USCIRF Issues Fact Sheet On Prosecution of Mass Atrocity Crimes

The U.S. Commission on International Religious Freedom this month issued a Legislation Factsheet on Prosecution of Mass Atrocity Crimes. The document sets out definitions of crimes against humanity, genocide and war crimes, and discusses the courts in which such crimes can be prosecuted.

Teacher Sues Archdiocese For Directing Catholic High School To Fire Him Over Same-Sex Marriage

Catholic Herald reported yesterday on a lawsuit filed against the Archdiocese of Indianapolis by Joshua Payne-Elliott, a former teacher at Cathedral High School. The suit charges interference with the teacher's professional relationship with the school. The Archdiocese directed the high school to terminate Payne-Elliott's contract after he entered a same-sex marriage. The school made it clear it was following the directive in order to avoid the Archdiocese withdrawing recognition of the school as Catholic. One day before filing his lawsuit against the Archdiocese, the teacher reached what was apparently a friendly settlement with Cathedral High School. The school is helping him find a new teaching position. In response to the lawsuit, the Archdiocese issued this statement:

In the Archdiocese of Indianapolis’ Catholic schools, all teachers, school leaders and guidance counselors are ministers and witnesses of the faith, who are expected to uphold the teachings of the Church in their daily lives, both in and out of school. Religious liberty, which is a hallmark of the U.S. Constitution and has been tested in the U.S. Supreme Court, acknowledges that religious organizations may define what conduct is not acceptable and contrary to the teachings of its religion, for its school leaders, guidance counselors, teachers and other ministers of the faith.

Vatican Waives Diplomatic Immunity of Apostolic Nuncio In France

La Croix reports:

The Vatican has officially waived the diplomatic immunity of the Apostolic Nuncio in France, Archbishop Luigi Ventura, allowing him to appear before a civil court where six complainants have accused him of sexual assault.

This decision, unprecedented in the history of modern Vatican diplomacy, was communicated last week to the French authorities by the Secretariat of State of the Vatican.

Man Sentenced To 30 Months For Religiously Motivated Hate Crime

The Department of Justice announced this week that Ohio resident Izmir Koch was sentenced to 30 months in prison after his conviction for carrying out a religiously motivated assault on a Jewish man. Koch was found guilty last December of violating the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, and of lying to the FBI about his role in the assault.

Settlement Reached In Discrimination Suit Against Michigan Chautauqua Village

Petoskey News-Review reports that a settlement has been reached in a lawsuit against the Michigan village of Bay View that was established in 1875 as part of the United Methodist Church's Chautauqua movement.  In 2017, a federal lawsuit was filed challenging provisions in the Bay View Association's rules that limited cottage ownership to practicing Christians, as well as the requirement that a majority of the Association board be Methodists.  (See prior posting.) Later the Justice Department joined the lawsuit.  In 2018, the provision limiting ownership to Christians was eliminated. (See prior posting.) However plaintiffs also objected to other provisions favoring Christians. 

In the settlement reached in May, but which must still be approved by the court, Bay View Association will retain its status as a religious organization, but will need to file for its tax exempt status separately rather than through the United Methodist Church. It will end the requirement that a majority of its board be Methodists.  The Association will also eliminate provisions in its bylaws that require members to "respect the principles of the United Methodist Church" and support Bay View's mission. Instead, the bylaws will be amended to read that members must "respect and preserve the history and values of the Association," which includes acting "in a manner consistent with Christian values." Finally, Bay View, through its insurers, will pay $75,000 in plaintiffs' legal fees.  The Justice Department will monitor compliance with the settlement for five years.

Suit Challenges Repeal Of New York's Religious Exemption From Vaccination

A class action lawsuit was filed yesterday in a New York state trial court seeking to enjoin the state's recently enacted repeal of the religious exemption from requirements for vaccination of school children. The complaint (full text) in F.F. v. State of New York, (Albany Cty. Sup. Ct., filed 7/10/2019), was filed on behalf of 55 families of various religions who previously were granted religious exemptions.  A number of plaintiffs were families sending their children year-around to Orthodox Jewish yeshivas. The complaint alleges that the exemption repeal was enacted based on active hostility to freedom of religion and is not supported by empirical evidence that unvaccinated minors holding religious exemptions played any part in the recent spread of measles in the state. The complaint went on to allege:

the process by which the New York State Legislature adopted the repeal belies any sense that a public health emergency justified this action; that the repeal violates the Equal Protection Clause because the legislature has concurrently retained the medical exemption and the religious exemption for students enrolled in higher education and allowed unvaccinated staff in both public and private schools in New York .... [F]inally the Court should find ... that the repeal compels speech and acts repugnant to plaintiffs’ religious beliefs....

