Guidance On Hate Crimes and Hate Speech Published By European Commission

The European Commission has published a Guidance Note dated November 2018 (full text) to assist member states of the European Union in enforcing national laws banning hate crimes and hate speech. The Note is designed to facilitate application of a 2008 Council of Europe Decision on Combating Racism and Xenophobia. The Note was compiled by an EU High Level Group created in 2016. [Thanks to Law & Religion UK for the lead.]

Congress Passes Bill Aimed At Prosecuting Iraq and Syria Genocide

Last week, Congress gave final passage to HR 390, the Iraq and Syria Genocide Relief and Accountability Act (full text). The bill now awaits President Trump's signature. The Act provides in part:

Sec. 4... It is the policy of the United States to ensure that assistance for humanitarian, stabilization, and recovery needs of individuals who are or were nationals and residents of Iraq or Syria ... is directed toward those ... with the greatest need, including those ... from communities of religious and ethnic minorities ... that .... have been identified as being at risk of persecution, forced migration, genocide, crimes against humanity, or war crimes.

Sec.5.... The Secretary of State and [USAID] ... are authorized to provide assistance ... to support the efforts of entities, including nongovernmental organizations with expertise in international criminal investigations and law, to address genocide, crimes against humanity, or war crimes ... by ISIS in Iraq....

Sec. 7... Not later than 90 days after the date of the enactment of this Act, the Secretary of State shall submit a report to the appropriate congressional committees that includes—... (2) an assessment of— (A) the feasibility and advisability of prosecuting ISIS members for whom credible  evidence exists of having committed genocide, crimes against humanity, or war crimes in Iraq, including in domestic courts in Iraq, hybrid courts, and internationalized domestic courts; and (B) the measures needed— (i) to ensure effective criminal investigations of such individuals....

[Thanks to Blog from the Capital for the lead.]

Religious Opposition To Furnishing Social Security Number Fails

In Ricks v. State of Idaho Contractors Board, (ID App., Dec. 3, 2018), an Idaho appeals court dismissed free exercise challenges to the state's requirement that an applicant for a contractor's license furnish his Social Security number.  Federal child support enforcement laws require states to collect Social Security numbers as part of applications for professional licenses if the state wishes to be eligible for certain federal grants.  George Ricks refused to furnish his Social Security number because of his religious belief that Social Security numbers are a form of the Biblical "mark of the beast."

The court rejected on pre-emption grounds Ricks argument that the requirement violates Idaho's Free Exercise of Religion Protected Act (FERPA):

 [T]he operation of FERPA, in the context of the cooperative endeavor between Congress and the Idaho Legislature, does impede 42 U.S.C. § 666(a)(13)’s objective of improving child support enforcement effectiveness by exempting individuals from I.C. § 73-122’s and I.C. § 54-5210’s requirement of providing social security numbers on professional license applications. In other words, an exemption granted by FERPA would make it more difficult to locate a parent who may have outstanding child support obligations through the Federal Parent Locator Service database. Because this amounts to a direct conflict with Congress’s intent in passing 42 U.S.C. § 666(a)(13), 42 U.S.C. § 666(a)(13) preempts FERPA in this context.

The court rejected Ricks' federal RFRA argument because no federal defendant was named. Finally it rejected his First Amendment and state constitution free exercise claims finding that the laws at issue are neutral laws of general applicability. The court also released a summary statement of its holding.

