Saturday, December 09, 2017

DC Transit Authority's Ban On Religious Ads Upheld

In Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, (D DC, Dec. 8, 2017), the DC federal district court upheld advertising Guidelines of the Washington Metropolitan Area Transit Authority which, among other things, bar transit vehicle ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese challenged the application of this Guideline after WMATA refused to allow the Archdiocese's "Find the Perfect Gift" Christmas campaign ad.  The ad, intended for the exterior of public buses, was designed "to invite the public to consider the spiritual meaning of Christmas..." Denying a preliminary injunction, the court found that plaintiff is unlikely to succeed  on the merits of its free speech, free exercise, equal protection or RFRA arguments.

Rejecting the Archdiocese's free speech claim, the court held that the exterior of a bus in not a "public forum," and WMATA's restriction is neutral and reasonable.  The court said in part:
plaintiff maintains that the Guideline has been discriminatorily and arbitrarily enforced, favoring other religious advertisements over those sponsored by the Catholic Archdiocese.... But the record does not support this contention. None of the advertisements plaintiff highlights to make that point – neither the ads heralding the opening of another CorePower Yoga fitness studio in Clarendon, Virginia (“Muscle + Mantra”), nor the ads soliciting contributions to the Salvation Army’s Red Kettle effort (“Give Hope. Change Lives”) “promote or oppose any religion.”
Rejecting plaintiff's RFRA argument, the court said that no "substantial burden" or religious exercise was shown here:
... RFRA decisions turn on an element of compulsion, and here plaintiff is under no pressure to do anything. The fact that plaintiff has a sincere belief in spreading the gospel is not in dispute, but the existence of that belief, and even the sincere desire to act in accordance with it, is not enough to sustain a claim.
Washington Post reports on the decision.

4th Circuit En Banc and 9th Circuit Hear Arguments In Challenge To Third Travel Ban

On Wednesday, a 3-judge panel of the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in State of Hawaii v. Trump, a challenge to President Trump's third travel ban Proclamation. In the case a Hawaii federal district court-- without reaching the Establishment Clause question-- issued a nation-wide temporary restraining order barring enforcement of most portions of this latest, more focused, version of President Trump's travel ban.  The court (See prior posting.)  The Hill reports on the arguments.

Yesterday, the U.S. Fourth Circuit Court of Appeals, sitting en banc, heard two hours of arguments (audio of full arguments) in International Refugee Assistance Project v. Trump, another challenge to the same travel ban Proclamation.  In the case, a Maryland federal district court held that the Proclamation violates provisions of the Immigration and Nationality Act that prohibit denial of immigrant visas on the basis of nationality, and that, like the prior two bans, the third travel ban also violates the Establishment Clause. (See prior posting.)  The Hill reports on the arguments.

Earlier this week, the U.S. Supreme Court granted a stay of the preliminary injunction while appeals are pending in both cases.  (See prior posting.)

Friday, December 08, 2017

President Hosts Hanukkah Reception At White House

Yesterday evening President Trump and the First Lady hosted a Hanukkah party in the East Room of the White House. In his remarks (full text), the President said in part:
The miracle of Hanukkah is the miracle of Israel. The descendants of Abraham, Isaac, and Jacob have endured unthinkable persecution and oppression.
But no force has ever crushed your spirit, and no evil has ever extinguished your faith. And that is why the Jewish people shine as a light to all nations. And right now I’m thinking about what’s going on and the love that's all over Israel and all about Jerusalem. (Applause.)
On behalf of all Americans, I also want to say how grateful I am for Jewish congregations throughout our country. You cherish your families, support your communities, and uplift our beloved country.
Photos from the reception are posted on the President's Instagram account.

Rabbinical College Wins Challenge To Zoning and Environmental Laws

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, NY, (SD NY, Dec. 7, 2017), a New York federal district court in a 112-page opinion held that various zoning and environmental regulations enacted by the Village of Pomona violate the rights of plaintiff which is seeking to build a rabbinical college, on-campus housing and related religious facilities on a 100-acre piece of land which it owns.  The court held that plaintiff had proven that the challenged laws were enacted with a discriminatory purpose to "thwart the expansion of the orthodox/ Hasidic community.  The challenged laws were found to violate the Equal Protection Clause, the state and federal Free Exercise Clauses, RLUIPA's non-discrimination provisions, and the Fair Housing Act.  the court also concluded that the challenged laws imposed a substantial burden on plaintiff's religious exercise in violation of RLUIPA.  Lohud reports on the decision.