Plaintiffs also filed a brief (full text) in support of their request for a temporary restraining order.  Albany Times Union reports on the lawsuit. Children's Health Defense issued a press release with links to additional pleadings in the case.

Pastor Claims Retaliation For Ministering To Migrants

Rev. Kaji Douša, senior pastor of New York City's Park Avenue Christian Church, has filed suit against the federal government claiming that she has been targeted for ministering to migrants at the southern border and in Mexico.  The complaint (full text) in Dousa v. U.S. Department of Homeland Security, (SD CA, filed 7/8/2019) alleges in part:

11. In New York, regional ICE officials tracked rallies and prayer vigils led by Pastor Dousa on a list that the officials compiled of so-called “Anti-Trump Protests.” These officials marked Pastor Dousa for surveillance because she prayed with and for immigrants, and because she generated publicity about the devastation that ICE’s enforcement activities rain on immigrants and their families.

12. Then, in January, Defendants detained Pastor Dousa as she attempted to re-enter this nation, her nation, after a day in Tijuana ministering to migrants and their advocates. Border agents interrogated Pastor Dousa about her pastoral work.... They revealed to Pastor Dousa that they had collected detailed information about her and her pastoral work. And they revoked the access she had previously been granted to expedited border crossing.

13. Pastor Dousa’s name is included in a secret government database of journalists, attorneys, immigrant-rights activists, and others targeted for their work with and for migrants....

Alleging violations of the First Amendment and RFRA, the complaint explains:

Defendants’ targeting of Pastor Dousa impedes her ministry, through and through. It burdens her ability to continue answering God’s call to minister to migrants and refugees, which cannot happen without confidence in  confidentiality.... Defendants’ targeting of Pastor Dousa has further forced her to take steps contrary to her faith and to forgo activities that her faith requires, including all but ending her ministry of pastoral care at the Southern Border....

Religion News Service reports on the lawsuit.

Trump's Proposed Tariffs On China Will Impact The Cost of Bibles

AP reports that the Trump Administration's proposed 25% tariffs on imports from China will make Bibles more expensive and impact Christian evangelical organizations that give away Bibles as part of their religious activity. Imposition of those tariffs is now on hold as trade negotiations have resumed. Over half of the Bibles printed worldwide come from China where printers have adapted to the specialized printing requirements needed for production. It is estimated that 150 million Bibles are printed in China each year and that some 20 million are sold each year in the United States. Bible publishers have told the U.S. Trade Representative that the printing of books does not involve technology that is at risk of theft by China.

11th Circuit: County's Invocation Policy Violates Establishment Clause

In Williamson v. Brevard County, (11th Cir., July 8, 2019), the U.S. 11th Circuit Court of Appeals held that the method used by the Brevard County, Florida Board of County Commissioners to select individuals to deliver pre-meeting invocations violates the Establishment Clause.  The Board's formal resolution provides:

Secular invocations and supplications from any organization whose precepts, tenets or principles espouse or promote reason, science, environmental factors, nature or ethics as guiding forces, ideologies, and philosophies that should be observed in the secular business or secular decision making process involving Brevard County employees, elected officials, or decision makers including the Board of County Commissioners, fall within the current policies pertaining to Public Comment and must be placed on the Public Comment section of the secular business agenda. Pre-meeting invocations shall continue to be delivered by persons from the faith-based community in perpetuation of the Board’s tradition for over forty years.

The court said in part:

In this case, Brevard County has selected invocation speakers in a way that favors certain monotheistic religions and categorically excludes from consideration other religions solely based on their belief systems. Brevard County’s process of selecting invocation speakers thus runs afoul of the Establishment Clause.

Florida Today reports on the decision.

