European Human Rights Court Can Now Issue Advisory Opinions

The European Court of Human Rights announced last week that Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms (full text) has come into force after France became the tenth nation to ratify it. The Protocol allows courts in each European nation to request advisory opinions on the interpretation or application of the European Convention on Human Rights.  Requests for advisory opinions are limited to cases pending before the national court when the request is made.

European Court Says Bektashi Community Should Have Been Recognized

In Bektashi Community v. The former Yugoslav Republic of Macedonia, (ECHR, April 12, 2018), the European Court of Human Rights, in a Chamber Judgment, held that the Bektashi Community had wrongfully been denied registration as an officially recognized religious organization under Macedonia's 2007 Legal Status of Churches, Religious Communities and Religious Groups Act.  The Court held in part:

[T]he ground for refusing re-registration of the applicant association was purely formal, notably that it had not been registered by the Commission as a religious entity prior to 1998, but only listed in 2000. The Government omitted to indicate any legitimate aim which this formal restriction may have pursued....

After the registration court refused to re-register the applicant association under section 35 of the 2007 Act, the applicant association launched new proceedings for its registration under the name "Bektashi Religious Community of the Republic of Macedonia"....

The Court also rejected a name-confusion argument, finding that the name is "sufficiently specific to distinguish it from the 'Ehlibeyt Bektashi Religious Group of Macedonia'".  The Court went on:

The other ground relied on by the domestic courts concerned the doctrinal sources of the applicant association, which they found to be identical to the doctrinal sources of the already registered "Islamic Religious Community". That conclusion was made on the basis of an assessment by the domestic courts of the applicant association's fundamental precepts and their comparison with the precepts of the "Islamic Religious Community" .... In the Court's view, such an assessment and interpretation of the applicant association's basic tenets of creed was incompatible with the State's role as a neutral and impartial organiser of the exercise of various religions, faiths and beliefs, which excludes, save for very exceptional cases, any discretion on the part of the State to assess the legitimacy of religious beliefs or the ways in which those beliefs are expressed....

 Law & Religion UK has more on the decision.

USCIRF Issues New Report On Religious Freedom Challenges In Burma

The U.S. Commission on International Religious Freedom has recently issued an update on religious freedom challenges in Burma. (Full text of report).  The report, which particularly focuses on the conditions faced by Rohingya Muslims in Rakhine State, also more broadly summarizes the situation in the country:

Successive governments in Burma have failed to ensure that all religious communities are able to practice their faith freely, openly, and without fear, and in some cases have directly perpetrated, tolerated, or ignored religious- and ethnic-based discrimination and abuses. Religious and ethnic minorities are disadvantaged by:

• Institutionalized discrimination;

• Increasing anti-Muslim sentiment and the related rise of Buddhist nationalism, which has affected all religious minorities;

• A culture of impunity and lack of accountability for human rights abuses and crimes committed by military and nonstate actors; and

• Decades of ethnic armed conflicts and internal displacement.

The deprivation of Rohingya Muslims’ rights became even more acute following 2012 communal violence in Rakhine State...

Recent Articles of Interest

From SSRN:

• R. Michael Cassidy, Catholic Social Thought and Criminal Justice Reform, (Journal of Catholic Social Thought, Forthcoming).
• Giancarlo Anello & Mohamed A. Arafa, The Meaning of ‘Religion’ in the Legal Context: Some Remarks on the Pragmatics of Islam in Egyptian Law in Multicultural Societies Law, (39 Rivista Telematica [Milan Univ. L. J. “Italy”] (Fall 2017)).
• Trudo Lemmens, Charter Scrutiny of Canada's Medical Assistance in Dying Law and the Shifting Landscape of Belgian and Dutch Euthanasia Practice, (85 Supreme Court Law Review (2nd Series) (Forthcoming)).
• Micah Schwartzman, Official Intentions and Political Legitimacy: The Case of the Travel Ban, (NOMOS LXI: Political Legitimacy(2018)).
• Amos N. Guiora, Inciting Terrorism on the Internet: The Limits of Tolerating Intolerance, (Incitement to Terrorism (A. Bayefsky & L. Blank, eds, Brill 2018)).
• Sabir Ali, Usman Umer & Muhammad Waqas Butt, Role of English Press in Dissemination of Liberal Values for Women Empowerment in Pakistan: Honor Killing of Qandeel Baloch, (May 30, 2016).
• Mohammed Hussain, Vanja Hamzić: Sexual and Gender Diversity in the Muslim World: History, Law and Vernacular Knowledge, (VRUE Journal, Spring 2018, Forthcoming).
• Linda Sugin, Competitive Philanthropy: Charitable Naming Rights, Inequality, and Social Norms, (79 Ohio St. L. J. _ (2018)).

