Utah Legislature Repeals Ban On Fornication

On Wednesday, the Utah state legislature gave final passage to S.B.43 (full text) and sent it to the governor for his signature. The bill, which enacts several amendments to the state's Criminal Code includes a repeal of Sec. 76-7-104, Utah's prohibition on fornication.  Fox 13 News reports on the legislature's action. [Thanks to Scott Mange for the lead.]

House Passes Resolution Condemning Anti-Semitism, Islamophobia and Other Bigotry

Yesterday, the U.S. House of Representatives by a vote of 407-23 passed House Resolution 183 (full text) condemning anti-Semitism, anti-Muslim discrimination and bigotry against other minorities as contrary to the values that define the people of the United States. New York Times reports on the complicated history of the 7-page resolution, saying in part:

It started as a resolution condemning anti-Semitism. Then, anti-Muslim bias was added in. After that came white supremacy. And by the end, it cited “African-Americans, Native Americans, and other people of color, Jews, Muslims, Hindus, Sikhs, immigrants and others” victimized by bigotry.

The resolution condemning “hateful expressions of intolerance,” which passed the House by an overwhelming 407-to-23 vote Thursday afternoon, was as much a statement of Democrats’ values as their factionalism. Caught in the middle was Speaker Nancy Pelosi, who worked for days to quell the internal uproar that erupted after a freshman Democrat, Representative Ilhan Omar of Minnesota, insinuated that backers of Israel exhibit dual loyalty....

Republicans mocked its all-inclusive approach....  Some veteran Jewish Democrats, who had pushed for a measure that would solely condemn anti-Semitism, were equally dismayed.

Challenge to Florida City's Conversion Therapy Ban May Move Forward

In Vazzo v. City of Tampa, (MD FL, March 5, 2019), a Florida federal district court adopted a magistrate's recommendations (Jan. 30, 2019) concluding that plaintiffs had stated plausible free speech challenges, but dismissed plaintiffs' free exercise challenges, to Tampa, Florida's ban on providing conversion therapy to minors.  The court allowed plaintiffs to move ahead with claims that the ordinance is content-based, amounts to viewpoint discrimination and a prior restraint, and that it is unconstitutionally vague and overbroad.  It also allowed plaintiffs to move ahead with claims that the ordinance violates the right of their minor clients and constituents to receive information.  Plaintiffs also stated a plausible implied pre-emption claim under state law.

Ilhan Omar's Anti-Semitic Tropes Focus Debate

Vox yesterday posted a lengthy analysis of the growing expressions of anti-Semitism in the United States in an article titled The Ilhan Omar Anti-Semitism Controversy, Explained, saying in part:

It’s true that Omar’s comments on Israel keep falling into well-worn anti-Semitic tropes — and her defenders often prove too willing to paper this over and dismiss criticism from even progressive Jews as “smears.”

It’s also the case that Republican officials frequently call on anti-Semitic tropes and say worse about other minority groups without nearly so much bipartisan condemnation. Pushing for a House vote on anti-Semitism really did feel like unfairly singling out Omar — and whitewashing the GOP’s record in the process. That’s why progressives rallied to Omar’s defense, and why the Democratic leadership has been forced to reconsider its initial resolution.

In short, the entire situation is a mess — and an example of how difficult it is for Democrats to carry on an important conversation about anti-Semitism on the left without downplaying the far more pressing problem of anti-Semitism on the right.

3rd Circuit Hears Oral Arguments In Fair Housing Act Challenge To Sex-Segregated Pool Hours

On Tuesday, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Curto v. Country Place Condominium Association, Inc. (audio of full oral arguments). As reported by Courthouse News Service, at issue is whether a New Jersey condominium association's sex-segregated swimming pool hours, instituted to accommodate the condos' large Orthodox Jewish population, violate the federal Fair Housing Act.

