, (D AZ, Sept. 17, 2018), the court rejected at this stage of the case Warren's defense that his actions are protected under the Religious Freedom Restoration Act.  The court held that RFRA is an affirmative defense to the charges against Warren, and should be decided through a trial rather than through a pre-trial motion to dismiss. [Thanks to Stephanie Inks via Religionlaw for the lead.]

NY Diocese Reaches $27.5M Settlement With 4 Abuse Victims

According to Talk Media News and the New York Times, the Catholic Diocese of Brooklyn (NY) and an after-school program this week agreed to pay $27.5 million to settle claims by four men who, as young boys, were repeatedly raped by Angelo Serrano who worked as a volunteer religion teacher in a Brooklyn church.  The abuse occurred from 2003-2009 when the boys were between 8 and 12 years old, and took place in Serrano's apartment next door to the church where he often invited the victims for sleep-overs. This is believed to be the largest Catholic Church settlement with individual plaintiffs for sex abuse.

Suit Argues Drag Queen Story Time Violates Establishment Clause

KADN News reported yesterday on a lawsuit filed in federal district court in Louisiana by two religious groups-- Warriors for Christ and Special Forces of Liberty-- seeking to stop Drag Queen Story Time at the Lafayette, Louisiana public library.  The lawsuit argues that the program endorses secular humanism. According to a report last month by the Acadiana Advocate:

Drag Queen Story Time entails a group of male University of Louisiana at Lafayette students reading books to young children while dressed in women’s clothing. Library staff will select the books, which are to be appropriate for children ages three to six. It is scheduled for Oct. 6 at the main branch downtown.

The attorney filing the lawsuit for the religious groups is Christophe Sevier, who has filed numerous suits around the country contending that homosexuality is a "religion." (See prior posting).  Commenting on the Louisiana lawsuit, Sevier said:

The evidence would suggest that the self identified transgendered. They are using a government facility to show that the governments backs their worldview to then target children, to indoctrinate them under a faith based ideology.

New Jersey Dioceses Release Victims From Non-Disclosure Agreements

This week, Patrick Brannigan, executive director of the New Jersey Catholic Conference, announced that victims of priest sexual abuse are free to ignore confidentiality agreements they signed in settling their claims with dioceses in New Jersey.  Such agreements were used in settlements prior to 2002.  NJ.com reports on this statement issued by Brannigan:

Cardinal Joseph Tobin and the other Catholic bishops of New Jersey have no issue if someone who had signed a settlement agreement prior to 2002 speaks publicly about his or her ordeal. In fact, we tell survivors who come forward that we will inform law enforcement of their allegations, and we encourage them to do the same.

Cert Filed In Case Testing Limits of Trinity Lutheran Case

A petition for certiorari (full text) was filed on Tuesday with the U.S. Supreme Court in Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation.  In the case, the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  The Court went on to hold that this interpretation does not violate the Free Exercise Clause of the U.S. Constitution. The petition for review frames the issues in the case as follows:

1. Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran [v. Comer].

2. Whether the categorical exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

Becket issued a press release announcing the filing of the cert. petition.