Recent Articles of Interest

From SSRN:

• Richard W. Garnett, 'There Are No Ordinary People': Christian Humanism and Christian Legal Thought, (56 J. Cath. Leg. Stud. 77 (2017)).
• Kevin M. Barry, The Death Penalty & The Fundamental Right to Life,(November 20, 2018).
• Tarunabh Khaitan & Jane Calderwood Norton, The Right to Freedom of Religion and the Right against Religious Discrimination: Theoretical Distinctions, (Oxford Legal Studies Research Paper (Oct. 2018)).
• Tarunabh Khaitan & Jane Calderwood Norton, Religion in Human Rights Law: A Normative Restatement, (Oxford Legal Studies Research Paper (Oct. 2018)).
• Robin Fretwell Wilson & Shaakirrah Sanders, By Faith Alone: When Religious Beliefs and Child Welfare Collide, (Chapter in: The Contested Place of Religion in Family Law, May 2018, Cambridge University Press).
• Perry Dane, Corporations, (Routledge Companion to Economic Theology, Forthcoming).
• David L. Hudson, Justice Kennedy and the First Amendment, (9 HLRe 49 (2019)).
• David Eliot Bernstein, The Boundaries of Antidiscrimination Laws, (George Mason University Legal Studies Research Paper No. LS 18-34 (2018)).

From SSRN (Non-U.S. Law):

• Yudhanjaya Wijeratne, The Control of Hate Speech on Social Media: Lessons from Sri Lanka, (CPR South, 2018, Policy Brief).
• Mohammad Fadel, Modern Islamic International Law between Accommodation and Resistance: The Case of Israel and BDS, (19 Yearbook of Islamic and Middle Eastern Law (2016-2017), pp. 247-78 (December 13, 2018, Forthcoming).
• Kyriaki Pavlidou, Religious Expression in the Workplace Before the European Court of Human Rights and the Court of Justice of the European Union: Discriminating Against a Fundamental Right?, (Applying Non-Discrimination Law, Goulas D. and Kofinis St. (eds.), Hellenic League for Human Rights, Thessaloniki, 2018, pp. 146-193).
• Tarunabh Khaitan, Discrimination, (Max Planck Encyclopedia of Comparative Constitutional Law, 2017).

President Trump's Hanukkah Message

Yesterday the White House issued a Presidential Message on Hanukkah which in part connects the holiday that began yesterday evening with recent events;

For eight nights, Jewish families and friends will come together to engage in the lighting of the menorah.  This special tradition started more than 2,000 years ago during the rededication of the Holy Temple in Jerusalem, which followed a trying period when Jews were persecuted for practicing their faith.

Unfortunately, Jews today continue to face many different forms of violence, hatred, and bigotry around the globe.  We remember all those from the Tree of Life—Or L’Simcha Congregation—whose lives were tragically taken in Pittsburgh, Pennsylvania, this past October.  As one Nation, we pledge our continued love and support for the victims, their families, and the community, and we pray that the victims’ families find some measure of peace and comfort during this holiday season.

Recent Prisoner Free Exercise Cases

In Jannisch v. Bates, 2018 U.S. Dist. LEXIS 199718 (D MY, Nov. 26. 2018), a Montana federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 200612, Aug. 27, 2018) and dismissed a Native American inmate's complaint regarding confiscation and destruction of his religious property.

In Salas v. Ducart, 2018 U.S. Dist. LEXIS 199724 (ND CA, Nov. 26, 2018), a California federal district court allowed a Jewish inmate to move ahead with complaint regarding the availability of kosher meals, religious meal ceremonies and a Seder meal.

In Vann v. Griffin, 2018 U.S. Dist. LEXIS 201577 (SD NY, Nov. 28, 2018), a New York federal district court dismissed an inmate's complaint that correctional officers on five occasions interfered with his religious practice by touching his Santeria beads, crushing his cigar, looking through his religious pouches, or desecrating his religious objects.

In Alsaifullah v. State of New York, 2018 N.Y. App. Div. LEXIS 8141 (NY App. Div., Nov. 29, 2018), a New York state appeals court held that the Court of Claims properly dismissed a Muslim inmate's complaint that he was deprived of meals for two holy days.

In Bybee v. Monroe County Detention Facilities, 2018 U.S. Dist. LEXIS 202452 (SD FL, Nov. 28, 2018), a Florida federal magistrate judge recommended denying a temporary restraining order to an inmate complaining about access to kosher food.

