Recent Prisoner Free Exercise Cases

In Priest v. Holbrook, (9th Cir., Oct. 31, 2018), the 9th Circuit reversed the district court's dismissal of a Native American inmate's complaint that his golden eagle feathers were confiscated.

In McCracken v. Godert, 2018 U.S. Dist. LEXIS 178074 (ED MO, Oct. 17, 2018), a Missouri federal district court allowed an inmate who is a Native American Medicine Man to move ahead with his complaint that the prison's ban on tobacco failed to provide an exception for religious ceremonies.

In Ross v. Sandoval, 2018 U.S. Dist. LEXIS 179876 (D NV, Oct. 19, 2018), a Nevada federal district court granted a preliminary injunction requiring that a Buddhist inmate be placed on the common fare diet.

In Barnes v. Daviess County Detention Center, 2018 U.S. Dist. LEXIS 180713 (WD KY, Oct. 19, 2018), a Kentucky federal district court allowed a Muslim inmate to move ahead with his complaint that during Ramadan he has not been able to engage in prayers or have a clean uniform in which to pray.

In Franklin v. York, 2018 U.S. Dist. LEXIS 180832 (ND NY, Oct. 16, 2018), a New York federal magistrate judge recommended dismissing a Muslim inmate's complaint regarding a prayer rug, Ramadan meals, and receipt of mail including a prayer schedule. UPDATE: The court adopted the magistrate's recommendation at 2018 U.S. Dist. LEXIS 190161, Nov. 7, 2018.

In Archibald v. Warren County Regional Jail, 2018 U.S. Dist. LEXIS 181336 (WD KY, Oct. 23, 2018), a Kentucky federal district court allowed a Muslim inmate to move ahead with his complaint regarding Ramadan meals.

In Clinton v. Duby, 2018 U.S. Dist. LEXIS 182079 (WD MI, Oct. 24, 2018), a Michigan federal district court allowed an inmate to move ahead with claims growing out of denial of his approved religious vegan diet.

In Jones v. North Carolina Department of Public Safety, 2018 U.S. Dist. LEXIS 182150 (WD NC, Oct. 23, 2018), a North Carolina federal district court dismissed a Muslim inmate's complaint that he was told to shave his beard before he could interview for a work release job.

Pakistan's Supreme Court Reverses Blasphemy Conviction of Asia Bibi

In a widely followed case, the Pakistan Supreme Court yesterday reversed the blasphemy conviction of Asia Bibi, a Christian woman who had been sentenced to death in 2010 for allegedly uttering derogatory remarks against the Prophet Muhammad. The statements were allegedly made after Bibi got into an argument with two Muslim women while picking berries in a field.  The Muslim women refused to accept water from Bibi because she was Christian. In Bibi v. The State, (Pak. Sup. Ct., Oct 31, 2018), a 3-judge panel concluded (in a 34-page opinion) that the charges against Bibi had not been adequately proven, since the lower courts relied on contradictory testimony and the trial court relied on a confession that was given under pressure.  Justice Nisar's majority opinion alluded to the misuse of blasphemy prosecutions in Pakistan:

[N]o one could be allowed to defy the name of the Holy Prophet Muhammad (صلى الله عليه وسلم ) and be left unpunished, but there is another aspect of the matter; sometimes, to fulfill nefarious designs the law is misused by individuals leveling false allegations of blasphemy. Stately, since 1990, 62 people have been murdered as a result of blasphemy allegations, even before their trial could be conducted in accordance with law.

Judge Khosa filed a 21-page concurring opinion, in which he observed:

It is ironical that in the Arabic language the appellant’s name Asia means ‘sinful’ but in the circumstances of the present case she appears to be a person, in the words of Shakespeare’s King Leare, “more sinned against than sinning”.

The Guardian reports on the decision and reactions to it:

By the afternoon, thousands of club-wielding demonstrators had blocked highways, burned tyres and pelted police with stones in major cities including Islamabad and Karachi.

