Canadian Court Says West Bank Wines Cannot Be Labeled "Products of Israel"

In Kattenburg v. Attorney General of Canada, (Federal Ct. Canada, July 29, 2019), a judge of Canada's Federal Court held that labeling wine produced by wineries in the West Bank settlements of Shiloh and Psagot as "Products of Israel" is false, misleading and deceptive in violation of § 7(1) of Canada's Consumer Packaging and Labelling Act and § 5(1) of Canada's Food and Drugs Act. The court said in part:

Both parties and both interveners agree that, whatever the legal status of the settlements may be, the fact is that they are not within the territorial boundaries of the State of Israel.

The court added:

[S]ome individuals opposed to the creation of Israeli Settlements in the West Bank express their opposition to the settlements and their support for the Palestinian cause through their purchasing choices, boycotting products produced in the Settlements. In order to be able to express their political views in this manner, however, consumers need to have accurate information as to the origin of the products under consideration. Identifying Settlement Wines incorrectly as “Products of Israel” inhibits the ability of such individuals to express their political views through their purchasing choices, thereby limiting their Charter-protected right to freedom of expression.

The Globe and Mail reports on the decision.

New Report On Muslim Inmates In State Prisons In U.S.

In a press release last week, Muslim Advocates announced the release of a report documenting the size of the Muslim population in state prisons in the U.S. and the extent to which their religious rights are accommodated. The 68-page report (full text) titled Fulfilling the Promise of Free Exercise for All: Muslim Prisoner Accommodation in State Prisons concluded in part:

[O]ur research shows that within the 34 states that provided data in response to our requests, Muslims are overrepresented in state prisons by a factor of eight relative to the general population. In some state systems, Muslims are overrepresented by a factor of closer to eighteen, with more than 20 percent of prisoners identifying as Muslim. The absolute number of Muslim prisoners has also increased over time, even as prison populations in many states have tended to decrease in the last few years. Despite Muslims constituting a significant and growing share of prisoners, many state departments of correction still have policies that are outdated, under-accommodating, or non-accommodating of Muslim prisoners.

The Appeal discusses the report.

Court Refuses To Order Return of WWII Remains To Supposed Next-of-Kin

In Patterson v. Defense POW/ MIA Accounting Agency, (WD TX, July 29, 2019), a Texas federal district court refused to order return to plaintiffs of the remains of seven servicemen who were killed or perished as POW's in the Philippines in World War II.  The court explains:

The parties dispute the extent to which the remains are identified. Plaintiffs argue that they have a property interest in these remains and that Defendants’ retention of these remains impinges on Plaintiffs’ religious practices and Plaintiffs’ interest in securing proper burial.

The court rejected plaintiffs' due process, 4th Amendment, free exercise and RFRA claims to the remains at issue, saying in part:

They state “the facts alleged in the Amended Complaint show that the Government has placed a substantial burden on the Families’ exercise of religion.”... 

The record reveals nothing further about Plaintiffs’ religious beliefs or how Defendants have burdened them. Plaintiffs do not indicate the nature, substance, or contours of their beliefs, or even whether all Plaintiffs share the same religious beliefs. In the complaint, Plaintiffs allege that a “proper burial is essential for many practicing Christians,” but they produce no declarations or other evidence outlining these beliefs. Defendants thus contest whether Plaintiffs’ beliefs are sincerely held. 

The Court is inclined to grant summary judgment on the sincerity grounds ... given Plaintiffs’ total lack of evidence. Courts have cautioned, however, that “[t]hough the sincerity inquiry is important, it must be handled with a light touch.... 

In keeping with this tradition ... the Court assumes Plaintiffs show sincerely held beliefs and concludes alternatively that Plaintiffs do not show a substantial interference with these beliefs. As Defendants note, Plaintiffs allege only that their beliefs require a “proper burial,” but without any explanation of what makes a “proper burial in accordance with each respective family’s religious beliefs,” the Court cannot assess the alleged interference.... Thus, Plaintiffs do not meet their initial burden for either their RFRA or Free Exercise claims.

