Arizona Voters Repeal Expansion of School Voucher Program

In Arizona on Tuesday, voters repealed Senate Bill 1431 which expanded the state's Empowerment Scholarship Accounts to make all public school students eligible to apply. The vote on the measure, known as Proposition 305, was 67% in favor of repeal, 33% opposed to repeal. The program allows students with disabilities (and certain other students) to opt out of public schools and instead receive state funds for use in private schools or for home schooling.

Guam Archdiocese Plans Chapter XI Filing

Guam's Archdiocese of Agana announced yesterday that it plans to file for bankruptcy reorganization within the next 90 days. The Archdiocese said that this is the most expeditious way to handle sexual abuse claims. Guam Daily Post, reporting on the Archdiocese's announcement, says that more than 180 sexual abuse claims against the Archdiocese are pending.

Kim Davis Loses Re-election Bid

According to the Lexington Herald-Leader, in Rowan County, Kentucky on Tuesday, county clerk Kim Davis lost her re-election bid by some 650 votes. Davis garnered national attention in 2015 by her adamant refusal to sign marriage licenses for same-sex couples. (See prior posting).

Trump Administration Finalizes Broadened Contraceptive Mandate Exemptions

In two releases yesterday, the Health and Human Services Administration, jointly with the IRS and Department of Labor, issued final rules making permanent (with minor changes) the interim final rules issued last October expanding exemptions from the contraceptive coverage mandate under the Affordable Care Act. One release (full text) finalizes exemptions for various entities and individuals with religious objections to providing coverage for some or all contraceptive or sterilization methods. The other release (full text) finalizes exemptions for entities and individuals with moral objections to providing such coverage. The final rules will become effective on Jan. 14, 2019.  Last December, two federal district courts issued nationwide preliminary injunctions against enforcing the interim final rules. RNS reports on the new rules.

Third Circuit Hears Arguments In Challenge To Foster Care Non-Discrimination Requirement

Courthouse News Service reports on Tuesday's oral arguments in the U.S. 3rd Circuit Court of Appeals in Fulton v. City of Philadelphia. In the case, a Pennsylvania federal district court rejected Catholic Social Services challenges to the requirement that it not discriminate against same-sex couples in foster care placement. (See prior posting.)

Abortion Measures Defeated In Oregon; Approved In West Virginia

Oregon voters yesterday apparently defeated, by a vote of 37% yes and 63% no, a proposed state constitutional amendment (Oregon Measure 106) that would have prohibited the expenditure of public funds directly or indirectly for abortion, except when medically necessary or required by federal law. These figures are based on tabulation of 68% of the votes.

Voters in West Virginia yesterday approved, by a vote of 51.7% yes and 48.3% no, Amendment 1 which amends the state constitution to add language providing "nothing in this Constitution secures or protects a right to abortion or requires the funding of abortion."

Suit Seeks To Impose Vaccination Exemption On Religious School

VIN News reports on a suit filed last month in a New York state trial court by parents who are seeking to require a Jewish day school to grant their 4-year old son a religious exemption from immunization requirements.  Yeshiva Oholei Torah requires children to be immunized in order to attend, and the school does not recognize exemption requests. The suit apparently contends that the religious exemption provision in New York's Public Health Law Sec. 2164(9) is mandatory for schools. The section provides that the mandatory vaccination requirements of state law "shall not apply to children whose parent, parents, or guardian hold genuine and sincere religious beliefs which are contrary to the practices herein required, and no certificate shall be required as a prerequisite to such children being admitted or received into school or attending school." The trial court denied an emergency injunction in the case last month to the parents who claim their religious freedom is being infringed.. A hearing on a preliminary injunction will be held next week. Some four dozen measles cases have been confirmed among yeshiva students in New York and New Jersey. [Thanks to Avram Schwartz for the lead.]

Alabamans Approve 10 Commandments and Right To Life Amendments

Alabama voters yesterday approved two state constitutional amendments. By a margin of 78% to 22%, voters approved Amendment 1, officially described as follows:

First, it provides that a person is free to worship God as he or she chooses, and that a person’s religious beliefs will have no effect on his or her civil or political rights. Second, it makes clear that the Ten Commandments may be displayed on public property so long as the display meets constitutional requirements, such as being displayed along with historical or educational items. Amendment 1 also provides that no public funds may be used to defend this amendment in court.

Voters, by a margin of 59% to 41% approved Amendment 2, officially described as follows:

Amendment 2 provides that it would be the public policy of the state to recognize and support the importance of unborn life and the rights of unborn children, including the right to life; and to protect the rights of unborn children. Additionally, the amendment would make clear that the state constitution does not include a right to abortion or require the funding of an abortion using public funds.