Anti-Semitism Suit Against San Francisco State Dismissed

In Mandel v. Board of Trustees of the California State University, (ND CA, Oct. 29, 2018), a California federal district court dismissed an amended complaint charging that San Francisco State University tolerated, or even encouraged, anti-Semitic conduct. The court summarized its holding:

While I understand that these plaintiffs, and some other members of the Jewish or Israeli community in or around SFSU, feel deeply that SFSU has not done enough to curtail others’ anti-Semitic behaviors and to foster a better environment for Jewish and pro-Israeli students, the acts described in the SAC do not adequately allege a violation of federal anti-discrimination laws so that liability may be imposed on SFSU, its administrators, or its faculty.

San Francisco Chronicle reports on the decision.

Bodies of Pittsburgh Shooting Victims Handled According To Religious Law

The New York Times reported yesterday on the arrangements at the scene of the Pittsburgh synagogue massacre to assure that bodies of the victims were handled in conformity with Jewish religious law:

All night long, Jewish volunteers stood solemnly in the rain outside the Tree of Life synagogue, where 11 dead bodies lay inside, sealed off with yellow crime-scene tape. The deceased were not supposed to be left alone, according to Jewish tradition, from the moment of death until burial. So when the medical examiner removed the bodies at 5 a.m. Sunday, the volunteers were there to escort them to the morgue....

Once homicide investigators give them the all clear, they intend to meticulously clean the crime scene. They consider everything left behind to be sacred remains, to be preserved and buried with the bodies....

Although autopsies are generally avoided in Jewish tradition, there was no doubt that each of the bodies would need to be examined for evidence in the criminal case. Once the bodies were with the medical examiner, Mr. Wasserman [head of the burial society] ensured that a shomer, as the guard is called in Hebrew, was in the building to keep watch over them as they went through the process.

[Thanks to Steven H. Sholk for the lead.]

Hawaii Supreme Court Approves Manua Kea Telescope

In In re Thirty Meter Telescope at the Mauna Kea Science Reserve, (HI Sup. Ct., Oct. 30, 2018), the Hawaii Supreme Court affirmed the decision of the state's Board of Land and Natural Resources allowing a 30 meter telescope to be erected near the summit of Mauna Kea.  Native Hawaiian cultural practitioners believe that Mauna Kea should be kept in its natural state as a sacred manifestation of their ancestry. Hawaii's Constitution (Art. XII, Sec. 7) protects the cultural and religious rights of the descendants of Native Hawaiians. The Court's majority opinion by Justice McKenna upheld the agency's finding that while Native Hawaiian cultural practitioners use the summit of Mauna Kea, there is no evidence that they use the Thirty Meter Telescope Observatory site area and the Access Way. The Court also rejected appellants' RLUIPA challenge, holding that RLUIPA does not apply to the government's management of its own land. New York Times reports on the decision. [Thanks to  Kuliaikanu'u Petzoldt for the lead.]

DOJ Expands Hate Crime Resources

The Department of Justice today is concluding a two-day Law Enforcement Roundtable on Improving the Identification and Reporting of Hate Crimes. (Press release). In connection with the Roundtable it announced a new Hate Crimes website "designed to provide a centralized portal for the Department’s hate crimes resources for law enforcement, media, researchers, victims, advocacy groups, and other related organizations and individuals." Deputy Attorney General Rosenstein also announced a grant to the University of New Hampshire for a national survey on hate crime incidents and victimization. He also announced the extension of an existing technical assistance program to the prosecution and prevention of hate crimes.

Cert. Filed In Touro Synagogue Ownership Dispute

Last week a petition for certiorari (full text) was filed with the U.S. Supreme Court in Congregation Jeshuat Israel v. Congregations Shearith Israel, (cert. filed 10/22/2018). In the case, the U.S. 1st Circuit Court of Appeals held that Rhode Island's historic Touro Synagogue is owned by New York's Shearith Israel congregation. The court also concluded that a pair of historic silver Torah ornaments worth some $7 million are also owned by the New York congregation. (See prior posting.) Providence Journal reports on the petition for review.