From SmartCILP:

• Gregory Brazeal, Between Description and Prescription: Law, Wittgenstein, and Constitutional Faith, 120 West Virginia Law Review 363-426 (2017).

Tax Objector's Strategy To Prevent Garnishment Does Not Constitute Tax Evasion

The Oregonian last week reported on a partial court victory by Christian tax objector Michael Bowman who for the last nearly 20 years has refused to file income tax returns unless some accommodation is made so none of his tax monies support abortion.  When in 2012 Oregon tax authorities began to garnish Bowman's bank account, he moved to keep only a small balance in his checking account by cashing his pay checks rather than depositing them.  This led federal authorities last year to charge him with felony counts of tax evasion.  However, last week an Oregon federal district court held that merely cashing pay checks, when his income was fully reported to the IRS, could not constitute tax evasion.  However Bowman still faces four federal misdemeanor counts of willful failure to file tax returns.

Recent Prisoner Free Exercise Cases

In Buckley v. Cook, 2018 U.S. Dist. LEXIS 59987 (SD IL, April 9, 2018), an Illinois federal district court dismissed without prejudice an inmate's complaint that the Alton County Jail did not offer formal religious services on Sundays. The court allowed him to proceed on certain unrelated claims.

In Little v. Guice, 2018 U.S. Dist. LEXIS 59995 (WD NC, April 6, 2018), a North Carolina federal district court dismissed an inmate's complaint that he was sanctioned for writing his cousin about the Moorish American faith.

In Chila v. Camden County Correctional Facility, 2018 U.S. Dist. LEXIS 60547 ( NJ, April 9, 2018), a New Jersey federal district court dismissed a female Muslim inmate's complaint that her hijab was taken from her, she was denied access to a Quran, and she could not leave her cell for religious worship.

In Johnson v. Bienkoski, 2018 U.S. Dist. LEXIS 61560 (MD PA, April 10, 2018), a Pennsylvania federal magistrate judge recommended dismissing without prejudice an inmate's complaint that his religious beads were confiscated and his commissary privileges were restricted during Ramadan.

In Robertson v. Call, 2018 Kan. App. Unpub. LEXIS 274 (KA App., April 13, 2018), a Kansas Court of Appeals agreed that a prison had not violated the Establishment Clause by limiting a Messianic Jewish inmate's visits with his rabbi to interaction through video conferencing rather than allowing face-to-face visits. It also agreed that a visit by a Christian ministries group had not violated the Establishment Clause.

In Michigan, Battle Over Appropriations For State Mandates On Private Schools, Continues

Detroit News yesterday reported on developments in Michigan in the battle over legislative appropriations to fund state mandates imposed on private and religious schools-- requirements such as fire drills and criminal background checks.  Last year, the state Court of Claims issued a preliminary injunction barring payment of the $2.5 million that the legislature had appropriated.  The Court's decision was based on Michigan's Blaine Amendment (inserted in the state constitution in 1970) that bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school". (See prior posting.)  On March 12, Immaculate Heart of Mary Catholic school in Grand Rapids, along with parents and state legislators, filed a counter-suit in the Court of Claims contending that the Blaine Amendment violates the free exercise, free speech and equal protection clauses of the federal constitution.  According to the Detroit News:

The Grand Rapids school’s lawsuit argues the state’s so-called Blaine Amendment was developed in a furor of “anti-Catholic sentiment” and should be disregarded in the debate over the $2.5 million state allocation for non-public schools.

The enjoined funding has been included by the legislature, over the opposition of Gov. Rick Snyder, in the proposed 2019 budget.

Michigan Supreme Court Reinstates Consumer Protection Challenge To Gym's Transgender Rules

The Michigan Supreme Court in  Cormier v. PF Fitness- Midland, LLC, (MI Sup. Ct., April 6, 2018), reversed a state appeals court's dismissal of a Michigan Consumer Protection Act lawsuit against Planet Fitness.  The lower court had held that plaintiff had abandoned her Consumer Protection Act claim.  Her suit challenges Planet Fitness' cancellation of her membership after her warnings to others about a transgender woman at the club.  The gym's rules allow transgender individuals to use locker rooms consistent with their gender identity.  AP reports on the decision. [revised]

Judge's Suit Challenging His Removal From Death Penalty Cases Moves Ahead

In Griffen v. Arkansas Supreme Court, (ED AR, April 12, 2018), an Arkansas federal district court held that sovereign and judicial immunity do not bar a suit for declaratory relief brought by a state court judge against justices of the Arkansas Supreme Court after they barred him from hearing death penalty cases.  Plaintiff, who is also a pastor, was active in demonstrations and vigils opposing the death penalty.  He contends that the action taken against him amounts to retaliation based on his speech and religion in violation of the 1st Amendment and the Arkansas Religious Freedom Restoration Act. The court held that he had stated a plausible claim for relief.  AP reports on the decision.

