Court Dismisses Challenge To City's Refusal To Fly Christian Flag

In Shurtleff v. City of Boston, (D MA, Feb. 4. 2020), a Massachusetts federal district court dismissed a suit challenging refusal by the city of Boston to fly a Christian themed flag on a flag pole outside city hall for a Constitution Day and Citizenship Day event sponsored by plaintiffs. The court held that the city's flag display constituted government speech that is not subject to the strictures of the First Amendment.  It also held that the city's actions did not violate the Establishment Clause or Equal Protection clause. The 1st Circuit Court of Appeals last June affirmed the denial of a preliminary injunction in the case. (Full text of 1st Circuit opinion).

Noise Restrictions On Sidewalk Abortion Counselors Upheld

In Henderson v. McMurray, (ND AL, Feb. 4, 2020), an Alabama federal district court upheld a Huntsville, Alabama special events ordinance and the provision in a permit allowing plaintiffs, pro-life sidewalk abortion counselors, to use amplification only if they cannot be heard in adjacent buildings. The court concluded that the challenged restrictions do not violate plaintiffs' rights to free speech or free exercise of religion.

Court Accepts RFRA Defenses of Volunteers Feeding Migrants

In United States v. Hoffman, (D AZ, Feb. 3, 2020), an Arizona federal district court reversed the criminal convictions of four volunteers aiding migrants through the faith-based organization No More Deaths/No Más Muertes. A federal magistrate judge had fined and imposed probation on the defendants for violating federal regulations barring entry into a national wildlife refuge without a permit and barring abandoning property there. Summarizing its holding, the court said in part:

Defendants ... appeal from convictions for violations of the regulations governing the Cabeza Prieta National Wildlife Refuge.... The violations were committed in the course of leaving supplies of food and water in an area of desert wilderness where people frequently die of dehydration and exposure. Defendants, who are volunteers with a charitable organization affiliated with the Unitarian Universalist Church, admit the factual allegations made by the Government.... Defendants argue that those actions, taken with the avowed goal of mitigating death and suffering, were sincere exercises of religion and that their prosecution is barred by the Religious Freedom Restoration Act.... The Court finds that Defendants demonstrated that their prosecution for this conduct substantially burdens their exercise of sincerely held religious beliefs, and that the Government failed to demonstrate that prosecuting Defendants is the least restrictive means of furthering any compelling governmental interest.

Law, Rights & Religion Project issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Phil Lord, What Is the True Purpose of Quebec's Bill 21?, ([2020] Directions, (Forthcoming)).
• Manal Cheema, Fill in the Blank: Compelling Student Speech on Religion, (105 Va. L. Rev. Online 175 (2019)).
• Fajri Muhammadin & Mohd Hisham Mohd Kamal, The Western Universalism v. Cultural Relativism Debate on Human Rights and Islam - An ‘Aqidah-Based Approach, (Afkar: Jurnal of Aqidah and Islamic Thought, Vol. 21 (2), 2019, pp.175-216).
• Michael McNally, Native American Religious Freedom as a Collective Right, (2019 BYU L. Rev. 205 (2019)).
• Farrah Ahmed, Arbitrariness, Subordination and Unequal Citizenship, (January 7, 2020).
• Abhinav Chandrachud, Secularism and the Citizenship Amendment Act, (January 4, 2020).
• Samuel D. Brunson, 'I’d Gladly Pay You Tuesday for a [Tax Deduction] Today': Donor-Advised Funds and the Deferral of Charity, (Wake Forest Law Review, Forthcoming).

Orthodox Jewish Family Ejected From Flight Sue American Airlines

An Orthodox Jewish family filed suit in a Texas federal district court last week charging American Airlines with religious, racial and national origin discrimination, as well as defamation, negligence and intentional infliction of emotional distress. The suit comes after the husband, wife and their 19-month old daughter were removed from an American Airlines flight. The complaint (full text) in Adler v. American Airlines, Inc., (SD TX, filed 1/28/2020) alleges that the Adlers were told by an American Airlines agent to deplane. Once off the plane, they were told that they had been ejected on instructions from the pilot because of extremely offensive body odor. In exchanges that followed, the Adlers rejected the claim, but the airline's agent allegedly told the Adlers "that he knew that Orthodox Jews take baths once a week." The complaint goes on to allege that an online search for "body odor" turns up the Adlers' name. Courthouse News Service and Detroit Free Press report on the lawsuit.