Irish Voters Approve Elimination of Blasphemy As A Crime

In a referendum held last Friday, voters in Ireland approved removal from Sec. 40.6.1 of the Irish Constitution the language that makes blasphemy a crime.  As reported by BBC News, the vote was 64.85% voting in favor of decriminalizing blasphemy, and 35.15% against.  The removal of the language from the Constitution permits the Oireachtas to amend or repeal Sec. 36 of the Defamation Act of 2009 in order to eliminate blasphemy as a crime. (Background on referendum). See prior related posting.  [Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• Effie Fokas, The Legal Status of Religious Minorities: Exploring the Impact of the European Court of Human Rights, (Social Compass, 2017, 65(1), 25-42).
• Haniff Ahamat & Nasarudin Abdul Rahman, Halal Food, Market Access and Exception to WTO Law: New Aspects Learned from Indonesia — Chicken Products, (Asian Journal of WTO & International Health Law and Policy, Vol. 13, No. 2, pp. 355-373, September 2018).
• Wayne Barnes, The Paradox of Christian-Based Political Advocacy: A Reply to Professor Calhoun, (74 Wash. & Lee L. Rev. Online 489 (2018)).
• Helen M. Alvare, Is This Any Way to Make Civil Rights Law? Judicial Extension of 'Marital Status' Nondiscrimination to Protect Cohabitants, (Georgetown Journal of Law & Public Policy, Forthcoming).
• Paulo Pinto de Albuquerque & Andrea Scoseria Katz, Is Religion a Threat to Human Rights? Or is It the Other Way Around? Defending Individual Autonomy in the ECtHR's Jurisprudence on Freedom of Religion, (Religion and International Law: Living Together 277-293 (Robert Uerpmann-Wittzack, Evelyne La-grange, and Stefan Oeter eds. 2018)).
• Effie Fokas, The Secular Court?, (November 1, 2016).
• ZW Taylor, Sources of Free Speech in U.S. Higher Education: What the Law Tells Us, (September 27, 2018).
• Thomas Colby, The Other Half Of The Abortion Right, (20 University of Pennsylvania Journal of Constitutional Law 1043 (2018)).
• Pooja Dadhania, Deporting Undesirable Women, (9 UC Irvine L. Rev. 53 (2018)).

11th Amendment Dismissal Avoids Ruling On Free Exercise Challenge To Medicaid Rule

In Scott v. Virginia Department of Medical Assistance Services, (WD VA, Oct. 19, 2018), a Virginia federal district court dismissed on 11th Amendment grounds a suit challenging a state Medicaid rule that deny payment for in-home care services rendered by the parent of a minor child. Here the state refused to grant an exception to allow a child's stepfather to be paid as an attendant caregiver.  The child's mother had argued that her religious beliefs require that only a male relative can help bathe her son, that parents be the primary caretakers of their children, and that no male other than her husband, father, or brother be in the house alone with her. Avoiding a ruling on the merits, the court held:

Scott brought her suit against DMAS itself, rather than the appropriate state official charged with the specific duty of enforcing the contested DMAS policy. Thus, the Ex Parte Young exception does not apply, and her suit is barred regardless of the relief sought.

Prison Cannot Limit Participation In Native American Religious Ceremonies To Ethnic Native Americans

In Guardado v. Nevada, 2018 U.S. Dist. LEXIS 177365 (D NV, Oct. 16, 2018), a Nevada federal district court held that a Mexican-American inmate's free exercise rights protected by RLUIPA were violated when the Nevada prison system implemented a requirement of the Nevada Indian Commission that participation in Native American religious ceremonies in prison be limited to those of Native American heritage. Plaintiff had argued that no other religion requires inmates to show proof of their ethnicity to practice their beliefs. The court, concluding that it need not reach plaintiff's equal protection arguments since the practice violates RLUIPA, held:

Here, the Court is satisfied that Plaintiff's Native American religious beliefs are sincerely held. Further, AR 810 is a substantial burden on Plaintiff's free exercise as he is Mexican-American and cannot show that he is Native American or provide documentation that he is registered or affiliated with any recognized tribe.... Defendants have not shown that any safety or security issues are likely to arise from Plaintiff's participation in Native American religious ceremonies.