Pompeo Announces New Commission on Inalienable Rights

Secretary of State Mike Pompeo announced today that he has created a Commission on Inalienable Rights which, he says, will engage in "one of the most profound reexaminations of the unalienable rights in the world since the 1948 Universal Declaration." He intends that the Commission engage in "an informed review of the role of human rights in American foreign policy."

His statement sets out the reasons for creation of the new Commission:

Today the language of human rights has become the common vernacular for discussions of human freedom and dignity all around the world, and these are truly great achievements.

But we should never lose sight of the warnings of Vaclav Havel, a hero of the late-20th-century human rights movement, that words like “rights” can be used for good or evil; “they can be rays of light in a realm of darkness … [but] they can also be lethal arrows.” ...

It’s a sad commentary on our times that more than 70 years after the Universal Declaration of Human Rights, gross violations continue throughout the world, sometimes even in the name of human rights. International institutions designed and built to protect human rights have drifted from their original mission. As human rights claims have proliferated, some claims have come into tension with one another, provoking questions and clashes about which rights are entitled to gain respect.

Pompeo outlined the issues he wants the new Commission to tackle:

I hope that the commission will revisit the most basic of questions: What does it mean to say or claim that something is, in fact, a human right? How do we know or how do we determine whether that claim that this or that is a human right, is it true, and therefore, ought it to be honored? How can there be human rights, rights we possess not as privileges we are granted or even earn, but simply by virtue of our humanity belong to us? Is it, in fact, true, as our Declaration of Independence asserts, that as human beings, we – all of us, every member of our human family – are endowed by our creator with certain unalienable rights?

The Commission will be chaired by Harvard Law School Professor Mary Ann Glendon.  Its other members include: Russell Berman, Peter Berkowitz, Paolo Carozza, Hamza Yusuf Hanson, Jacqueline Rivers, Meir Soloveichik, Katrina Lantos Swett, Christopher Tollefsen, and David Tse-Chien Pan.

Politico reports on the mixed reaction to Pompeo's announcement.

Recent Articles of Interest

From SSRN:

• Sharona Hoffman, Portable Medical Order Sets (POLST®): Ethical and Legal Landscape, (15 NAELA Journal 1 (Fall 2019)).
• Helen M. Alvare, Dialoguing with Paganism, (Journal of Catholic Legal Studies, Vol. 57, No. 1, pp. 57-61 (2019)).
• Nicholas Hunt, Let Us Pray: The Case for Legislator-Led Prayer, (Tulsa Law Review, Vol. 54, No. 49, 2018).
• Mannu Chowdhury, A Wall Between the 'Public' and the 'Private': A Comment on Highwood Congregation of Jehovah's Witnesses (Judicial Committee) v Wall, (Western Journal of Legal Studies, Vol. 9, No. 2, 2019).
• SpearIt, The Catholic Church Sex Scandal and the Dying Death Penalty: Issues at the Intersection of Religion, Crime, and Punishment, (Published in the State of Criminal Justice, 2019).
• Mohamed Abdelaal, Obergefell v. Hodges: Rethinking Justice Scalia's Originalism, (16 Dartmouth Law Journal 73 (2018)).
• Richard Schragger & Micah Schwartzman, Religious Antiliberalism and the First Amendment, (Virginia Public Law and Legal Theory Research Paper No. 2019-37).
• Hayat Khan, Historical Contribution of Islamic Waqf in Human Capital Development Through Funding Education, (Journal of Islamic & Religious Studies, The University of Haripur, 2018).
• Giancarlo Anello, Overpopulation and Sacred Law: The Wisdom of Islam and the Demographic Politics of Islamic Republic of Iran, (Calumet Intercultural Law and Humanities Review, 2019).

From SmartCILP:

• Shritha Vasudevan, A Gendered Refutation of Epiphenomenal Norms Through the Median Voter: A Case Study of India's CEDAW Compliance, 33 Emory International Law Review Rev. 223-258 (2019).
• Free Speech and Freedom of Religion. Eric Segall, moderator; Michael C. Dorf, Eugene Volokh, panelists. 35 Georgia State University Law Review 937-975 (2019).