Court Upholds FEMA Policy Denying Disaster Grants To Religious Facilities

In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Dec. 7, 2017), a Texas federal district court refused to issue a preliminary injunction against a FEMA Policy Guideline that bars disaster relief grants to facilities that are used primarily for religious activities. (The Guideline also bars grants to facilities used primarily for political, athletic, recreational, vocational, or academic activities.)  The court concluded that plaintiff had not shown a substantial likelihood of success on its Free Exercise challenge to the Guideline.  It held that the case is governed not by the U.S. Supreme Court's Trinity Lutheran decision, but instead by the Supreme Court's decision in Locke v. Davey:
[T]he Locke plaintiff was not denied a scholarship because of what he was, but “because of what he proposed to do—use the funds to prepare for the ministry.” ... In Trinity Lutheran, on the other hand ... [t]he funds were not denied because of what they would be used for—a non-religious use—but because of the church’s status as a religious institution.... In the instant case, FEMA’s policy is closer to the scholarship in Locke. Plaintiffs would use the FEMA funds to rebuild facilities used primarily to promote religious activities.... Further, FEMA’s policy even distinguishes based on use, rather than status or identity....
MySanAntonio.com reports on the decision. [Thanks to Marty Lederman via Religionlaw for the lead.]

Thursday, December 07, 2017

Australia Approves Same-Sex Marriage

As reported by the New Zealand Herald, Australia's Parliament has given final approval to same-sex marriage. The vote comes after a government mail survey showed that 61.6% of Australians favored marriage equality.  (See prior posting.) Marriage Amendment (Definition and Religious Freedoms) Bill 2017  passed the House of Representatives yesterday.  It was approved 43-12 last week by the Senate.  It now goes to the Governor General for royal assent.  The Herald reports further:
Amendments meant to safeguard freedoms of speech and religion for gay-marriage opponents were all rejected, though those issues may be considered later. The government has appointed a panel to examine how to safeguard religious freedoms once gay marriage is a reality in Australia....
The current bill allows churches and religious organizations to boycott gay weddings without violating Australian anti-discrimination laws.
Existing civil celebrants can also refuse to officiate at gay weddings, but celebrants registered after gay marriage becomes law would not be exempt from the anti-discrimination laws.
One of the rejected amendments would have ensured Australians could speak freely about their traditional views of marriage without fear of legal action.
ABC News says that the first same-sex weddings could take place as early as January 9.

European Court: Muslim Witness Should Be Allowed To Wear Skullcap While Testifying

In Hamidović v. Bosnia and Herzegovina, (ECHR, Dec. 5, 2017), the European Court of Human Rights held that the courts of Bosnia and Herzegovina infringed the religious freedom rights protected by Art. 9 of the European Convention on Human Rights when it held a Muslim man in contempt for refusing on religious grounds to remove a head covering while testifying in a criminal trial.  As summarized in the Court's press release on the case:
In 2012 Mr Hamidović, a witness in a criminal trial, was expelled from the courtroom, convicted of contempt of court and fined for refusing to remove his skullcap. 
The Court found that there had been nothing to indicate that Mr Hamidović had been disrespectful during the trial. Punishing him with contempt of court on the sole ground that he had refused to remove his skullcap, a religious symbol, had not therefore been necessary in a democratic society and had breached his fundamental right to manifest his religion.
The Court pointed out in particular that Mr Hamidović’s case had to be distinguished from cases concerning the wearing of religious symbols and clothing at the workplace, notably by public officials. Public officials, unlike private citizens such as Mr Hamidović, could be put under a duty of discretion, neutrality and impartiality, including a duty not to wear religious symbols and clothing while exercising official authority.
Two judges filed concurring opinions and one judge dissented.