The court issued a preliminary injunction requiring  that defendants permit Ernest Guardado "to participate in Native American religious ceremonies with the Native American practitioners including sweat lodge, prayer circle, drum circle, smudging, sacred pipe, and access to the Native Indian grounds."

Charges Filed Against Accused Pittsburgh Synagogue Shooter

The U.S. Attorney's Office for the Western District of Pennsylvania announced tonight the charges that are being filed against the Pittsburgh, Pennsylvania synagogue shooter:

On Saturday, October 27, 2018, at 8:05 p.m., U.S. Magistrate Judge Robert C. Mitchell signed a criminal complaint charging Robert Bowers of Baldwin, Pa., with 29 counts setting forth federal crimes of violence and firearms offenses. The crimes of violence are based upon the federal civil rights laws prohibiting hate crimes. The FBI in Pittsburgh is leading the investigation."

The federal complaint alleges that Bowers committed the following crimes on or about October 27, 2018, in the Western District of Pennsylvania:

• Eleven counts of Obstruction of Exercise of Religious Beliefs Resulting in Death (18 U.S.C. §§ 247(a)(2) and 247(d)(1))

• Eleven counts of Use of a Firearm to Commit Murder During and in Relation to a Crime of Violence (18 U.S.C. §§ 924(c)(1)(A) and 924(j)(1)

• Four counts of Obstruction of Exercise of Religious Beliefs Resulting in Bodily Injury to a Public Safety Officer 18 U.S.C. §§ 247(a)(2) and 247(d)(3))

• Three counts of Use and Discharge of a Firearm During and in Relation to a Crime of Violence (18 U.S.C. §§ 924(c)(1)(A) and 924(iii))

UPDATE: The Pittsburgh Post-Gazette reports on state charges that have also been filed against Bowers:

Later Saturday, Pittsburgh police filed 11 counts of criminal homicide against Mr. Bowers, along with six counts of attempted homicide; six counts of aggravated assault and 13 counts of ethnic intimidation.

Government Brief To SCOTUS Says Title VII Does Not Ban Transgender Discrimination

On Wednesday, the Justice Department filed a brief (full text) with the U.S. Supreme Court arguing that Title VII of the 1964 Civil Rights Act does not cover discrimination against an individual based on gender identity. The brief follows the position taken by the Trump Administration in an Oct. 2017 Justice Department Memo.  The brief was filed in response to the petition for certiorari in R.G. and G.R. Harris Funeral Homes, Inc. v. EEOC, in which the U.S. 6th Circuit Court of Appeals held that a Michigan funeral home violated Title VII when it fired a transgender employee who was in the process of transitioning from male to female. (See prior posting.) The government's brief ultimately urges the court to hold the petition in this case pending its decision on whether to grant review in two other cases raising similar issues. NBC News reports on the DOJ brief. SCOTUS blog has links to all the briefs filed with the Supreme Court in the case.

Japanese Court Rejects Challenge To Prime Minister's Visit To Yasukuni Shrine

Kyodo News reports on a decision by a Japanese appellate court yesterday holding that a 2013 visit by Prime Minister Shinzo Abe to the Yasukuni Shrine did not violate the religious freedom of the 450 citizens who brought the lawsuit. The shrine honors millions of war dead, but also convicted war criminals, and the Prime Minister's visit, according to the plaintiffs heightened international tensions.  The court held that the visit did not interfere with plaintiffs' faith.

European Court Upholds Conviction For Calling Muhammad A Pedophile

As reported by the Daily Mail, in E.S. v. Austria, (ECHR, Oct. 25, 2018) the European Court of Human Rights ruled unanimously in a Chamber Judgment that Austria did not violate free speech protections of the European Convention on Human Rights, Sec. 10, when it convicted a speaker of disparaging religious precepts.  The speaker, a woman identified as E.S., made a statement disparaging Muhammad at a seminar titled “Basic information on Islam” presented at the right-wing Freedom Party Education Institute. Her presentation labelled Muhammad's marriage to Aisha as pedophilia  As summarized by the Court's Information Note on the decision, the Court held:

The applicant’s statements had been capable of arousing justified indignation given that they had not been made in an objective manner aimed at contributing to a debate of public interest, but could only have been understood as aimed at demonstrating that Muhammad was not a worthy subject of worship.... Presenting objects of religious worship in a provocative way capable of hurting the feelings of the followers of that religion could be conceived as a malicious violation of the spirit of tolerance, which was one of the bases of a democratic society....