Medical Center's Retirement Plan Is A "Church Plan" Exempt From ERISA

In Boden v. St. Elizabeth Medical Center, Inc., (ED KY, July 25, 2019), a Kentucky federal district court held that the employee retirement plan of a Catholic-affiliated health care provider is exempt from ERISA as a "church plan."  The case was initially stayed pending the Supreme Court's 2017 decision in Advocate Health Care Network v. Stapleton. (See prior posting.)  The case then proceeded under an amended complaint.  The court here, among other things, rejected plaintiffs' contention that the Pension Plan Administrative Committee is not "organization" that "maintained" St. Elizabeth's retirement plan, as required by the statute defining a "church plan." [Thanks to Tom Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

• Zainab Ramahi, Veiled Muslim Women: Challenging Patriarchy in the Legal System, (Berkeley Journal of Gender, Law & Justice, Vol. 33, 2018).
• Sumit Sonkar, From Shah Bano to Shayara Bano: Itinerary of Gender Equality of Muslim Woman in India, (Indian Bar Review, Vol.45 (1) 2018).
• Satang Nabaneh & A.S. Muula, Female Genital Mutilation/Cutting in Africa: A Complex Legal and Ethical Landscape, (International Journal of Gynecology and Obstetrics, 2019; 145: 253–257).
• Andrew M. Koppelman, LGBT Discrimination and the Subtractive Moves, (July 21, 2019).
• Ihsan Yilmaz, Muslims and Sacred Texts and Laws, (January 15, 2019).
• Jehanzaib Waqas, Financial Reforms for Social Development by Holy Prophet in Medinian Society (Peace and Blessings Be Upon Him) , (Pakistan Journal of Islamic Research, 2017 Special Issue).
• Edana Richardson, Responsible Finance Sukuk — Can They Bring Societal Value to a Value-Neutral Market?, ((2019) 14(3) Capital Markets Law Journal 394)).

From SmartCILP and elsewhere:

• Journal of Law & Religion, Vol. 34, Issue 1 (April 2019).
• Gordon T. Butler, John the Theologian: Toward Integrating Law and Religion, 14 Intercultural Human Rights Law Review 41-65 (2019).
• David F. Forte, The Faith and Morals of Justice Antonin Scalia, 14 Intercultural Human Rights Law Review 67-92 (2019).
• Marc-Tizoc Gonzalez, John Makdisi On the Intercultural Origins of the Common Law, 14 Intercultural Human Rights Law Review 167-191 (2019).
• Ali Rod Khadem, Why Should Law and Policy Makers Understand Extremist Beliefs? The Islamic State (ISIS) As a Case Study: Past, Present, and Future, 23 Lewis & Clark Law Review 101-203 (2019).
• Helen M. Alvare, A Perfect Storm: Religion, Sex and Administrative Law, 92 St. John's Law Review 697-753 (2018).

Nigerian Court Bars Shiite Group as Terrorists

Legit reported today that the Nigerian federal government has obtained a court order banning the Shiite group Islamic Movement in Nigeria on the ground that it is a terrorist group. A Federal High Court justice, Nkeonye Maha, issued the order and designated the activities of the Shiite movement in any part of Nigeria "as acts of terrorism and illegality".

Gay Couple Sue Over Citizenship of Child Born Through Surrogacy Abroad

A same-sex married couple has filed suit in a Georgia federal district court challenging the State Department's refusal to recognize their daughter as a U.S. citizen.  The complaint (full text) in Mize v. Pompeo, (MD GA, filed 7/23/2019), alleges that the due process and equal protection rights of James Mize and Jonathan Gregg were violated when the U.S. Embassy in Britain refused to issue a Consular Report of Birth Abroad and passport to their daughter who was born through assisted reproductive technology in Britain. It also contends that the State Department has misinterpreted the Immigration and Nationality Act (INA). The couple used the sperm of Mr. Gregg, an anonymous egg donor, and a surrogate who lives in Britain. Both fathers are U.S. citizens.  Mr. Gregg is a U.S. citizen by reason of birth in Britain to a U.S. citizen. He has lived in the U.S. less than five years. Mize and Gregg are listed as the only parents on the child's birth certificate.