The proposed amendment does not identify any specific actions or activities as unlawful. It expresses a public policy that supports broad protections for the rights of unborn children as long as the protections are lawful.

Faith-Based Groups Push Voters To The Polls In Today's Mid-Term Elections

RNS yesterday reported on the extensive get-out-the vote campaigns mounted by religious groups. Detailing many of the efforts, the report says in part:

Waves of religious groups are mustering passionate get-out-the-vote efforts in the final hours before the heated midterm elections, with clergy pushing the faithful to the polls in ways that stand to aid both Republicans and Democrats.

Convincing religious voters to cast ballots on Election Day on Tuesday (Nov. 6) is hardly a new phenomenon in American politics. But this year’s atypically heated midterm contests appear to have sparked unusually robust efforts by faith-based organizations to galvanize supporters and move the political needle in favor of their respective values, if not their preferred candidates.

Canadian Diocese Wins Suit Against Insurance Company That Refused Coverage For Abuse Victims

In Aviva Insurance Company of Canada v. L’Évêque catholique romain de Bathurst, (NB Court of Appeal, Oct. 18, 2018), the New Bunswick Court of Appeal held that the Catholic Diocese of Bathurst is entitled to $3.35 million damages against its insurance company that refused to cover amounts paid to victims of clergy sexual abuse. The court said in part:

While the underlying facts of this litigation are most disturbing, at its core this is a breach of contract case involving a diocese that, over the years, purchased general public liability insurance from an insurer, which, many years later, when claims were made, wrongfully denied coverage. The question on appeal is whether the diocese is entitled to damages for breach of contract in amounts that involve the costs of, and payments made through, a conciliation process the diocese set up as a result of its insurer’s denial of coverage....

The Diocese’s right to damages did not rest on it being legally obligated to make the conciliation payments. The correct legal test is one of reasonableness; the trial judge was bound to follow this test and determine whether the conciliation process and the resulting payments were a reasonable response to breach of contract. I conclude the actions of the Diocese did constitute a reasonable response, within the boundaries of the law, to Aviva’s wrongful denial of coverage.

CNS reports on the decision.

Pakistan Blasphemy Case Is Not Over As Government Agrees To Seek Another Review

As previously reported, last week Pakistan's Supreme Court 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. However hard-line Islamist opposition to the Court's decision has developed. CBS News reports:

Pakistan's top court acquitted Bibi on Wednesday of the charges carrying the death penalty, infuriating hard-line Islamists who held three days of nationwide protests demanding her execution. The enraged protesters torched scores of vehicles, blocked highways and attacked government and public property; a radical cleric also threatened to kill the three judges who acquitted Bibi. According to the Reuters news agency, Cleric Khadim Hussain Rizvi, who leads the Islamist Tehreek-e-Labbaik (TLP) party, had his Twitter account suspended on Monday for inciting violence.

The protests ended after the government agreed to impose a travel ban on Bibi and allow her case to be reviewed. A review petition was filed in the Supreme Court....

Earlier in the day, police said over 150 people were arrested on charges of arson, vandalism and violence during the protests.

Meanwhile, Al Jazeera reports that Bibi's lawyer has fled to the Netherlands after threats on his life.

Professor Sues Over Requirement To Address Students Using Their Preferred Pronoun

Yesterday a philosophy professor at Shawnee State University in Portsmouth, Ohio filed suit against the trustees and administrators at the school charging that they have violated his free exercise and free speech rights in the enforcement of the University's policy barring discrimination on the basis of gender identity.  The complaint (full text) in Meriwether v. Trustees of Shawnee State University, (SD OH, filed 11/5/2018) complains that University officials enforce university policies to require faculty to use the pronoun preferred by a student when addressing the student. Plaintiff, Prof. Nicholas Meriwether, asserts in part in his complaint:

85. Dr. Meriwether’s Christian faith governs the way he thinks about human nature, marriage, gender, sexuality, morality, politics, and social issues, and it causes him to hold sincerely-held religious beliefs in these areas.

86. Dr. Meriwether’s convictions concerning human nature, the purpose and meaning of life, and ethical standards that are to govern human conduct are drawn from the Bible.

87. Dr. Meriwether believes that God created human beings as either male orbfemale, that this gender is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.

88. Dr. Meriwether also believes he cannot affirm as true ideas and concepts that are not true, as this would violate Biblical injunctions against dishonesty and lying.