Another Contraceptive Coverage Mandate Case Is Settled

Another of the challenges by religious non-profits to the Obama administration's Affordable Care Act contraceptive coverage mandate has been disposed of by the courts.  The Trump administration has expanded the exemption available for those with religious or moral objections to the mandate and numerous of the cases have already been, with the acquiescence of the government, decided in favor of the objectors. In the latest, the 11th Circuit has issued an order (full text) in Eternal Word Television Network, Inc. v. Secretary of the U.S. Department of Health and Human Services, (11th Cir., Nov. 29, 2018), vacating the district court's order granting partial summary judgment to defendants and remanding the case.  As explained in a press release from ETWN:

Following the Supreme Court’s decision in Zubik, the Court of Appeals vacated its own negative order against EWTN on May 31, 2016.  The court’s order asked for further briefing on the matter while the parties worked toward a settlement. 

Attorneys for EWTN and the Department of Justice negotiated terms of a settlement under which the government agreed not to enforce the contraceptive mandate against the network, and that EWTN would ask the 11th Circuit Court of Appeals to vacate the District Court’s decision. The 11th Circuit granted that request on Nov. 29.

New York Issues Regulations For Review Of Religious Schools' Curricula

On Nov. 20, the New York State Education Department issued guidelines for Substantial Equivalency Review of the curriculum of non-public religious and independent schools (full text), along with related materials.  As reported by The Forward:

The regulations come years into a growing controversy over whether New York’s Hasidic yeshivas are providing education that is substantially equivalent to that offered in public schools, as is required by state law....

The guidelines ... are based on a controversial law passed as part of last summer’s budget deal.... The new law says that the state education commissioner, rather than local school districts, will determine equivalency for schools that meet certain criteria that were drawn only to include Hasidic yeshivas.

(See prior related posting.)

Should Japanese Government Pay For Shinto Royal Rites?

The Telegraph reports:

Prince Akishino, the younger son of Japan’s Emperor Akihito, has stirred controversy by suggesting that the state should not cover the cost of a Shinto religious ritual for his older brother’s accession to the Chrysanthemum Throne next year....

Instead, he said the cost of the Daijosai rite in November should come directly from the imperial family’s funds.....

Under the terms of the constitution, the government is not permitted to engage in religious activities and there are some, apparently including the prince, who believe that the government paying for the two-day Shinto Daijosai ritual runs contrary to those rules.

Hasidic Jewish School Sues For Right To Expand

A lawsuit was filed this week in a New York federal district court against the Village of Airmont charging that the village and its school board are engaged in a coordinated effort to prevent the local Hasidic Jewish community from expanding a religious school which operates on a 21-acre piece of land.  The 75-page complaint (full text) in Central UTA of Monsey v. Village of Airmont, New York, (SD NY, filed 11/28/2018), claims violations of RLUIPA, the 1st and 14th Amendments and the New York state constitution, contending:

Village officials have attempted to place a cap on the total number of Hasidic Jewish children that may be educated at Central UTA's Hasidic Jewish religious school, angry protesters have prevented a meeting of the Planning Board to consider Central UTA's application to build two new school buildings from occurring, and Village officials' political campaign advertisements paint an apocalyptic picture of what will happen if their opponents who support the rights of the Hasidic Jewish community are elected....

Defendants are using their political policymaking and enforcement authority to use the Village's zoning laws and ordinances to prevent and dissuade Hasidic Jews from joining their community and denying those families that have moved to the area their rights to school services that are guaranteed under the law.

First Liberty issued a press release announcing the filing of the lawsuit.