Under Sec. 301 of the INA, a person born outside the United States to two married U.S. citizens is a U.S. citizen if at least one of the parents has resided in the U.S. at any time. However the State Department applies this provision only if the child has a biological relationship with both married parents. Otherwise it applies Sections 309 and 301(g) of the INA that govern when a child born out of wedlock is a citizen. In that case, the father must have lived in the U.S. for 5 years for the child to be a citizen.

The complaint alleges:

On information and belief, State Department officials are highly unlikely to ask different-sex parents who are identified as legal parents (e.g., on a child’s birth certificate) if their child is, in fact, biologically related to both legal parents. In contrast, same-sex parents will always trigger an investigation, and consular officials routinely ask same-sex parents for specific evidence of a biological tie and/or about the use of assisted reproductive technology.

CNN reports on the lawsuit.

Canadian Court Orders Reconsideration of Election Date That Conflicts With Jewish Holiday

In Aryeh-Bain v. Canada (Attorney General), (Canada Fed. Ct., July 23, 2019), a judge of Canada's Federal Court ordered Canada's Chief Electoral Officer to reconsider his decision that refused to reschedule the October 21 Canadian federal election that conflicts with the Jewish holiday of Shemini Atzeret.  According to the court:

If the election is held on Shemini Atzeret, Ms. Aryeh-Bain, who is a candidate for the Conservative Party in her riding, must refrain from voting and campaigning during that period. Similarly, Mr. Walfish and other Orthodox Jewish voters (estimated to be 75,000 nationwide) will be unable to vote on election day or otherwise be involved in the election on that day.

In addition to polling day being on Shemini Atzeret, two of the advanced polling days  conflict with either the Sabbath (October 12) or the festival of Sukkot (October 14), both of which are also Jewish holidays. The last day to obtain a special ballot (October 15) also falls on Sukkot.

The court held that administrative decision makers are required to balance rights under the Charter of Rights and Freedoms with statutory objectives when making administrative decisions. It went on:

The record does not indicate how or if the CEO “balanced” these considerations against the Charter values of Orthodox Jewish voters and candidates to ensure their rights to “meaningful participation” are respected.  The CEO’s efforts were focused on advance polling and special ballot options.  No consideration appears to have been given to recommending a date change.

Canadian Press reports on the decision.

Challenge To Attempted Search of Church Is Dismissed

In Aguilera v. City of Colorado Springs, (D CO, July 23, 2019), a Colorado federal district court dismissed a suit brought by plaintiff who leases two rooms to the Green Faith Ministry. The suit grew out of an attempt by city authorities to conduct an occupancy check of the building leased by the Ministry, apparently suspecting that it was a retail marijuana outlet. Authorities took photos of license plates, but never gained access to the building. The court held that plaintiff lacks standing to bring most of her claims:

Plaintiff complains that Defendants ... deterred others from entering the building... She alleges that Defendant Vargason attempted a warrantless entry of the Green Faith Ministry building.... She contends that the City of Colorado Springs is entangled financially with many Christian organizations and targeted Green Faith Ministry.... Plaintiff fails to allege how this conduct, directed to other individuals and to the Green Faith Ministry entity, harmed her.

The court went on to find a few actions that did impact plaintiff, including one of the defendants telling her "to Praise the Lord." The court concluded that this did not violate the Establishment Clause or plaintiff's free exercise rights.

County Sued Over Zoning Denial To Faith-Based Recovery Program

Suit was filed in a Georgia federal district court last week by a ministry offering a faith-based residential program for men recovering from addiction alleging discriminatory action by a county zoning board. the complaint (full text) in Vision Warriors Church, Inc. v. Cherokee County Board of Commissioners, (ND GA, filed 7/15/2019) alleges that the county's denial of zoning approval for operation of plaintiff's recovery program violates the federal Fair Housing Act, the ADA, RLUIPA and the 14th Amendment's Equal Protection clause. ACLJ issued a press release announcing the filing of the lawsuit.

Cert. Filed: Do Parents Have Due Process Rights In Emancipation of Teen?

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Calgaro v. St. Louis County. The petition frames the question presented as:

Whether parents’ Due Process Clause rights apply to local governments and medical providers ending parental rights, responsibilities or duties over their minor children’s welfare, educational, and medical care decisions without a court order of emancipation.