Wednesday, December 06, 2017

Court Says Humanism Is Not A Religion

In Espinosa v. Stogner, (D NV, Dec. 4, 2017), a Nevada federal district court-- in a suit brought by a prisoner-- held that Humanism does not qualify as a "religion" for purposes of the Free Exercise or Establishment Clause.  The court reasoned in part:
The Court has no basis to doubt Plaintiff’s sincerity as to his professed beliefs and of course has no opinion as to the value of those beliefs, but the allegations in the FAC confirm that despite the title Plaintiff gives his belief system (“Religious Humanism”), it is not a religion for the purposes of the religion clauses. See Peloza v. Capistrano Unified Sch. Dist., 37 F.3d 517, 521 (9th Cir. 1994) ... (“[R]eligion is the ‘belief in and reverence for a supernatural power accepted as the creator and governor of the universe.’”).... Alvarado v. City of San Jose, 94 F.3d 1223, 1229 (9th Cir. 1996) ... (“We are hard put to imagine a more unworkable definition of religion ... for purposes of the Establishment Clause or Free Exercise than that which is offered here. Few governmental activities could escape censure under a constitutional definition of ‘religion’ which includes any symbol or belief to which an individual ascribes ‘serious or almost serious’ spiritual significance. ‘If anything can be religion, then anything the government does can be construed as favoring one religion over another, and . . . the government is paralyzed. . . .’ While the First Amendment must be held to protect unfamiliar and idiosyncratic as well as commonly recognized religions, it loses its sense and thus its ability to protect when carried to the extreme proposed by the plaintiffs.”).

Colorado School Board Ends Voucher Program As 6 Years of Litigation Threatened To Drag On

Yesterday the Douglas County, Colorado Board of Education voted 6-0 (with one abstention) to end its controversial school choice grant program which has been the subject of litigation for over six years.  The district has spent $1.77 million litigating the case. Most recently the cases challenging the program were remanded by the U.S. Supreme Court to the Colorado Supreme Court for reconsideration.  (See prior posting.)  As reported by the Highlands Ranch Herald, the vote to end the school choice program came after four anti-voucher candidates were elected to the school board in last November's election.

Tuesday, December 05, 2017

Transcript of Oral Arguments In Masterpiece Cakeshop Is Now Available

The transcript (full text) of today's oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission is now available.  Amy Howe at SCOTUSblog has posted an analysis of the argument.  She speculates that Justice Kennedy holds the key vote. She also observes:
[M]any of the more liberal justices’ questions seemed to focus on trying to convince their more conservative colleagues that, even if they might be inclined to vote for Masterpiece, it would be next to impossible to write a ruling for the baker that did not, as Justice Stephen Breyer put it, “undermine every civil rights law since year 2.”

SCOTUS Will Hear Arguments In Masterpiece Cakeshop Case Today

The U.S. Supreme Court this morning will hear oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the widely followed case that pits the religious and free speech rights of a Christian bakery owner against the rights of a same-sex couple under Colorado's public accommodation law.  SCOTUSblog has a preview of the arguments, as well as a case page with links to the many briefs filed in the case, to the opinion below and to extensive commentary.  The high profile which the case has assumed is encapsulated in this deck headline from the Christian Science Monitor:
As evidenced by the people who began camping outside the high court for a seat at Tuesday’s oral arguments, the Masterpiece Cakeshop case seems destined to be a historic ruling – with both sides warning that defeat could bring potentially seismic consequences.
Daily Signal has a profile of one of the lawyers who will be arguing before the court today.  The transcript of the oral arguments should become available later today.  I will post a link to it at that time.

Settlement Reached In Correctional Employee's Suit Over Religious Curriculum for Inmates

The state of Tennessee last month agreed to a settlement of $45,948, plus up to $35,000 in attorneys' fees, in a suit that was brought by an employee of a state corrections agency who complained that the program he was required to teach to inmates was heavily religious. The program was based on the book This Ain’t No Practice Life by Michael Burt  Also under the agreement, the employee will leave the agency next June. (Full text of settlement agreement).  The agreement followed a federal district court's entering of a preliminary injunction in favor of the employee last February.  In Baker v. State of Tennessee, (MD TN, Feb. 17, 2017), the court, finding a strong likelihood of an Establishment Clause violation, said:
The fact that the Coaching Program as a whole may have a secular purpose of rehabilitating TDOC inmates and preparing them for release and reentry does not mitigate the fact that there is likely no secular purpose to the inclusion of religious-based content in the Coaching Program’s materials.
Reporting on the settlement, WSMV News adds that the challenged program, which has now been canceled, cost the state $300,000 to implement.

