Wednesday, April 25, 2018

Evangelicals Organizing For Mid-Term Elections

A New York Times article posted yesterday reports:
The conservative Christian coalition that helped usher President Trump into power in 2016 is planning its largest midterm election mobilization ever, with volunteers fanning out from the church pews to the streets to register voters, raise money and persuade conservatives that they cannot afford to be complacent this year.
Evangelicals cite a list of Trump's achievements as the basis for their continued support of candidates backing his agenda, despite the controversies surrounding Trump's alleged personal behavior:
He has begun the process of moving the American Embassy in Israel to Jerusalem, won the confirmation of numerous judges and a Supreme Court Justice who seem likely to advance their anti-abortion cause, moved against transgender protections throughout the government, increased the ability of churches to organize politically and personally supported the March for Life.

Supreme Court Will Hear Oral Arguments In Travel Ban Case Today

The U.S. Supreme Court will hear oral arguments this morning in Trump v. Hawaii, a challenge to the legality of the most recent version of President Trump's controversial "travel ban."  As explained by this argument preview from SCOTUSblog, as well as this New York Times preview, one of the major questions that the Court will face is whether Donald Trump's anti-Muslim statements  during his campaign for office, and his Tweets while in office, should be considered in deciding whether his later executive action violates the Establishment Clause. SCOTUS blog's case page has links to the numerous briefs filed in the case, as well as to commentary and other primary source documents.  I will post a link to the transcript of the oral argument when it becomes available later today.

3rd Circuit Allows Religious Group To Intervene In State's Challenge To Trump Contraceptive Mandate Exemptions

In Commonwealth of Pennsylvania v. President United States of America, (3rd Cir., April 24, 2018), the U.S. 3rd Circuit Court of Appeals in a 20-page opinion reversed a Pennsylvania federal district court. The 3rd Circuit allowed Little Sisters of the Poor to intervene to defend Trump Administration interim rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. Becket issued a press release on the decision.

Senate Confirms Religious Liberty Expert For Seat On 5th Circuit

The U.S. Senate yesterday by a vote of 50- 47, confirmed Stuart Kyle Duncan, of Louisiana, to be United States Circuit Judge for the Fifth Circuit. (Senate vote details).  Duncan has an extensive record of research and litigation on church-state and religious liberty issues. (See prior posting.)  In a press release from Becket, where Duncan served as general counsel for two years, the advocacy group's current president said in part:
At Becket, Kyle was a steadfast defender of religious liberty for people of all faiths and was known for his intelligence and evenhandedness. His generosity and respect for others has made him a great advocate, and will make him a fair and respected judge.

Tuesday, April 24, 2018

Supreme Court: Foreign Corporations Cannot Be ATS Defendants

The U.S. Supreme Court today on Jesner v. Arab Bank, (Sup. Ct., April 24, 2018), by a vote of 5-4, held that foreign corporations may not be defendants in suits under the Alien Tort Statute.  In the suit, plaintiffs claimed that terrorist attacks abroad had been facilitated by defendant, Arab Bank.  The portion of Justice Kennedy's opinion that commanded the vote of 5 justices said in part:
The ATS was intended to promote harmony in international relations by ensuring foreign plaintiffs a remedy for international-law violations in circumstances where the absence of such a remedy might provoke foreign nations to hold the United States accountable.... But here, and in similar cases, the opposite is occurring. Petitioners are foreign nationals seeking hundreds of millions of dollars in damages from a major Jordanian financial institution for injuries suffered in attacks by foreign terrorists in the Middle East. The only alleged connections to the United States are the CHIPS transactions in Arab Bank’s New York branch and a brief allegation regarding a charity in Texas.
Justices Thomas, Alito and Gorsuch each filed a concurring opinion.  Justice Sotomayor filed a dissenting opinion, joined by Justices Ginsburg, Breyer and Kagan. reports on the decision.

State Department Releases 2017 Country Reports On Human Rights

Last Friday, the U.S. State Department released its 2017 Country Reports on Human Rights Practices. The release was accompanied by remarks from Acting Secretary of State John Sullivan and a press briefing by Michael Kozak, Ambassador, Bureau of Democracy, Human Rights and Labor.  Secretary Sullivan highlighted a special concerns, including the ethnic cleansing of Rohingya in Burma.  In the the report on each individual country, the issue of Religious Freedom is covered by a cross reference to the Department of State’s International Religious Freedom Report for 2016, released in August 2017 (see prior posting).