Trump Extends Some Travel Ban Restrictions To Six More Countries

In an exceptionally long Presidential Proclamation (full text), President Trump on Friday extended tailored restrictions under his controversial travel ban to immigrants (but not temporary visitors) from six additional countries. As explained by a News Release from the Department of Homeland Security:

.... For four countries – Burma, Eritrea, Kyrgyzstan, and Nigeria – the President has imposed travel restrictions on immigrant visas.

The reason is straightforward – individuals who have entered the U.S. on immigrant visas are challenging to remove even if, after admission into the U.S., the individual is linked to disqualifying information such as terrorist connections, criminal ties, or misrepresented information. 

 And because each of these countries have deficiencies in sharing terrorist, criminal or identity information, it is likely that information reflecting that a visa applicant is a threat may not be available at the time the visa or entry is approved. This is unacceptable.

 Two countries – Sudan and Tanzania – performed marginally better and the President decided to impose travel restrictions on Diversity Visas.  This is a less severe sanction compared to the general restriction on immigrant visas, given the significantly fewer number of aliens affected....

... [T]his Proclamation only restricts entry on certain categories of immigrant visas. Family members can still visit their loved ones, businesses can still employ qualified candidates, and other visits can take place on a temporary basis with a non-immigrant visa.

DHS also issued this shorter news release. Vox has more on the President's action.

Recent Hearings By House Foreign Affairs Committee

The House Foreign Affairs Committee has held two hearings of interest in recent days:

• Ending Global Religious Persecution (Jan. 28, 2020) Video of full hearing. Further coverage at Blog from the Capital.
  
• Resisting Anti-Semitism and Xenophobia in Europe (Jan. 29, 2020). Video of full hearing.

Church Leaders Sentenced To Prison In Scheme To Siphon Off Church Funds

The U.S. Attorney's Office for the District of New Jersey announced this week:

The leader and the main treasurer of the Israelite Church of God in Jesus Christ were sentenced to federal prison today for their respective roles in a scheme in which both men caused the church to pay millions of dollars in personal expenses for the leader that the leader then omitted from his personal tax returns.

The two men had previously pleaded guilty to one count of conspiring to defraud the United States of at least $250,000 in taxes.  Jermaine Grant, the church leader, was sentenced to 18 months in prison. The treasurer, Lincoln Warrington, was sentenced to 12 months and one day.

Court Denies Preliminary Injunction To Pastor Targeted For Ministering To Migrants

In Dousa v. U.S. Department of Homeland Security, (SD CA, Jan. 28, 2020), a California federal district court refused to grant a preliminary injunction to a Christian pastor who claimed that her right to freely exercise her religion was substantially burdened by federal government's surveillance, brief detention and harassment of her. She contended that the government's actions amounted to retaliation for her activities ministering to asylum seekers and migrant on the Mexican side of the U.S. southern border. Denying a preliminary injunction, the court said in part:

Dousa has not shown at this stage that the Government has substantially burdened her Free Exercise rights. The harms she alleges—a “canceled trip to Mexico, refrain[ing] from blessing migrant marriages, hav[ing] her pastoral counseling chilled,” ... are subjective, and the Ninth Circuit is clear that “a subjective chilling effect on free exercise rights is not sufficient to constitute a substantial burden.”

However the court refused to completely dismiss her allegations of 1st Amendment and RFRA violations, saying in part:

It bears repeating that a preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to relief.” ... The conclusion here that Dousa is not entitled to an injunction is simply a finding that she has not made that “clear showing” at this stage; it is not a finding that she cannot make that showing down the line, perhaps with the advantage of additional discovery.

Courthouse News Service reports on the decision.

4th Circuit Hears Arguments In Challenge To Trump's Travel Ban

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. (See prior posting.) The case had been remanded by the U.S. Supreme Court in light of its rejection of an Establishment Clause challenge in a parallel case. Brown County Democrat reports on the oral arguments.

DC Circuit Rejects NLRB's Test For Jurisdiction Over Adjunct Faculty At Religiously-Affiliated Colleges

In Duquesne University of the Holy Spirit v. NLRB, (DC Cir., Jan. 28, 2020), the Court of Appeals for the DC Circuit, in a 2-1 decision, held that the National Labor Relations Board lacks jurisdiction over adjunct faculty at Duquesne University.  In doing so, the majority rejected the test developed by the National Labor Relations Board in its 2014 Pacific Lutheran decision. The NLRB took the position that it lacks jurisdiction over adjunct faculty at non-profit religiously-affiliated colleges only if both the school holds itself out to the public as a religious institution and the particular faculty group petitioning performs a specific religious role. The majority held that the role played by the particular faculty may not be considered:

Pacific Lutheran impermissibly intrudes into religious matters. The Board suggests that it can avoid constitutional problems by considering only whether a religious school “holds out” faculty members as playing a specific religious role, ... but such an inquiry would still require the Board to define what counts as a “religious role” or a “religious function.” ... Defining which roles qualify would be far outside the competence of Board members and judges.