UPDATE: On April 24, defendants filed a writ of mandamus with the 8th Circuit challenging the district court's refusal to dismiss the lawsuit. (Arkansas Online).

Dolphins Cheerleader Claims Religious Discrimination In Limits On Her Social Media Posts

According to USA Today, former Miami Dolphins cheerleader Kristan Ann Ware this week filed a complaint with the Florida Commission on Human Relations against the Dolphins and the National Football League alleging religious and gender discrimination.  She says that in her annual work review, she was told not to discuss on social media her religious decision to abstain from sex before marriage.  She had posted a photo of her baptism online.  She contends that the players are not held to the same standards regarding discussion of religion on social media.

Magazine Says Muslims Are Thriving In America

National Geographic has posted a lengthy article titled How Muslims, Often Misunderstood, Are Thriving in America.  Here is an excerpt:

Today an estimated 3.45 million Muslims in America are living in a climate of hostility, their faith distorted by violent extremists on one end and an anti-Muslim movement on the other. The rise in animosity was stoked by fiery anti-Muslim rhetoric from conservative commentators and politicians, including the president. Trump repeatedly has described Islam as a threat, retweeting anti-Muslim videos from a British hate group and keeping his distance from the religion, like when he decided the White House, for the first time in more than two decades, would not host a dinner to mark Ramadan....

And yet Muslim communities in America are thriving. Modest clothes for women who cover their hair are being created by Muslims in the U.S. under labels like Haute Hijab and Austere Attire, and Macy’s is now selling fashion for Muslim women. Halal products, the Muslim equivalent of kosher, are available at Costco and Whole Foods. Mattel has even debuted a Muslim Barbie. The doll, complete with a head scarf, is modeled on Olympic fencer Ibtihaj Muhammad. There’s a Muslim liberal arts college in Berkeley, California, and a graduate school in Claremont, California. Community activism is thriving, and Muslim activists are forging alliances with other marginalized communities.

Trump Issues Proclamation On Holocaust Remembrance

Today is Yom Hashoah (Holocaust  Remembrance Day).  Yesterday President Trump issued a Proclamation (full text) asking the people of the United States:

to observe the Days of Remembrance of Victims of the Holocaust, April 12 through April 19, 2018, and the solemn anniversary of the liberation of Nazi death camps, with appropriate study, prayers and commemoration, and to honor the memory of the victims of the Holocaust and Nazi persecution by internalizing the lessons of this atrocity so that it is never repeated.

New Report On Worldwide Antisemitic Incidents

Yesterday Tel Aviv University's Kantor Center for the Study of Contemporary European Jewry released its 103-page report titled Antisemitism Worldwide General Analysis 2017 .  The Center highlights this excerpt:

In 2017, there was a moderate worldwide average decrease in antisemitic violent incidents that were directed at Jewish people, their communities and their private property, of about 9% (327 cases compared to 361 in 2016, according to the Kantor Center criteria). It does not include yet the numbers of violent incidents in France, which the Jewish security body is still elaborating. During the years 2006 to 2014, the violent cases worldwide numbered between 600 to 700 per year, while during recent years they decreased 300 to 400. But it should be emphasized that some of the recent violent cases have been perpetrated more brutally, causing more harm. And most important – this decrease is overshadowed by what is seen by the Jewish communities as a dramatic increase in all other forms of antisemitic manifestations, many of which are not even reported, most notably harassment in schools (some Jewish pupils moved to Catholic schools) and on social media.

AP reports on the data.

Law Student Religious Liberty Writing Competition Announced

The J. Reuben Clark Law Society has announced its 9th Annual Religious Liberty Writing Competition for law students and graduate students in related areas.  The deadline for submissions is July 1, 2018.