Suit Challenges City's Reparative Therapy Ban

A suit was filed yesterday in Florida federal district court challenging the constitutionality of a Tampa ordinance that prohibits licensed counselors from practicing conversion therapy efforts on minors. Conversion therapy is defined in the ordinance as "efforts to change behaviors. gender identity, or gender expression, or to eliminate or reduce sexual or romantic attractions or feelings toward individuals of the same gender or sex." The complaint (full text) in Vazzo v. City of Tampa, Florida, (MD FL, filed 12/4/2017), contends that the ordinance violates plaintiffs' free speech and free exercise rights as well as rights under various Florida statutes.  Among other things, it argues that the law violates the First Amendment rights of plaintiffs' clients to receive information.  Liberty Counsel issued a press release announcing the filing of the lawsuit.

Monument Challenges Dismissed For Lack of Standing

In American Atheists, Inc. v. Levy County, (ND FL, Dec. 3, 2017), a Florida federal district court dismissed on standing grounds a challenge to a Ten Commandments monument in a courtyard outside county government buildings, as well as a challenge to the county's refusal to allow placement in the same area of a granite bench dedicated to non-believers.  Dismissing plaintiffs' Establishment Clause challenge to the Ten Commandments, the court said in part:
Plaintiffs have failed to meet the injury-in-fact requirement because [plaintiff] Mr. Sparrow is unlikely to encounter the Monument in the future and because his only encounter with the Monument in the past was during a purposeful visit.
Dismissing an equal protection challenge to the refusal of a permit for the monument to atheists, the court held that "Plaintiffs lack standing because they have failed to show redressability."  Their proposal did not comply with guidelines for permissible monuments.  The court concluded:
Had counsel for Plaintiffs devoted more thought to these [standing] issues, then perhaps this Court could have addressed the merits of this dispute. But counsel didn’t, so this case must be dismissed for lack of standing.
Liberty Counsel issued a press release announcing the decision.

Monday, December 04, 2017

Supreme Court Denies Review In Houston Spousal Benefits Case

The U.S. Supreme Court today denied certiorari in Turner v. Pidgeon (Docket No. 17-424, cert. denied 12/4/2017) (Order List).  In the case, the Texas Supreme court gave two Houston taxpayer-voters another chance to challenge the legality of the city's extending spousal benefits to same-sex married couples. (See prior posting.)  AP reports on the Court's denial of review.

Supreme Court Stays Preliminary Injunction Against Trump's 3rd Travel Ban

The U.S. Supreme Court today granted a complete stay of the preliminary injunction that a Hawaii federal district court had issued against President Trump's third travel ban. The 9th Circuit had lifted the ban in part. (See prior posting.)  But today's order (full text) in Trump v. Hawaii (Sup. Ct., Dec. 4, 2017) stays the injunction completely while the case is being appealed to the 9th Circuit and then to the Supreme Court.  The Supreme Court noted that the 9th Circuit is handling the appeal on an expedited basis.  Justices Ginsburg and Sotomayor indicated that they would have denied the stay application.  Washington Post reports on today's ruling by the Supreme Court. [corrected]

UPDATE: Later today the U.S. Supreme Court issued a similar stay while appeals are pending of a preliminary injunction against the third travel ban that has been issued by a Maryland federal district court. (See prior posting.)  Today's order (full text) comes in Trump v. International Refugee Assistance Project, (Sup. Ct., Dec. 4, 2017).  Again Justices Ginsburg and Sotomayor disagreed with the majority.