Canadian Court Certifies Class In Sex Abuse Suit Against Jehovah's Witnesses

In Canada in a class action lawsuit against two Jehovah's Witness entities, a Quebec Superior Court has approved the certification of a class consisting of current or former Jehovah's Witnesses who allege they were sexually assaulted as minors in Quebec by either an elder of the religious group or a fellow member. As reported by CTV News, plaintiffs allege failure to protect and efforts to dissuade reporting to police authorities. A Jehovah's Witnesses spokesman said that the organization reports abuse allegations to authorities as required by the Youth Protection Act.

Convicted War Criminal Stripped of U.S. Naturalized Citizenship

In a press release issued yesterday, the Department of Justice announced that an Oregon federal district court last week revoked the naturalized U.S. citizenship of  Sammy Rasema Yetisen who had previously pleaded guilty in a Bosnian court to war crimes.  She returned to the United States after serving her five and a half year prison sentence in Bosnia.  According to DOJ:

Yetisen, 46, was part of an elite unit of the Army of the Republic of Bosnia and Herzegovina that attacked the village of Trusina in April 1993, in what is known as the Trusina massacre. The unit targeted Bosnian Croats who resided in the village because of their Christian religion and Croat ethnicity, killing 22 unarmed individuals including women and the elderly. Yetisen played a key role in the massacre, serving as part of a firing squad that lined up and executed six unarmed prisoners of war and civilians. Yetisen was admitted to the United States as a refugee before naturalizing in 2002. In her naturalization application, Yetisen indicated that she had never had any military service “in the United States or in any other place.”

New Trial Ordered After Juror Questions Defendant's Taking of Oath

In Davis v. Husain, (NJ App., March 1, 2019), a New Jersey state appellate court, in a hostile work environment case that has already wound its way to the state Supreme Court once, ordered a new trial.  At issue is a statement that was made by one of the jurors raising a question about the testimony of the defendant. The juror noted that defendant, a Hindu, had not placed his hand on the Bible when taking the oath. In earlier proceedings, it was shown that the defendant had acted in this way, at least in part, because of his religious belief that the left hand should never be placed on a holy book.  In ordering a new trial, the appeals court said in part:

The juror's comment regarding the Bible raises the specter of religious bigotry. Whether that concern colored the view of the other jurors is still unknown, with the exception of the juror who appeared. This is a peculiar situation. The Law Division judge said the juror who made the observation was only concerned with Husain's credibility, i.e. that a person who refused to place his hand on the Bible was incapable of taking the oath seriously and was therefore incredible. He contrasted this with out-and-out religious bigotry. But if he was correct, that too is simply impermissible. The exercise of a person's religion should not make him or her per se incredible.

NJ.com reports on the decision.

Colorado and Masterpiece Cakeshop Agree To End Their Litigation

In a press release yesterday, the Colorado Attorney General's Office announced that the state and Masterpiece Cakeshop have agreed to end their battle over the right of a bakery owner to refuse to design cakes celebrating LGBT events. As previously reported, while the U.S. Supreme Court appeal involving Masterpiece Cakeshop owner Jack Phillip's refusal to design a cake for a same-sex wedding ceremony was pending, another customer, Autumn Scardina, sought a cake from Masterpiece Cakeshop to celebrate her gender transition. Phillips refused and the Commission issued a probable cause determination.  In response, Phillips filed a federal lawsuit claiming that the Commission was targeting him in violation of his constitutional rights.  In yesterday's announcement, the state said:

Under the terms of the agreement, the Colorado Civil Rights Commission will voluntarily dismiss the state administrative action against Masterpiece Cakeshop and its owner, Jack Phillips, and Mr. Phillips will voluntarily dismiss his federal court case against the State.... This agreement does not affect the ability of Autumn Scardina ... to pursue a claim on her own.

“After careful consideration of the facts, both sides agreed it was not in anyone’s best interest to move forward with these cases. The larger constitutional issues might well be decided down the road, but these cases will not be the vehicle for resolving them. Equal justice for all will continue to be a core  value that we will uphold as we enforce our state’s and nation’s civil rights laws,” said [Attorney General] Weise...