5th Circuit Upholds Direct Supervision Requirement For Muslim Inmate Worship Services

In Brown v. Scott, (5th Cir., July 5, 2019), the U.S. 5th Circuit Court of Appeals in a 2-1 decision (56 pages long) written by Judge Owen held that a 1977 consent decree allowing Muslim inmates to gather for worship without direct supervision should be vacated. While Muslim inmates had met with only indirect supervision from 1977 to 2012, that arrangement was terminated after a Jehovah's Witness inmate successfully sued arguing that the more favorable treatment of Muslim inmates violates the Establishment Clause. The termination of the special treatment for Muslim inmates, however, violated the earlier consent decree. This led prison officials to ask that the earlier decree be vacated under provisions of the Prison Litigation Reform Act that allow lifting of the injunction if it is no longer needed to correct an ongoing violation of rights.

Muslim inmates argued that requiring direct supervision of their services would impose a substantial burden in violation of the Religious Land Use and Institutionalized Persons Act. The majority held, however, that it is not prison authorities that have imposed a substantial burden, but instead it is caused by a lack of Muslim volunteers from outside who will supervise services. The majority also rejected Free Exercise and Establishment Clause arguments.

The district court had concluded that Texas prison regulations favor Catholic, Jewish, Native American and Protestant inmates over Muslim inmates.  Judge Owen concluded that this does not create an Establishment Clause violation because in the prison context the more lenient Turner v. Safley test should be applied to Establishment Clause claims.

Judge King joined all of Judge Owen's opinion except for the Establishment Clause section. She held there was an Establishment Clause violation, but that the 1977 consent decree should be vacated nevertheless because it is broader than necessary to remedy the violation.

Judge Dennis in a separate opinion dissented as to the RLUIPA issue, and would not have reached the Establishment Clause or Free Exercise claims

German Court Says Sikhs Not Exempt From Motorcycle Helmet Law

DW reports that Germany's Federal Administrative Court has ruled that religious freedom objections are not sufficient to exempt Sikhs from Germany's law requiring motorcyclists to wear helmets. According to DW:

The Federal Administrative Court in Leipzig rejected a Sikh man's appeal, who had argued that the helmet would not fit over his turban.

"People wearing a turban on religious grounds are not for that reason alone exempt from the obligation to wear a helmet," the presiding judge, Renate Philipp, said, adding that the claimant has to accept this restriction to his freedom of religion, as it serves to uphold the rights of others, too....

The Leipzig court argued that the obligation to wear a helmet not only protects the driver but also keeps other drivers from being traumatized if they cause heavy injury to someone driving without a helmet.

The court also said a driver wearing a helmet would be better placed to help others in case of an accident.

Tunisia Bans Niqab In Government Buildings

Tunisia's Prime Minister yesterday signed a government circular banning the niqab, which covers the entire face except for the eyes, from government  offices.  As reported by  France24, this comes as part of efforts to heighten security after a double suicide bombing last month. The government fears that the niqab will be used as a disguises for terrorists.

SCOTUS Amicus Briefs Supporting Title VII Coverage of LGBTQ Discrimination Now Available

As previously reported, on Oct. 8 the Supreme Court will hear oral arguments in three cases posing the question of whether Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of sexual orientation or gender identity. Wednesday was the deadline for amicus briefs supporting the parties asserting that Title VII bars such discrimination. More than 40 amicus briefs have been filed, and may be found through links to them on the SCOTUSblog case pages: here. here and here. Amicus briefs supporting the position of the employers in the cases are due Aug. 23.

VA Issues New Policies On Religious Literature and Symbols At VA Facilities

In a News Release issued Wednesday, the U.S. Department of Veterans Affairs announced a new directive on Religious Symbols in VA Facilities and amendments to its directive on Spiritual and Pastoral Care in the Veterans Health Administration. According to the VA:

The new policies will:

• Allow the inclusion in appropriate circumstances of religious content in publicly accessible displays at VA facilities.
• Allow patients and their guests to request and be provided religious literature, symbols and sacred texts during visits to VA chapels and during their treatment at VA.
• Allow VA to accept donations of religious literature, cards and symbols at its facilities and distribute them to VA patrons under appropriate circumstances or to a patron who requests them.

The Hill reports on the policy changes. Earlier this year, suit was filed yesterday in New Hampshire federal district court against a VA Medical Center challenging a lobby display that includes a Bible. (See prior posting.)