As described by the U.S. 8th Circuit Court of Appeals in its March 25, 2019 decision below (full text):

In May 2015, E.J.K. moved out of Calgaro’s home in St. Louis County, Minnesota. Calgaro never surrendered her parental rights, but E.J.K. obtained a letter from Mid-Minnesota Legal Aid describing E.J.K.’s father and Calgaro as “hav[ing] given up control and custody of their child.” The letter concluded that E.J.K. was therefore “legally emancipated under Minnesota law.”... Based on E.J.K.’s claims of emancipation, St. Louis County provided E.J.K. with funding for medical services and other living expenses, and E.J.K. obtained gender transition care from Park Nicollet Health Services.

Thomas More Society issued a press release announcing the filing of the petition for review.

6th Circuit: Street Near Planned Parenthood Clinic Is Traditional Public Forum

In Brindley v. City of Memphis, (6th Cir., July 24, 2019), the U.S. 6th Circuit Court of Appeals held that a street adjacent to a Planned Parenthood clinic is a traditional public forum even though the street was originally privately owned.  The court said it is enough that the street looks and functions like a public street. Also the street was dedicated as a public right of way. Thus the court reversed and remanded a district court's denial of a preliminary injunction to a pro-life activist who wanted access to the street. [Thanks to Tom Rutledge for the lead.]

Judge Urges Plaintiffs To File New Religious Discrimination Suit

In TAL Properties of Pomona, LLC v. Village of Pomona, (SD NY, July 22, 2019), a New York federal district court refused to vacate its earlier judgment and reopen a religious discrimination case brought by a Jewish building developer against a New York village. Plaintiffs argued that a subsequent New York State Division of Human Rights report revealed new evidence of discrimination against Orthodox Jewish residents of the village.  The court, while ruling against plaintiffs, said:

Defendants should take little comfort in this outcome. The allegations presented on this motion, if even half true, are disturbing. I am obliged to stay within the confines of Rule 60(b), which in my judgment does not allow for this lawsuit to be reopened, but should Plaintiffs commence a new lawsuit, they may well be able to state a claim. And I do not see how Defendants will “suffer immense prejudice,” ... if they have to defend themselves on the merits. They may well be able to do so; I have no opinion as to the what the outcome of such a case would be, nor could I at this stage. But should Plaintiffs find it in their interest to pursue a case, airing the allegations and getting to the truth would hardly be a bad thing.

Copyright Infringement Counterclaims Not Dismissed

In Holy Spirit Association for the Unification of World Christianity v. World Peace & Unification Sanctuary, Inc., (MD PA, July 22, 2019), a Pennsylvania federal district court refused to dismiss counterclaims or strike defenses in a copyright infringement suit between two religious organizations.  At issue is the "Twelve Gates" mark which defendant claims is not a valid trademark, and the Tongil symbol which defendant claims is available to be used by all followers of Rev. Sun Myung Moon.

11th Circuit: Inmate's Complaint About Halal-Compliant Food Can Move Ahead

In Robbins v. Robertson, (11th Cir., July 23, 2019), the U.S. 11th Circuit Court of Appeals held that a Muslim inmate's 1st Amendment claim regarding the adequacy of his religious diet should not be dismissed, saying in part:

Plaintiff also made some non-conclusory allegations that plausibly supported his claim that the Islamic-compliant vegan meals were so nutritionally deficient that he was forced to choose between abandoning his religious precepts (by eating religiously non-compliant food that was nutritionally adequate) or suffering serious health consequences (by eating nutritionally inadequate food that was religiously compliant).

Cert Filed In Challenge To Exclusion of Foster Care Agencies That Reject Same-Sex Couples

A petition for certiorari (full text) was filed this week in Fulton v. City of Philadelphia, (cert. filed 7/22/2019).  In the case, the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.)  Becket issued a press release announcing the filing of the petition.

Settlement Reached In Christian School's Zoning Fight

A settlement has been reached in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida. The suit filed in a Florida federal district court in March alleged violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. (See prior posting.)  According to a press release from ADF, in settling the case the county has approved the church's use of its property. A joint stipulation of dismissal (full text) was filed in Florida federal district court on July 22.