ADF, which represents Phillips, issued a press release yesterday saying that the dismissal of litigation comes "in the wake of newly discovered evidence of the state’s ongoing hostility toward religious freedom."

Vatican To Open Pius XII Archives

In a speech yesterday to to superiors, employees and collaborators of the Vatican Secret Archive, Pope Francis announced that he is opening the Vatican Archives for the reign of Pope Pius XII.  The records will become available next year. Pius XII has been criticized for what has been seen by some as a lack of action to oppose the Holocaust. (Background.) In his speech (full text and report from Zenit), Pope Francis said in part:

The figure of that Pontiff, who found himself guiding the Barque of Peter at one of the saddest and darkest moments of the twentieth century, agitated and lacerated by the last world war, with the consequent period of reorganization of the nations and post-war reconstruction, has already been investigated and studied in many aspects, sometimes discussed and even criticized (it could be said with some prejudice or exaggeration)....

The Church is not afraid of history; rather, she loves it, and would like to love it more and better, as God does! So, with the same trust of my predecessors, I open and entrust to researchers this documentary heritage.

[Thanks to Tom Rutledge for the lead.] 

Supreme Court Denies Cert. In Case On Preservation Grants To Churches

The U.S. Supreme Court today denied review in the companion cases of Morris County Board of Chosen Freeholders v. Freedom From Religion Foundation, (Docket No.18-364) and Presbyterian Church in Morristown v. Freedom From Religion Foundation, (Docket No. 18-365) (certiorari denied 3/4/2019). (Order List [scroll to pg. 9]).  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.  That clause (Art. I, Sec. 3) provides that no person shall be obliged to pay taxes for building or repairing any church. The New Jersey Supreme Court concluded that there is no implied exception to this prohibition for historical preservation, and that this is consistent with the Free Exercise Clause of the U.S. Constitution. (See prior posting.)  In the U.S. Supreme Court today, Justice Kavanaugh, joined by Justices Alito and Gorsuch, filed a statement concurring in the denial of review, but contending that:

the decision of the New Jersey Supreme Court is in serious tension with this Court’s religious equality precedents.

However they agreed that certiorari should be denied in this case both because of unclear factual details and because

there is not yet a robust post-Trinity Lutheran body of case law in the lower courts on the question whether governments may exclude religious organizations from general historic preservation grants programs.

City Settles Firefighter's Religious Discrimination Suit

The city of Utica, New York has settled a religious accommodation lawsuit that was filed against it by a firefighter who refuses to cut his hair after taking a Nazirite vow.  Under the settlement announced Friday, firefighter John Brooks has been granted a religious accommodation from the fire department's grooming policy. A press release from First Liberty announced the settlement. First Liberty's website has more on the case.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Christian Legislative Prayers and Christian Nationalism, (Washington and Lee Law Review, Vol. 75, 2019).
• Nathan B. Oman, Civil Disobedience in Latter-Day Saint Thought, (William & Mary Law School Research Paper No. 09-388, 2019).
• William Nichol Eskridge, Robin Fretwell Wilson & Andrew M. Koppelman, The Joys of Mutual Contempt, (Chapter 9 in: Religious Freedom, LGBT Rights and the Prospects for Common Ground, (William N. Eskridge & Robin Fretwell Wilson 2018)).
• William Nichol Eskridge, Robin Fretwell Wilson & Alan Edward Brownstein, Choosing among Non-Negotiated Surrender, Negotiated Protection of Liberty and Equality, or Learning and Earning Empathy, (Chapter 9 of Religious Freedom, LGBT Rights and the Propects for Common Ground, (William N. Eskridge & Robin Fretwell Wilson 2018)).
• Scott R. Bauries, The Logic of Speech and Religion Rights in the Public Workplace, 19 Marquette Benefits and Social Welfare Law Review 137 (2018).
• Barry Sullivan, Prophesy, Public Theology, and Questions of Justice: Some Modest Reflections, (February 11, 2019).
• Mark Leeming, Injunctions Restraining Enforcement of 'Muslim Ban' Executive Orders, (Australian Law Journal, Vol. 91, 2017, pp 443-447).
• William Nichol Eskridge, Robin Fretwell Wilson & David Saperstein, Masterpiece Cakeshop: Impact on the Search for Common Ground, (Chapter 34 in: Religious Freedom, LGBT Rights and the Prospects for Common Ground (William N. Eskridge & Robin Fretwell Wilson 2018).