Hopi Tribe Loses Public Nuisance Challenge To Snowbowl Expansion

In Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, (AZ Sup. Ct., Nov. 29, 2018), the Arizona Supreme Court in a 5-2 decision, rejected the Hopi Tribe's attempt to invoke public nuisance law to challenge the sale of wastewater to make artificial snow at a ski resort on federal land.  The land has been traditionally used by the Hopi for religious and ceremonial purposes.  Under Arizona law, a private party can challenge a public nuisance only if the party can show special injury different from that suffered by the public at large. In the latest chapter of the Hopi's long-running attempt to challenge the Snowbowl expansion, the majority held that environmental damage to public land with religious, cultural, or emotional significance to the tribe is not enough to create "special injury." The majority said in part:

because a particular place’s religious importance is inherently subjective, ... courts are ill-equipped to determine whether “one form of incidental interference with an individual’s spiritual activities” should be analyzed differently from that of another....

At its core, the special injury requirement serves a gatekeeping function that prevents courts from deciding issues under the guise of public nuisance claims when such issues are best left to public officials, a pivotal principle in federal cases grappling with religious freedom challenges to public land uses.

Chief Justice Bales, joined by Justice Bolick, dissented, saying in part:

[T]he Hopi face the destruction and desecration of some of their most sacred locations and practices. This is the harm that the majority claims is no different than that suffered by the public at large.... But the general public does not have millennia of religious practice in the area that will be covered in a fine film of reclaimed sewage. Nor does the general public have rights of access and use - rooted in Hopi tradition and cultural practices - recognized by federal statutes.

Arizona Republic reports on the decision.

Suits Proliferating Against Airbnb Over West Bank Delistings

Lawsuits are proliferating against Airbnb for its decision last week to delist rentals in Israeli settlements in the West Bank.  In addition to the arbitration proceeding previously reported, a suit under the federal Fair Housing Act was filed in Delaware federal district court. Delaware is Airbnb's state of incorporation. (Reuters). According to JTA, the 18 plaintiffs in the lawsuit either own property in Israel or have rented property there in the past through Airbnb. Separately a suit was filed against Airbnb in an Israeli court alleging discrimination in violation of Israeli law, and a separate suit in Israeli courts against Human Rights Watch for its involvement in Airbnb's action is in the offing. (JTA).

Appeals Court Vacates Invalidation of California's Assisted Suicide Law

In People ex rel Becerra v. Superior Court of Riverside County, (CA App., Nov. 27, 2018), a California state appellate court issued a writ of mandate ordering the trial court to vacate its decision striking down California's End of Life Option Act.  The Act legalizes physician-assisted suicide for the terminally ill.  The trial court had held that the Act was outside the scope of the proclamation calling the special session of the legislature that passed it.  The majority in the appellate court held that plaintiffs-- doctors and a Christian medical society-- lack standing to bring the challenge.  Judge Slough, dissenting in part, argued that the court should reach the merits of the challenge to the law and should hold that the law was constitutionally enacted.  Courthouse News Service reports on the decision.

White House Christmas Decorations Unveiled

On Monday the White House issued a press release and accompanying video on the this year's White House Christmas decorations which reflect the theme "American Treasures".  The press release reads in part:

“This is a joyous time of year when we decorate the White House for the Christmas Season,” said First Lady Melania Trump. “Our theme honors the heart and spirit of the American people.  Thank you to the many volunteers and staff who worked hard to decorate the halls of the People’s House in Christmas cheer.  On behalf of my family, we wish everyone a very Merry Christmas and a Happy New Year.”

Suit Against Scranton Diocese Over Priest Sexual Abuse

In another lawsuit growing out of the Pennsylvania grand jury report released in August, a teenage sexual abuse victim-- now 29 years old-- filed suit on Tuesday against the Diocese of Scranton, three bishops, and former priest Jeffrey Paulish.  Paulish, who served several months in jail for abusing another 15-year old boy, was named in the grand jury report. According to the Pittsburgh Post-Gazette:

Lawyers say they plan to subpoena the diocese for information about Paulish’s history in the diocese.

The grand jury report found that Paulish was transferred 11 times in his 18 years as a priest and was given leaves of absence both before and after their client says he was abused. They think that could mean that current Bishop Joseph Bambera was aware of Paulish’s abusive behavior before he was arrested in 2013.