At Hearing Judicial Nominee Retreats From Prior Pro-Life Comments

Yesterday the Senate Judiciary Committee held a hearing on the nomination of Wendy Vitter to be United States District Judge for the Eastern District of Louisiana.  NPR reports on the hearing:

Wendy Vitter, nominated by President Trump for a federal judgeship, tried Wednesday to walk back several controversial comments she made about abortion and birth control.

Questioned by skeptical Democrats at her confirmation hearing, she maintained she could "put aside" her long-held "pro-life" advocacy, and as a judge enforce the Supreme Court's Roe v. Wade decision on abortion rights.

In particular, Vitter sought to distance herself from a brochure she had appeared to endorse while leading a panel at a pro-life conference in 2013. The panel was called "Abortion Hurts Women," and the brochure promoted a variety of unsubstantiated claims linking birth control pills to breast cancer, cervical and liver cancers, and "violent death."

Indiana Homicide Law Expanded To Cover Non-Abortion Killing of Fetus At Any Stage

On March 25, Indiana Governor Eric Holcomb signed Senate Bill 203 (full text).  The new law expands the state's murder and manslaughter laws to include killing of a fetus "at any stage of development".  Prior law covered only killing of a fetus that has attained viability.  The law does not apply to a lawfully performed abortion or to a pregnant woman who terminates her own pregnancy or kills a fetus she is carrying. Liberty Counsel issued a press release on the new law.

Update On Third Travel Ban Developoments

The Supreme Court will hear oral arguments on April 25 in Trump v. Hawaii, a group of challenges, including an Establishment Clause challenge, to President Trump's third travel ban. (See prior posting.) Over 70 amicus briefs have been filed in the case.  Links to them are on SCOTUSblog's case page.  Meanwhile, yesterday the White House announced that the President has signed a Proclamation removing Chad from the list of countries covered by the travel ban, saying in part:

Republic of Chad has improved its identity-management and information sharing practices sufficiently to meet the baseline security standard of the United States.  Chad nationals will therefore again be able to receive visas for travel to the United States.

India Supreme Court Affirms Right To Choose Religion and Marriage Partner

In Jahan v. Asokan K.M., (India Sup. Ct., April 9, 2018), a 3-judge panel of India's Supreme Court, in 61 pages of opinions, set aside a High Court's order that had annulled the marriage of a 26-year old student who had converted to Islam in order to marry. The court strongly affirmed the right of individuals to choose their religious faith and their marriage partner. The court's opinion by Chief Justice Misra said in part

It is obligatory to state here that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression ... destroy the individualistic entity of a person.  The social values and morals have their space  but they are not above the constitutionally guaranteed freedom.  The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.  Faith of a person is intrinsic to his/her meaningful existence.  To have the freedom of faith is essential to his/her autonomy....

In the case at hand, the father ... may feel that there has been enormous transgression of his right to protect the interest of his daughter but his view point or position cannot be allowed to curtail the fundamental rights of his daughter who, out of her own volition, married the appellant.

A concurring opinion by Justice Chandrachud added:

The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life.... Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity.... Society has no role to play in determining our choice of partners. 

One India and The Hindu report on the decision.

Anti-Transgender Bathroom Initiative Voted Down In Anchorage

Anchorage Daily News reports that in Alaska's first-ever vote-by-mail election, a so-called "bathroom bill" initiative was defeated by Anchorage voters.  The Ballot Measure would have required that all municipally-owned facilities limit restrooms and locker rooms by sex as determined biologically rather than by gender identity.  The initiative would also have permitted other employers and public accommodations to adopt the same policy.  With virtually all ballots counted, the vote as reported last Friday was 40,378 opposed and 36,234 in favor.  Metro Weekly reports on reactions to the defeat.

Trump Cabinet Has Bible Study Group

BBC reports that President Trump's Cabinet has a weekly Bible study group, led by former professional basketball player-turned-pastor, Ralph Drollinger.  While not all Cabinet members attend each week, the group has ten "sponsors". Members of the group include Vice-President Mike Pence, Secretary of State Mike Pompeo, Education Secretary Betsy DeVos, Energy Secretary Rick Perry and Attorney General Jeff Sessions.  Some of the Cabinet members originally got to know Drollinger through his Capitol Ministries study groups in the House and Senate. According to BBC:

President Trump is not a member of Drollinger's group - but he is a Christian, and does get Drollinger's eight-page print-outs most weeks.

"He writes me back notes on my bible studies," says Drollinger.

"He's got this leaky Sharpie felt-tip pen that he writes all capital letters with. 'Way to go Ralph, really like this study, keep it up.' Stuff like that."

[Thanks to Scott Mange for the lead.]