From SSRN (International and Comparative Law):

• Asli U. Bali & Hanna Lerner, Religion and Constitution Making in Comparative Perspective, (Chapter written for: Handbook on Comparative Constitution Making, Edited by David Landau and Hanna Lerner, Edward Elgar (2019 Forthcoming).
• Craig B. Mousin, ‘Can One Still Call It Ignorance or Bias? Nexus Test Modified, but Courts Still Fail to Address International Law Under the International Religious Freedom Act’, (Migration and Religious Freedom, Essays on the Interaction Between Religious Duty and Immigration Law, Carolus Grütters & Dario Dzananovic (eds), (Wolf Legal Publishers, Nijmegen, the Netherlands, 2018).
• Beth A. Simmons & Anton Strezhnev, Human Rights and Human Welfare: Looking for a ‘Dark Side’ to International Human Rights Law, (In: The Future of Human Rights 60-87 (Jack Snyder et al. eds., Cambridge University Press, 2018).
• Stijn Smet, Free Speech versus Religious Feelings, the Sequel: Defamation of the Prophet Muhammad in E.S. v Austria, (European Constitutional Law Review, Forthcoming).

From SmartCILP;

• Theresa Finley & Mark Koyama, Plague, Politics, and Pogroms: The Black Death, the Rule of Law, and the Persecution of Jews in the Holy Roman Empire, [Abstract], 61 Journal of Law & Economics 253-277 (2018).
• David Nimmer, Miriam's Oasis, 34 Touro Law Review 983-993 (2018).
• Alexander B. Traum, Applied Anti-Semitism: The BDS Movement and the Abuse of Corporate Social Responsibility, 34 Touro Law Review 1025-1060 (2018).
• Donald L. Beschle, Are Two Clauses Really Better Than One? Rethinking the Religion Clause(s), 80 University of Pittsburgh Law Review 1-32 (2018).
• Kristen Stilt, Salma Waheedi & Swathi Gandhavadi Griffin, The Ambitions of Muslim Family Law Reform, 41 Harvard Journal of Law & Gender 301-342 (2018).
• Allan W. Vestal, Religious State Constitution Preambles, 123 Pennsylvania State Law Review 151-190 (2018).

Recent Prisoner Free Exercise Cases

In Ollie v. Atchison, 2019 U.S. App. LEXIS 5439 (7th Cir., Feb. 25, 2019), the 7th Circuit affirmed dismissal of an inmate's claim that he was denied access to congregative religious services.

In Franklin v. Arguello, 2019 U.S. Dist. LEXIS 24469 (D NV, Jan. 14, 2019), a Nevada federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 25065, Jan. 7, 2019) and refused to dismiss an inmate's complaint that he was not allowed to participate in group Christian worship services and receive communion.

In Missouri v. Vansickle, 2019 U.S. Dist. LEXIS 23246 (WD MI, Feb. 13, 2019), a Michigan federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 25071, Jan. 23, 2019) and denied injunctive relief but permitted a Nation of Islam inmate to move ahead with his damages claim for refusal to accept his late sign-up for Ramadan meals.

In Stewart v. Richardson, 2019 U.S. Dist. LEXIS 26893 (SD NY, Feb. 19, 2019), a New York federal district court dismissed an inmate's complaint that his Arabic texts and his "Complete Book of Witchcraft" were confiscated.

In Cary v. Mox, 2019 U.S. Dist. LEXIS 26578 (ED MI, Feb. 20, 2019), a Michigan federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 27531, Jan. 22, 2019) and denied summary judgment, dismissing some of the claims, to a former inmate now on parole who asserted that his Native American medicine bag was desecrated in a search.