Parents Sue Archdiocese and Pre-School Over Sexual Abuse

A suit was filed yesterday in a Pennsylvania state trial court against the Archdiocese of Philadelphia and a pre-school, St. Francis Learning Center, by parents of three toddlers who were sexually abused by a lay teacher.  The suit charges that the defendants did not properly screen the teacher and did not notify parents when other children made accusations against the teacher.  The Archdiocese said it promptly reported accusations to authorities. The teacher is serving a 4 to 8 year sentence after pleading guilty. AP reports on the lawsuit.

European Court Finds Russia's Ban On Public LGBT Events A Convention Violation

In Alekseyev v. Russia, (ECHR, Nov. 27, 2018), the European Court of Human Rights in a chamber judgment by a panel of 7 judges held that Russia violated the protections on freedom of assembly (Art. 11) and the prohibition against discrimination (Art. 14) in the European Convention on Human Rights when it banned the holding of public LGBT events. It also found a violation of Art. 13's guarantee of a remedy in national courts for Convention violations. The Court emphasized that it had rendered a similar opinion in a 2010 case against Russia.  Judge Keller dissenting in part argued that damages should have been awarded in the case, rather than just entering a finding of violations of the Convention.  AP reports on the decision.

Witnesses May Take Oath on Eagle Feathers In Two More Canadian Provinces

In two more Canadian provinces, Indigenous Peoples will now have the option of taking the oath as a witness using Eagle feathers instead of a Bible.  Earlier this month, the Nova Scotia court system adopted the practice (CBC News). Yesterday it was reported that a similar step was taken at the Lethbridge, Alberta Courthouse. (CBC News).  These follow introdction of the option almost three years ago at the Ottawa, Ontario Courthouse. (CBC News).

Claim Filed Against Airbnb For Its Delisting of West Bank Rentals

As reported by the New York Times, last week Airbnb under pressure from Palestinian officials, anti-settlement advocates and human rights groups announced that it is removing listings for rentals in Israeli settlements in the West Bank.  In response, yesterday an arbitration claim (pursuant to the arbitration clause in Airbnb's terms of service) was filed against Airbnb by an Israeli company owned by a resident of New York.  The Statement of Claim (full text) in Bibliotechnical Blue & White Ltd. v. AIRBNB, Inc., (Amer. Arbitration Assoc., filed 11/26/2018) alleges in part:

Claimant recently registered as a user of Respondent's services. This was done in the City of New York. Claimant would like to purchase or purchase or lease property in Judea & Samaria and list it with Respondent's services using computer services in the City of New York. Thus, Respondent's policy is discriminatorily preventing Claimant from using Respondent's services in the City of New York....

Respondent has violated the New York City and New York State human rights laws by discriminating on the basis of religion, national origin and/or citizenship and also by engaging in a discriminatory boycott.

Legal Insurrection blog reports in more detail on the case.

Jury Awards $75,000 To Couple Whose Christmas Program Was Opposed By Homeowners Association

The Spokane Spokesman-Review reports that a federal court jury in Idaho last month awarded $60,000 in compensatory damages and $15,000 in punitive damages against a Homeowners Association that attempted to block a resident from setting up an elaborate Christmas display. The jury, in the case which attracted national media attention when filed, found that the Homeowners Association engaged in religious discrimination in violation of the Federal Fair Housing Act when it sent a letter to Jeremy and Kristy Morris telling them that if they wanted to move into the neighborhood they would need to cancel plans for their annual 5-day Christmas celebration.  The celebration features elaborate decorations, live music, and live animals, draws thousands of people, and raises money for charities benefiting children suffering from cancer and abused children. The HOA letter, in addition to claiming that the celebration would violate lighting and noise rules, added: "And finally, I am somewhat hesitant in bringing up the fact that some of our residents are non-Christians or of another faith, and I don’t even want to think of the problems that could bring up."  This was portrayed by some media as part of the so-called "war on Christmas." More details on the lawsuit and photos of the celebration are at The Daily Mail and the Coeur d'Alene Press.