Judge Pillard dissenting said in part:

The Board’s approach has several advantages.... It recognizes the significant structural and functional differences between adjuncts and full faculty at many schools, as well as the heterogeneity of schools’ religious exercise. It thereby not only respects precedent and protects religious exercise, but also affords schools leeway to delineate for themselves the scope of the academic teaching corps that embodies their religious mission. In contrast to the automatic presumption of religiosity that the court adopts today, the Board’s approach adds a measure of tailoring at the exemption’s outer edge, eliminating needless sacrifice of adjuncts’ NLRA rights but extending the exemption to them where called for by a religious role the school itself identifies.

Pittsburgh Post-Gazette reports on the decision.

Trump Releases Middle East Peace Plan Including Plans For Jerusalem and Holy Sites

President Trump today released his his 181-page Israeli- Palestinian peace plan titled Peace To Prosperity. (Full text of plan.) The briefer Fact Sheet released by the White House summarizes the plan's provisions on Holy Sites in Jerusalem:

Israel will continue to safeguard Jerusalem’s Holy Sites and will guarantee freedom of worship for Jews, Christians, Muslims, and people of all faiths.

• The status quo at the Temple Mount/Haram al-Sharif will be preserved.

• The special and historic role of the King of Jordan with regard to the Muslim Holy Shrines in Jerusalem will be preserved.

• All Muslims are welcome to peacefully visit al-Aqsa Mosque.

The full plan includes this language as part of its description of arrangements for Jerusalem and its holy sites:

Unlike many previous powers that had ruled Jerusalem, and had destroyed the holy sites of other faiths, the State of Israel is to be commended for safeguarding the religious sites of all and maintaining a religious status quo.

Given this commendable record for more than half a century, as well as the extreme sensitivity regarding some of Jerusalem’s holy sites, we believe that this practice should remain, and that all of Jerusalem’s holy sites should be subject to the same governance regimes that exist today. In particular the status quo at the Temple Mount/Haram al-Sharif should continue uninterrupted.

Jerusalem’s holy sites should remain open and available for peaceful worshippers and tourists of all faiths. People of every faith should be permitted to pray on the Temple Mount/Haram al-Sharif, in a manner that is fully respectful to their religion, taking into account the times of each religion’s prayers and holidays, as well as other religious factors.....

... We believe that returning to a divided Jerusalem, and in particular having two separate security forces in one of the most sensitive areas on earth, would be a grave mistake.

While a physical division of the city must be avoided, a security barrier currently exists that does not follow the municipal boundary and that already separates Arab neighborhoods (i.e., Kafr Aqab, and the eastern part of Shuafat) in Jerusalem from the rest of the neighborhoods in the city.

This physical barrier should remain in place and should serve as a border between the capitals of the two parties.

Jerusalem will remain the sovereign capital of the State of Israel, and it should remain an undivided city. The sovereign capital of the State of Palestine should be in the section of East Jerusalem located in all areas east and north of the existing security barrier, including Kafr Aqab, the eastern part of Shuafat and Abu Dis, and could be named Al Quds or another name as determined by the State of Palestine. 

Presidential Message On International Holocaust Remembrance Day

Yesterday the White House issued a Presidential Message on International Holocaust Remembrance Day, 2020. (Full text). It says in part:

This year’s annual observance of International Holocaust Remembrance Day is especially moving as we commemorate the 75th anniversary of the liberation of Auschwitz....

Unfortunately, there are still Jewish men, women, and children who face persecution and discrimination today.  To fight the rise of anti-Semitism in the United States, I issued an Executive Order in December of 2019 that will help combat racist, anti-Semitic discrimination.  Anti-Semitism will never be tolerated, and this action bolsters my Administration’s efforts to create a culture of respect that deeply values the dignity in every human life.