Suit Over Mosque Settlement Remanded To State Court

Litigation over site plan approval for construction of a mosque in Bernards Township, New Jersey continues. In May, the Township reached settlements with the Islamic Society of Basking Ridge and with the U.S. Justice Department under which the Township will permit the mosque to be built. (See prior posting.) However, township residents continue to challenge the settlement. (See prior related posting.)  One of the suits contends that proper notice was not given of the meetings that approved the settlements.  That suit was originally filed in state court, but removed to federal court by defendants.  Now in Smith v. Township of Bernards, (D NJ, Nov. 29, 2017), the New Jersey federal court to which the case was removed has remanded the case to state court.  It found that the suit does not raise any federal law issue, even though one of the settlements was incorporated into a federal court order. Thomas More Law Center issued a press release announcing the court's decision.

Recent Articles of Interest

From SSRN:
From SSRN (Comparative religion and law, jurisprudence):
From SSRN (Islamic law and society):
From SmartCILP:

Sunday, December 03, 2017

Recent Prisoner Free Exercise Cases

In Eckstrom v. Beard, (9th Cir., Nov. 30, 2017), the 9th Circuit affirmed the dismissal of an inmate's claim that the prison's book policy violates his free exercise rights.

In Shaw v. Kaemingk, 2017 U.S. Dist. LEXIS 195018 (D SD, Nov. 28, 2017), a South Dakota federal district court allowed an inmate to move ahead with his complaint that authorities in numerous ways refused to accommodate his practice of Dorcha Cosàn as well as with his retaliation and other claims.

In Crowder v. Jones, 2017 U.S. Dist. LEXIS 195779 (SD IN, Nov. 29, 2017), an Indiana federal district court refused to find that a federal prison inmate had a Bivens implied private right of action against a prison chaplain for denial of a kosher diet.  The court relied largely on the Supreme Court's June 2017 decision in Ziglar v. Abbasi.

In Ali v. Duboise, 2017 U.S. Dist. LEXIS 196881 (ND OK, Nov. 30, 2017), an Oklahoma federal district court dismissed on qualified immunity grounds a Muslim inmate's complaint that he was told to pray only outside his cell and was threatened, pushed and locked up temporarily when he asked for a more specific location.

In Valerio v. Wrenn2017 U.S. Dist. LEXIS 196632 (D NH, Nov. 29, 2017), a New Hampshire federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 196999, Oct. 23, 2017) and allowed an inmate to move ahead with his complaint that his religious freedom was violated when he was subjected to a visual body cavity search in front of other inmates after being denied a privacy screen.

In Abreu v. Jaime, 2017 U.S. Dist. LEXIS 197323 (ED CA, Nov. 29, 2017), a California federal magistrate judge recommended dismissing an inmate's complaint alleging retaliation for appealing denial of Muslim prayers, and alleging denial of religious meals during a transfer.

In Kanatzar v. Cole, 2017 U.S. Dist. LEXIS 198067 (D KS, Dec. 1, 2017), a Kansas federal district court concluded that a Jewish inmate had adequately alleged a claim against two defendants for failure to provide properly prepared kosher food, and was given 30 days to file an amended complaint as to many other claims/

In Silverman v. Humboldt County Correctional Facility, 2017 U.S. Dist. LEXIS 198208 (ND CA, Dec. 1, 2017), a California federal magistrate judge allowed a Jewish inmate to move ahead with his claim seeking a kosher diet.

In Kollock v. Beemer, 2017 Pa. Commw. LEXIS 994 (PA Commnwlth. Ct., Nov. 30, 2017), a Pennsylvania appellate court rejected contentions by an inmate convicted of sexual offenses that the requirement he complete a program which includes admission of guilt in order to obtain parole violates his religious rights.  The inmate contended that this requires him to "bear false witness" against himself.

Suit Challenges Illinois Law Allowing Public Funds to Be Used To Cover Abortions

Last week, various Illinois right-to-life groups and several Illinois legislators filed a taxpayer lawsuit in state court challenging House Bill 40 which is scheduled to go into effect on January 1. The bill eliminates the prior ban on coverage for abortions by the state employees' insurance program and by the state's Medicaid program.  The law also eliminates a prior provision in state law that declared that an unborn child is a human being from the time of conception.  The complaint (full text) in Springfield Right to Life v. Norwood, (IL Cir. Ct., filed 11/30/2017) contends that funds cannot be expended on abortions because no appropriation has been made, and challenges the effective date of the law.  Thomas More Society issued a press release announcing the filing of the lawsuit.