In Petersen v. Fresno County Sheriff's Office, 2019 U.S. Dist. LEXIS 27928 (ED CA, Feb. 20, 2019), a California federal magistrate judge recommended dismissing an inmate's complaint that his Sikh head covering was confiscated on two occasions.

In Dewitt v. Johnson, 2019 U.S. Dist. LEXIS 28493 (ND OH, Feb. 22, 2019), an Ohio federal district court dismissed an inmate's complaint that as a member of Disciple of Akrah he was discriminated against and denied a headband and scroll bag.

In Lane v. Tavares, 2019 U.S. Dist. LEXIS 28511 (MD PA, Feb. 21, 2019), a Pennsylvania federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that he was denied accommodation for his medical condition that he sought so he could access Friday prayers that were on a different floor of the prison.

In Love v. Price, 2019 U.S. Dist. LEXIS 29287 (ED MO, Feb. 25, 2019), a Missouri federal district court dismissed an inmate's claim that for two months he was forced to eat food that violated his religious diet.

In Ha'Keem v. Mesojedec, 2019 U.S. Dist. LEXIS 30328 (D MN, Feb. 26, 2019), a Minnesota federal district court rejected in part a magistrate's recommendation (2019 U.S. Dist. LEXIS 31083, Jan. 16, 2019) and allowed Muslim civil sex-offender detainees to move ahead on their claim that their facility's prayer oil policy violates their free exercise rights. However the court adopted other parts of the magistrate's recommendation and dismissed claims regarding religious discussions, cross-gender pat down searches, prayer rugs, prayer space and access to religious services.

Anti-Muslim Display In West Virginia Capitol Sparks Controversy

WV News and NBC News report on an anti-Muslim display and pamphlets set up in the West Virginia Capitol Rotunda as part of "WVGOP Day" by the organization ACT for America. According to NBC:

The display featured a picture of the World Trade Center in New York City as a fireball exploded from the one of the Twin Towers, set above a picture of Democratic Rep. Ilhan Omar, who is Muslim.

"'Never forget' - you said. . ." read a caption on the first picture. "I am the proof - you have forgotten," read the caption under the picture of Omar, who is wearing a hijab....

Several Democrats strongly objected to the display, and got into an argument with the House's sergeant at arms, Anne Lieberman, who allegedly remarked that "All Muslims are terrorists." Lieberman resigned Friday night.  Republican House speaker Roger Hanshaw issued a statement saying in part:

The West Virginia House of Delegates unequivocally rejects hate in all of its forms.

Pence To CPAC On Religious Liberty

On Friday, Vice President Pence addressed the 2019 CPAC Convention (full text of remarks). A portion of his 30-minute speech addressed religious liberty.  The Vice President said in part:

You know, the freedom of religion is not just enshrined in our Constitution; it’s enshrined in the hearts of the American people.  But make no mistake about it: Freedom of religion is under attack in our country.  Lately, it’s actually become fashionable for media elites and Hollywood liberals to mock religious belief.

My own family recently came under attack just because my wife Karen went back to teach art to children at a Christian school....

But let me be clear on this point: This is not about us.  It’s about all of you.  It’s about the sincerely held belief of millions of Americans who cherish their Christian faith and Christian education.  And so I’ll make you a promise: Under this President and this administration, we will always stand with people of faith.  We will always defend the freedom of religion of every American of every faith, so help us God.  (Applause.)

And as we reflect on our God-given liberties, I got to tell you, I couldn’t be more proud to serve as Vice President to the most pro-life President in American history.  (Applause.)

Since the first days of this administration, President Donald Trump has stood without apology for the sanctity of human life.  In one of his very first acts, the President reinstated the Mexico City Policy, preventing taxpayer dollars from funding abortion or abortion providers around the world.  And here at home, President Trump signed a law to allow all 50 states to defund Planned Parenthood.  (Applause.)  Life is winning in America once again.