ADF issued a press release announcing the filing of the lawsuit.

Supreme Court Denies Cert. In Ministerial Exception Case

The U.S. Supreme Court today denied review in Grusgott v. Milwaukee Jewish Day School, Inc., (Docket No. 18-125, certiorari denied 11/5/2018). (Order List.)  In the case, the U.S. 7th Circuit Court of Appeals held that the ministerial exception applies to prevent a former Hebrew teacher in a Jewish day school from suing for her firing in violation of the Americans With Disabilities Act. (See prior posting.)

Ballot Issues To Watch In Tomorrow's Elections

Several ballot measures that may be of interest to Religion Clause readers will be voted on around the country tomorrow:

• Alabama Ten Commandments Amendment, Amendment 1
• Alabama State Abortion Policy Amendment, Amendment 2
• Oregon Ban Public Funds for Abortions Initiative
• West Virginia Amendment 1, the No Right to Abortion in Constitution Measure

Recent Articles of Interest

From SSRN:

• Elizabeth A. Brown & Inara Scott, Belief v. Belief: Resolving LGBTQ Rights Conflicts in the Religious Workplace, (American Business Law Journal, Forthcoming).
• John Melcon, Thou Art Fired: A Conduct View of Title VII's Religious Employer Exemption, (Rutgers Journal of Law and Religion, Forthcoming).
• Louis W. Hensler, Moses’ Restatement of Torts: Modern Principles of Justice and Efficiency in the Mishpatim, (October 10, 2018).
• Sohail Wahedi, Abstraction from the Religious Dimension, (Buffalo Human Rights Law Review, Vol. 24, No. 1, 2017-2018).
• Alisha Patton, Harris and Whole Woman’s Health Collide: No Funding Provisions Unduly Burden Reproductive Freedom, (Hastings Law Journal, Forthcoming).
• Sam Fox Krauss, Moral Market Design, (Kansas Journal of Law & Pubic Policy, Vol. 28, No. 2, 2019).
• Ji Ma, Funding Nonprofits in a Networked Society: Two Modes of Crowding Mechanism of Government Support, (July 17, 2018).
• Timothy M. Todd, Exogeneity vs. Endogeneity in Section 170’s Quid Pro Quo Test, (State Tax Notes, Vol. 90, pp. 37-44, Oct. 1, 2018; Tax Notes, Vol. 161, pp. 65-72, Oct. 1, 2018).

From SSRN (European and Australian Law):

• Eva Brems , Saïla Ouald Chaib & Katrijn Vanhees, 'Burkini' Bans in Belgian Municipal Swimming Pools: Banning As a Default Option, (Netherlands Quarterly of Human Rights, December 2018).
• Brett Crumley, & John Picton, Still Standing? Cy-près and Charitable Service Users in the First-tier Tribunal (Charity), (Conveyancer and Property Lawyer, (2018) 82 Conv 262 – 279).
• Ian Ramsay & Corinne Tan, Social Impact Bonds in Australia, (Journal of Banking and Finance Law and Practice, Vol. 29, No. 3, 2018, pp. 248-257).

From SSRN (Islamic Law):

• Fajri Muhammadin, Dian Agung Wicaksono, Almonika Sari & Ola Ayutama,  Lashing in Qanun Aceh and the Convention Against Torture: A Critical Appraisal, (Jurnal Media Syariah, Vol. 20, No. 1 (2018)).
• Vina Berliana Kimberly, Novita Dwi Lestari &  and Fajri Muhammadin, Incorporating Qawaidh Fiqhiyyah to the 'Principles of Law' Chapter in the Introduction to Jurisprudence Course in Indonesia's Legal Education, (Proceeding of the International Conference on Research in Islamic Education (ICRIE), Universiti Teknologi Malaysia, 2018).
• Nurizal Ismail, Fajri Muhammadin & Hanindito Danusatya, The Urgency to Incorporate Maqasid Shari’ah as an Eludication of ‘Benefit’ as a Purpose of Law in Indonesia’s Legal Education, (Proceeding of the 1st International Conference on Law, Technology, and Society (ICOLESS) 2018, Batu, Indonesia, October 24-25, 2018).

From SmartCILP:

• Logan A. Yelderman, Monica K. Miller & Alicia DeVault, Led By the Spirit: Integrating Social Science and Law to Better Understand the Impact of Jurors' Religious Beliefs, [Abstract], 9 Faulkner Law Review 227-249 (2018).
• John H. Calvert, The Absence of Religious Neutrality in K-12 Public Science Education, 12 Liberty University Law Review 571-662 (2018).
• Anton Sorkin, Make Law, Not War: Solving the Faith/Equality Crisis, 12 Liberty University Law Review 663-734 (2018).
• Shael Herman, The Acre Bible: Recasting Hebrew Scripture for Crusaders and the Christian Flock, 33 Tulane European & Civil Law Forum 75-100 (2018).