Britain's Appeals Court: Christian Social Work Student Improperly Suspended For Anti-Gay Facebook Postings

In Ngole v. University of Sheffield, (EWCA, July 3, 2019), England's Court of Appeal held that the University of Sheffield had unfairly removed a Christian student from its Master of Social Work program after the student posted his views on Facebook that homosexuality and same-sex marriage are sins.  The postings, in response to the jailing in 2015 of Kentucky court clerk Kim Davis for refusing to issue same-sex marriage licenses, appeared on MSNBC's Facebook page. The Court, ordering a new disciplinary hearing by the University, summarized its conclusions in part as follows:

(10) The University wrongly confused the expression of religious views with the notion of discrimination. The mere expression of views on theological grounds (e.g. that ‘homosexuality is a sin’) does not necessarily connote that the person expressing such views will discriminate on such grounds. In the present case, there was positive evidence to suggest that the Appellant had never discriminated on such grounds in the past and was not likely to do so in the future (because, as he explained, the Bible prohibited him from discriminating against anybody).

(11) The University gave different and confusing reasons for suspending the Appellant. Initially, it was said (by the Fitness to Practice Committee) that he lacked “insight” into how his NBC postings might affect his ability to carry out “his role as a social worker”; and subsequently it was said (by the Appeals Committee) that he lacked “insight” into how his NBC postings “may negatively affect the public’s view of the social work profession”. Further, at no stage during the process or the hearings did the University properly put either concern as to perception to the Appellant during the hearings.

(12) The University’s approach to sanction was, in any event, disproportionate: instead of exploring and imposing a lesser penalty, such as a warning, the University imposed the extreme penalty of dismissing the Appellant from his course, which was inappropriate in all the circumstances.

The Guardian reports on the decision.

9th Circuit En Banc Temporarily Reinstates Injunctions On Trump Administration Family Planning Rules

According to an AP report, the U.S. 9th Circuit Court of Appeals yesterday voted to vacate the 3-judge panel's decision in State of California v. Azar, and to grant en banc review of whether the Trump Administration's new regulations on family planning grants may go into effect. The new rules bar recipients of family planning grants under title X from referring clients for abortions. They also ban clinics that receive Title X funds from sharing office space with abortion providers.  Three district courts had enjoined implementation of the new rules, but a 3-judge panel of the 9th Circuit had granted a stay of the injunctions. (See prior posting.) Yesterday's action reinstates the district court injunctions while the full 9th Circuit considers the issue.

2nd Circuit Gives Broad Reading To Allow Late Filing of Asylum Application

Normally an application for asylum must be filed within one year of an alien's arrival in the United States. However, an application filed later than that may be considered if the alien demonstrates changed circumstances that materially affect his or her eligibility for asylum.  In Yang v. Barr, (2d Cir., July 2, 2019), a woman born in China applied for asylum ten years after entering the United States on a tourist visa.  The application was filed less than a month after she converted to Christianity, and asserted two grounds for asylum-- fear of persecution because of her Christian religion and a forced abortion in China eight years before she entered the United States. In a 2-1 decision, the U.S. 2nd Circuit Court of Appeals held that the change of circumstances-- her religious conversion-- means that an immigration judge may now consider both her bases for asylum, not just the one related to the conversion.

Confrontation Clause Satisfied Even Though Muslim Witness Had Face Partly Covered

In Commonwealth of Pennsylvania v. Smarr, (PA Super., July 3, 2019), a Pennsylvania state appellate court held that the Confrontation Clauses of the U.S. and Pennsylvania constitutions were not violated when a trial court allowed the sole eye-witness to a murder to testify with a colorful scarf covering her mouth and nose. The witness, a Muslim, said that she wears a face covering on Fridays, when she goes to religious services, and whenever else she feels like it. She said she was wearing it to court out of concern for her safety. Focusing on the importance of protecting the witness' free exercise rights, the court said in part:

No precedent has established that a witness’s clothing or accessories renders a physical, in-court confrontation other than face-to-face, particularly where the clothing does not obstruct the witness’s eyes, and we decline to do so under the facts of this case. We therefore hold that Smarr’s right to be brought face-to-face with his accuser was satisfied....

[T]he jury could view Brown’s eyes, and to some extent, her facial expressions; her posture, her gestures, and her body language; hear her tone of voice, her cadence, and her hesitation; and observe any nervousness, frustration, or hostility.