The applicant had subjectively labelled Muhammad with paedophilia as his general sexual preference, while failing to neutrally inform her audience of the historical background, which consequently did not allow for a serious debate on that issue, and had thus made a value judgement without sufficient factual basis.... As to the applicant’s argument that a few individual statements had to be tolerated during a lively discussion, it was not compatible with Article 10 of the Convention to pack incriminating statements into the wrapping of an otherwise acceptable expression of opinion and deduce that this would render the statements, exceeding the permissible limits of freedom of expression, passable. Moreover, the applicant had been wrong to assume that improper attacks on religious groups had to be tolerated even if they were based on untrue facts.

Chamber judgments may be appealed to the Grand Chamber. [Updated to provide link to full text of decision. Thanks to Seth Tillman for the link.]

Suit Against Drag Queen Story Hour Dismissed

Last Friday a suit was filed in federal district court in Houston, Texas seeking to stop a city sponsored drag queen story hour that is scheduled for the Houston Public Library. Plaintiffs argued that the story hour violates their religious free exercise. (Houston Chronicle). Yesterday the court dismissed the suit in a four-sentence order, concluding that there is no basis for the requested relief. (Houston Chronicle).

Oral Arguments In 7th Circuit Challenge To Parsonage Allowance

Yesterday the U.S. 7th Circuit Court of Appeals heard oral arguments in Gaylor v. Peecher. (Audio recording of full oral arguments.) In the case, a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. (See prior posting.)  Courthouse News Service reports on the oral arguments.

D.C. Opens Investigation of Local Clergy Sexual Abuse Charges

The Washington Post reported yesterday that the office of the District of Columbia Attorney General has opened a civil investigation into charges of sexual abuse by Catholic clergy in the Diocese of Washington. Earlier this month, Pope Francis accepted the resignation of the Diocese's Archbishop Cardinal Donald Wuerl after controversy over his handling of abuse claims as head of the Pittsburgh (PA) Diocese. (See prior posting.) According to yesterday's Post report:

D.C. statutes allow the attorney general to subpoena documents and seek penalties against a nonprofit — up to and including dissolving it — if it “has exceeded or abused and is continuing to exceed or abuse the authority conferred upon it by law” or if it “has continued to act contrary to its nonprofit purposes.”

[Attorney General Karl] Racine said that any felony crimes his office discovers in the course of its probe would be forwarded to the U.S. attorney. Racine’s staff could also prosecute any violations of the District’s mandated reporting requirements — which would be misdemeanors — separately from the civil investigation.

9th Circuit Hears Oral Arguments In Challenge To Expanded Contraceptive Coverage Exemptions

Last week, the U.S. 9th Circuit Court of Appeals heard oral arguments in State of California v. Little Sisters of the Poor. (Video of full oral arguments). The case involves the appeal by a religious order (as an intervenor) of a nationwide preliminary injunction that a California federal district court issued blocking the Trump administration's Interim Final Rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. (See prior posting.) According to Courthouse News Service,  two of the three judges on the panel indicated during oral argument that they were inclined to lift the injunction. [Thanks to Blog from the Capital for the lead.]

UN Committee Says France's Anti-Niqab Law Violates Free Exercise Rights

The United Nations Human Rights Committee yesterday issued a press release on two decisions issued Oct. 22:

In two landmark decisions, the United Nations Human Rights Committee found that France violated the human rights of two women by fining them for wearing the niqab, a full-body Islamic veil....

The Committee found that the general criminal ban on the wearing of the niqab in public introduced by the French law disproportionately harmed the petitioners’ right to manifest their religious beliefs, and that France had not adequately explained why it was necessary to prohibit this clothing. In particular, the Committee was not persuaded by France’s claim that a ban on face covering was necessary and proportionate from a security standpoint or for attaining the goal of “living together” in society. 

The decisions (available only in French) are Hebbadj v. France and Yaker v. France.