Recent Prisoner Free Exercise Cases

In Forehand v. Sapp, 2018 U.S. Dist. LEXIS 183729 (MD GA, Oct.26, 2018), a Georgia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 183990, Sept. 21, 2018) and permitted an inmate to move ahead with his complaint that he was required to choose between observing the Ramadan fast or the Nation of Islam December fast; he was not permitted to observe both.

In Butler v. California Department of Corrections, 2018 U.S. Dist. LEXIS 184220 (ND CA, Oct. 26, 2018), a California federal district court dismissed an inmate's complaint that his request for Nation of Islam videos be broadcast on the CTF system-wide television channel was denied and that there is not an NOI chaplain.

In Brown v. Semple, 2018 U.S. Dist. LEXIS 185456 (D CT, Oct. 30, 2018), a Connecticut federal district court allowed an inmate to move ahead with his free exercise complaint alleging that he was not allowed to have a Wicca bible that was sent to him. His Establishment Clause and equal protection complaints were dismissed without prejudice.

In Lane v. Avery, 2018 U.S. Dist. LEXIS 184649 (ED AR, Oct. 29, 2018), an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 185647, Oct. 11, 2018) and dismissed an inmate's complaint that he was deprived of his Bible while on "behavior control" and was prevented him from "fellowshipping" with other believers during holy days because he was kept in ad seg.

In Elias v. Kinross, 2018 U.S. Dist. LEXIS 185869 (ED CA, Oct. 29, 2018), a California federal magistrate judge allowed a Wiccan inmate to move ahead with his complaint that ink he was using for a religious ceremony was confiscated.

In Stewart v. Sheahan, 2018 U.S. Dist. LEXIS 186253 (WD NY, Oct. 29, 2018), a New York federal district court allowed a Muslim inmate to move ahead with his complaint that he was no provided Ramadan meals for four consecutive days.

In Simmons v. Gilmore, 2018 U.S. Dist. LEXIS 187293 (WD PA, Oct. 31, 2018), a Pennsylvania federal magistrate judge recommended dismissing without prejudice an inmate's complaint that his receiving only 3 haircuts in 10 months violated his Spiritual Scientist religious beliefs as to personal hygiene.

Supreme Court Agrees To Review Bladensburg Cross Case

The U.S. Supreme Court yesterday granted certiorari in two appeals stemming from the same 4th Circuit opinion. The petitions for review were granted in American Legion v. American Humanist Association (Docket No. 17-1717) and Maryland-National Capital Park and Planning Commission v. American Humanist Association (Docket No.  18-18). (Cert. granted, 11/2/2018). (Order List). In the case, the U.S. 4th Circuit Court of Appeal, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) The Circuit Court, by a vote of 8-6, then denied en banc review. (See prior posting). Here is the SCOTUS blog case page for the cases, with links to filings in the case.  WTOP News reports on the grant of review.

NYT Profiles Political Views of Young Evangelicals

The New York Times yesterday carried a long feature article on the political views of young Christian evangelicals. The article features interviews with six young evangelicals of different political affiliations.

South Korea's Supreme Court Recognizes Conscientious Objection To Military Draft

According to AFP, South Korea's Supreme Court yesterday-- by a vote of 9-4-- ruled that religious and moral beliefs are valid reasons to refuse the country's military conscription. The ruling, which overruled prior precedent, came in the case of a Jehovah’s Witness conscientious objector who had been convicted by lower courts. Refusing the draft has typically resulted in an 18-month prison term. Some 19,000 conscientious objectors have been jailed since 1950, with 96 currently in prison.

Free Exercise Defenses Rejected In Conviction of Temple Operator For Prostitution

In State of Arizona v. Elise, (AZ App., Nov. 1, 2018), an Arizona state appellate court upheld against free exercise defenses the conviction of the operator of the Phoenix Goddess Temple. Tracy Elise was convicted of money laundering, pandering, and operating the Temple as a house of prostitution.  The court rejected defendant's 1st Amendment defense, finding that the statutes under which defendant was convicted are neutral laws of general applicability.  It rejected defenses under the Arizona Free Exercise of Religion Act, finding that defendant "did not prove the sexual acts performed at the Temple were motivated by a religious belief, rather than for pecuniary gain."