DOJ Summit On Combating Anti-Semitism Held Last Week

Last Monday, the Department of Justice held a Summit on Combating Antisemitism.  Deputy Attorney General Jeffrey A. Rosen delivered Introductory Remarks (full text) and Attorney General William Barr delivered the keynote speech opening the Summit (full text). He said in part:

The first panel will focus on combatting anti-Semitism while respecting the First Amendment. Hate-crime and civil-rights prosecutions are important tools but they cannot solve the problem on their own. Hearts and minds must be changed, but that is not always a task to which the government is particularly well-suited. We have a legal obligation to respect the free speech rights of even despicable speakers and our harshest critics. But lines can be drawn by our society, sometimes easily and sometimes not so easily, between that commitment and repudiation of anti-Semitism.

Another panel will focus on the problem of anti-Semitism on campus. On college campuses today, Jewish students who support Israel are frequently targeted for harassment, Jewish student organizations are marginalized, and progressive Jewish students are told they must denounce their beliefs and their heritage in order be part of "intersectional" causes. We must ensure – for the future of our country and our society – that college campuses remain open to ideological diversity and respectful of people of all faiths.

The DOJ website contains photos of the Summit. JTA reports on additional speakers at the Summit.

Recent Articles of Interest

From SSRN:

• William E. Thro, Embracing Constitutionalism: The Court and the Future of Higher Education Law, (University of Daytona Law Review, Vol. 44, No. 147, 2019).
• Richard W. Garnett, Religious Freedom and the Churches: Contemporary Challenges in the United States Today, (Studies in Christian Ethics, Vol. 32, Issue 4 (2019)).
• Stephen Mark Bainbridge, Bob Cochran on Law and Lawyering: A Catholic Perspective , (UCLA School of Law, Public Law Research Paper No. 19-21 (2019)).
• Stephen Mark Bainbridge, Enhanced Accountability: The Catholic Church’s Unfinished Business, (53 University of San Francisco Law Review 165 (2019)).
• Allen R. Kamp, Right Rights, (January 29, 2019).
• Erik Baldwin, et. al., The Burqa Ban: Legal Precursors for Denmark, American Experiences and Experiments, and Philosophical and Critical Examinations,(International Studies Journal, vol. 15, no. 1, Summer 2018).
• Laura T. Kessler, Reynolds v. United States, Rewritten, (July 18, 2019).
• John Witte, 'John Calvin,' (in Olivier Descampes and Rafael Domingo, eds., Great Christian Jurists in French History (Cambridge University Press, 2019), 117-33).
• John Witte, Church, State, and Sex Crimes: What Place for Traditional Sexual Morality in Modern Liberal Societies?, (Emory Law Journal 68 (2019): 837-865).

Court Expands Injunction On Prayer At High School Graduations

In American Humanist Association v. Greenville County School District, (D SC, July 18, 2019), a South Carolina federal district court expanded its May 2015 order relating to prayer at high school graduation ceremonies in a South Carolina school district. It issued a permanent injunction that includes the following provisions:

(1) The district shall not include a prayer ... as part of the official program for a graduation ceremony. The district also shall not include an obviously religious piece of music as part of the official program for a graduation ceremony.

(2) The district and/or school officials shall not encourage, promote, advance, endorse, or participate in causing prayers during any graduation ceremony....

(4) The district and/or school officials shall not provide copies of student remarks from any prior year’s graduation ceremony to any students selected to make remarks during an upcoming graduation ceremony.

(5) ... No program or flier may direct the audience or participants to stand for any student’s remarks at a graduation ceremony.

(6) If school officials review, revise, or edit a student’s remarks in any way prior to the graduation ceremony, then school officials shall ensure that the student’s remarks do not include prayer.

(7) If school officials do not review, revise, or edit a student’s remarks ..., then a student’s remarks may include prayer, provided that no other persons may be asked to participate or join in the prayer, for example, by being asked to stand or bow one’s head. Moreover, in the event that a student’s remarks contain prayer, no school officials shall join in or otherwise participate in the prayer.

(8) Any program or flier for a graduation ceremony must include the following disclaimer if the ceremony includes a student’s remarks: “The views or opinions expressed by students during this program are their own and do not reflect the policy or position of the school district.”

Greenville News reports on the decision.