Jewish Day School May Move Ahead With Some Claims In Dispute With New York Village

A press release from First Liberty describes the claims that gave rise to an opinion by a New York federal district court last week:

The lawsuit, filed in November 2018, alleges that government officials in the Village of Airmont, New York and the Suffern Central School District engaged in a deliberate effort to dissuade Orthodox Jewish residents from staying in or moving to the Village of Airmont. Central UTA owns 21 acres of property within the Village of Airmont that for nearly 20 years served as both a children’s school and day camp. The Village granted multiple approvals for the private, non-Orthodox school to operate. However, since Central UTA purchased the property in 2016 and advised the Village of its plans to build new buildings, Village officials have repeatedly used discriminatory zoning tactics to prevent Central UTA from operating.

In a similar effort, the local school district, Suffern Central, denied Central UTA children transportation and special education services even though it provided these same services to the previous school.

In Central UTA of Monsey v. Village of Airmont, New York, (SD NY, Jan. 23, 2020), the court held that claims growing out of the attempt to obtain approval for building two new school buildings and renovating an existing building should be dismissed for lack of ripeness. However the court allowed plaintiffs to move ahead with their RLUIPA, 1st Amendment and 14th Amendment claims growing out of a Notice of Violation issued as to the operation of a school for 200 to 300 students in an existing building and the failure to provide transportation and special needs services. The Notice of Violation placed the school at risk for over $2 million in fines.

Recent Articles of Interests

From SSRN:

• Engy Abdelkader, The Victimization of Muslim American Women and the Challenges of Imperial Feminism in Comparative Context, (Oxford University Press (2020 Forthcoming)).
• Harold Anthony Lloyd, Gorsuch and Originalism: Some Critiques from Logic, Scripture, and Art, (March 5, 2017).
• Fajiri Muhammadin, Book Review: 'Contemporary Muslims and Human Rights Discourse A Critical Assessment' by Dr Umar Ahmad Kasule, (IIUM Law Journal, Vol. 27 No. 2, 2019).
• Eva Brems, Hidden Under Headscarves? Women and Religion in the Case Law of the European Court of Human Rights, (Forthcoming, Religion & Human Rights, 2020).
• Eva Brems & Jogchum Vrielink, Floors or Ceilings: European Supranational Courts and Their Authority in Human Rights Matters, (in Koen Lemmens, Stephan Parmentier and Louise Reyntjens (eds), Human Rights with a Human Touch: Liber Amicorum Paul Lemmens, Inttersentia Publishers, 2019, 281-312).
• Hillel Y. Levin, Stacie Patrice Kershner, Timothy D. Lytton, Daniel Salmon & Saad B. Omer, Stopping the Resurgence of Vaccine-Preventable Childhood Diseases: Policy, Politics, and Law, (University of Illinois Law Review, Forthcoming).
• Richard W. Garnett, Attempts, Complicity, Virtue & the Limits of Law, (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, John Witte, Jr. (London: Routledge), Forthcoming).
• Victor C. Romero, Servant Leadership and Presidential Immigration Politics: Inspiration from the Foot-Washing Ritual, (26 Wash. & Lee. J. Civ. Rts. & Soc. Just. 147 (2019)).
• Hillel Y. Levin, Private Schools’ Role and Rights in Setting Vaccination Policy: A Constitutional and Statutory Puzzle, (William & Mary Law Review, Forthcoming).
• David Read, Konrad Lee, Jennifer Anderson & Chad S. Pehrson, Corporation of the Presiding Bishop v. Amos After Thirty Years: Exploring Limits of Religious Freedom, Church Employment, and the Civil Rights Act, (Public Interest Law Journal, Vol. 28, pp. 247- 294 No. 2 (2019)).
• Fajri Muhammadin, Muhammad Awfa & Kirana Anjani, Kirana, Applying Customary International Law in the Indonesian Human Rights Court - An Islamic Solution of the Conundrum, (Al-Shajarah: Journal of the International Institute of Islamic Thought and Civilisation (ISTAC), Vol. 24 (2) of 2019).

Son's Wish To Be Cremated Prevails Over Mother's Religious Objections

In In re Remains of Ghostley, (AZ App., Jan. 22, 2020), a mother appealed the order of a probate court directing that the remains of her adult son be cremated.  The son's father and the son's girl friend both affirmed that the son's wishes were to be cremated and to have his ashes spread over the places he loved.  The mother contended that her Jewish religious beliefs opposed cremation and that the thought of her son's being cremated caused her to suffer emotional hardship. Arizona statutes provide that the decedent's wishes must be followed "if they are reasonable and do not impose an economic or emotional hardship." The Arizona appellate court concluded:

[T]he probate court did not err in making the factual determination that Mother’s distress arising from her son’s wishes to be cremated did not rise to the level of “emotional hardship” as contemplated by § 36-831.01. We defer to a trial court’s factual findings unless they are clearly erroneous....