But for all the progress we’re making — tragically, at the very moment that more Americans than ever before are embracing the right to life, leading members of the Democratic Party are embracing a radical agenda of abortion on demand.

Reporting On Cardinal Pell Conviction Is Examined

Get Religion published a piece today examining media coverage of the child sex abuse charges against Australia's Cardinal George Pell, as well as the outcome of his trial.  Reporter Julia Duin begins her report as follows:

I hadn’t been following the child abuse charges against Australian Cardinal Pell all that much because I assumed, based on the evidence, that they were somewhat plimsy and would never stick.

But they did — in a series of trials that are as odd as they come. At the heart of the proceedings there was a single witness and what appeared to be “recovered memories” of abuse. 

The end result? A cardinal is now in jail and a bunch of journalists have been handed the Aussie equivalent of contempt-of-court charges.

(See prior related posting.) Perth Now reports on Pell's appeal of his conviction.

Challenge To Treatment of Hinduism In California Curriculum Fails

In California Parents for the Equalization of Educational Materials v. Torlakson, (ND CA, Feb. 28, 2019), a California federal district court dismissed the claim that California public schools' History-Social Science Content Standards adopted in 1998 and its History-Social Science Framework adopted in 2016 violate the Establishment Clause by demonstrating hostility toward Hinduism.  Plaintiffs contended that the discussion of Hinduism only from a secular perspective, over-emphasis on the caste system, adoption of the Aryan Invasion Theory and the description of Hinduism's treatment of women all denigrate Hinduism. They also object to the input of SAFG, a group of academics who they describe as anti-Hindu. The court concluded however:

[E]ven if there is some evidence by which a reasonable person could infer a disapproval of Hindu religious beliefs—an excessive discussion of caste, for example, or a failure to be fully transparent about coordination with SAFG—that is not enough to conclude that the primary message of the Standards and Framework is disparagement.

Courthouse News Service reports on the decision.

Canadian Suit Challenges Failure of Hasidic Schools To Follow Provincial Curriculum

CBC reports that a trial date has been set for a year from now in a case filed in 2015 challenging the failure of Hasidic Jewish schools to comply with the curriculum set by education authorities in the Canadian province of Quebec. Plaintiff Yohanen Lowen and his wife Shifra allege that when Yohanen graduated high school at age 18, he could barely add and subtract, he could not read and write in English or French, and he was unequipped to find employment. The lawsuit was brought against both the Quebec Education Ministry and Hasidic schools in a secluded ultra-Orthodox community near Montreal.

9th Circuit: Suit Against FBI For Anti-Muslim Surveillance May Move Ahead

In Fazaga v. Federal Bureau of Investigation, (9th Cir., Feb. 28, 2019), the U.S. 9th Circuit Court of Appeals in a 103-page opinion held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. The court in a lengthy summary of its holdings said in part:

Addressing plaintiffs’ claims arising from their allegations that they were targeted for surveillance solely because of their religion, the panel first held that the First Amendment and Fifth Amendment injunctive relief claims against the official-capacity defendants may go forward. Second, concerning plaintiffs’ Bivens claims seeking monetary damages directly under the First Amendment’s Establishment and Free Exercise Clauses and the equal protection component of the Fifth Amendment’s Due Process Clause, the panel concluded that the Privacy Act and the Religious Freedom and Restoration Act (“RFRA”), taken together, provided an alternative remedial scheme for some, but not all, of their Bivens claims....  Fourth, concerning plaintiffs’ claims that Agent Defendants and Government Defendants violated RFRA by substantially burdening plaintiffs’ exercise of religion, and did so without a compelling government interest without the least restrictive means, the panel held that it was not clearly established in 2006 or 2007 that defendants’ covert surveillance violated plaintiffs’ freedom of religion protected by RFRA. The panel affirmed the district court’s dismissal of the RFRA claim as to the Agent Defendants because they were not on notice of a possible RFRA violation.

UPDATE: Los Angeles Times reports on the decision.