Mother testified that her distress stemmed primarily from her professed religious beliefs, the sincerity of which we do not purport to question here. However ... nothing compelled the court to elevate Mother’s religious beliefs above the wishes of her son. Notably, the record reflects that decedent was also religious, and his own spiritual beliefs could have played a role in his decision to be cremated.

AP reports on the decision.

President Proclaims National School Choice Week

Yesterday President Trump issued a Presidential Proclamation (full text) declaring January 26 to February 1 as National School Choice Week.  His Proclamation says in part:

Each child is a gift from God who has boundless potential and deserves a fair shot at the American Dream. To have that fair shot, children and their families must be free to pursue an educational environment that matches their individual learning style, develops their unique talents, and prepares them with the knowledge and character needed for fulfilling and productive lives.....

Today, I renew my call on the Congress to focus on what is best for children and pass a Federal tax credit to support State-based educational choice programs.....

Trump Addresses March For Life

Yesterday President Trump addressed the 47th Annual March for Life on the National Mall in Washington. (Full text of remarks). He is the first President to attend the March in person.  He said in part:

All of us here today understand an eternal truth: Every child is a precious and sacred gift from God.  (Applause.)  Together, we must protect, cherish, and defend the dignity and sanctity of every human life.  (Applause.)...

We have taken decisive action to protect the religious liberty –- so important.  Religious liberty has been under attack all over the world, and, frankly, very strongly attacked in our nation.  You see it better than anyone.  But we are stopping it, and we’re taking care of doctors, nurses, teachers, and groups like the Little Sisters of the Poor.  (Applause.)  We are preserving faith-based adoption.  (Applause.)

And to uphold our founding documents, we have confirmed 187 federal judges — (applause) — who apply the Constitution as written, including two phenomenal Supreme Court Justices: Neil Gorsuch and Brett Kavanaugh.  (Applause.)

President Sends Greetings On Lunar New Year

The White House today issued a message from President Trump (full text) sending greetings to those in the U.S. and around the world who are celebrating the Lunar New Year.  He said in part:

On this occasion, we join millions around the globe in welcoming the Year of the Rat and embracing a new year filled with opportunities to make a positive impact in the lives of others.  As those of Asian heritage celebrate this special time of year ... we wish them happiness, health, and prosperity in the year to come.

HHS Says California Violated Federal Conscience Protections On Abortion Coverage

The U.S. Department of Health and Human Services (HHS) Office of Civil Rights today issued a Notice of Violation (full text) to the state of California finding that the state violated federal law by making elective abortion coverage mandatory in all policies offered by insurance companies regulated by the state's Department of Managed Health Care. A Christian church and a Catholic religious order filed complaints with HHS saying that California's Mandate Letters to health care plans resulted in the religious organizations being required to offer their employees policies that cover abortions, in violation of the conscience provisions of the federal Weldon Amendment.

The Notice of Violation explains:

... [T]he only exemption California offered (to a health plan issuer) was limited to plans covering a narrow set of “religious employers” under California law. However, the Weldon Amendment protects from discrimination all plans that decline to cover abortion, without requiring any plan issuers, sponsors, or beneficiaries to have a religious character or have a religious reason for not providing or paying for such coverage.... [E]ven a categorical exemption of “religious employers,” as defined by California law, would have only been available to approximately 37% of those employer groups who, prior to the Mandate Letters, had health care coverage that limited or excluded abortion.

The Notice of Violation concludes:

If OCR does not receive sufficient assurance that California will cease requiring all health care plans, as a class, to cover abortion, or that it is willing to negotiate in good faith towards that end, OCR will forward this Notice of Violation and the evidence supporting OCR’s findings in this matter to the appropriate HHS funding components for further action under applicable grants and contracts regulations. Such referral may ultimately result in limitations on continued receipt of certain HHS funds in accordance with the Constitution and applicable Supreme Court case law. 

HHS also issued a press release explaining its action which in part quotes the Director of HHS's Office of Civil Rights:

We are putting California on notice that it must stop forcing people of good will to subsidize the taking of human life, not only because it’s the moral thing to do, but because it’s the law.