Falun Gong Is A Religion Under FACE Act

In Zhang v. Chinese Anti-Cult World Alliance, (ED NY, April 23, 2018), a New York federal district court in an 84-page opinion ruled that a group of Falun Gong adherents may proceed on certain of its causes of action against individuals who have engaged in verbal and physical confrontations with plaintiffs.  The court explains:
Adherents of Falun Gong live in the United States. Some are citizens of this country. It is contended by them as plaintiffs that the Chinese Government has conspired with individuals to harm followers and suppress Falun Gong in the United States by organizing and encouraging the Chinese Anti-Cult World Alliance (“CACWA”) and individuals to inflict injuries on those who follow Falun Gong.
Defendants oppose Falun Gong in Flushing, Queens, New York, and elsewhere. They deny that Falun Gong is a religion. Following the position of the Chinese Government, their opposition is based upon characterizing Falun Gong as a “cult” indoctrinating its followers with beliefs that are dangerous, unscientific, and offensive.
One of plaintiffs' claims was brought under the Freedom of Access to Clinic Entrances Act of 1994 which allows a civil action by any person who has suffered physical interference with the exercise of the right of religious freedom at a place of religious worship. The court held that for purposes of this statute, Falun Gong is a "religion":
Expert testimony showed that Falun Gong is at its center concerned with ultimate questions of life and the universe. Dr. Waldron explained his view that Falun Gong is derived from Buddhism and other ancient Chinese religions. There is no genuine dispute for purposes of this case: Falun Gong “occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God.” Int’l Soc. For Krishna Consciousness, 650 F.2d at 440 (2d Cir. 1981). Falun Gong is a religion for purposes of the instant litigation. The jury will be so instructed.
Plaintiffs were also allowed to proceed with claims of assault and battery, and bias related intimidation under the New York Civil Rights Act.  Defendants were allowed to move ahead on civil rights and assault and battery counter-claims growing out of the same incidents. New York Law Journal reports on the decision.

Report Finds Increase In Anti-Muslim Bias Incidents

Yesterday CAIR released its 2018 Civil Rights Report which it titles Targeted (full text). Here is part of the Key Findings section of the report:
Anti-Muslim bias incidents have continued to increase in 2017. Additionally, a greater percentage of these instances have been violent in nature, targeting American children, youth, and families who are Muslim or perceived to be Muslim.
CAIR recorded a 17 percent increase in anti-Muslim bias incidents nationwide in 2017 over 2016.  This was accompanied by a 15 percent increase in hate crimes targeting American Muslims, including children, youth, and families, over the same period.
Of particular alarm is the fact that federal government agencies instigated 35 percent of all anti-Muslim bias incidents recorded in 2017. This represents an almost unprecedented level of government hostility toward a religious minority within the United States, and is counter to the American value of religious freedom.
Following the executive order barring the entry of individuals from several Muslim-majority countries into the U.S., the first version of which was signed on January 27, 2017, CAIR received a deluge of cases. Over the course of the year, CAIR recorded 464 incidents pertaining to the unconstitutional Muslim Ban. That is a staggering 18 percent of the total number of anti-Muslim bias incidents documented in 2017.

Monday, April 23, 2018

European Court Interprets Provision Allowing Churches To Hire On Basis of Religion

In Egenberger v. Evangelisches Werk für Diakonie und Entwicklung eV, (CJEU, April 17, 2018), the Court of Justice of the European Union in a preliminary ruling by its Grand Chamber interpreted Council Directive 2000/78/EC which bars employment discrimination on the basis of religion or belief.  The Directive creates an exception for existing national practices as to "occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief."  It provides that in such organizations:
a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos.
In the request for an interpretation from the German Federal Labor Court, the European Court held that effective judicial review must be available as to whether an occupational requirement that one hold particular religious beliefs is genuine, legitimate and justified.  It went on to define how national courts should interpret the exception:
 Thus the lawfulness ... of a difference of treatment on grounds of religion or belief depends on the objectively verifiable existence of a direct link between the occupational requirement imposed by the employer and the activity concerned. Such a link may follow either from the nature of the activity, for example where it involves taking part in the determination of the ethos of the church or organisation in question or contributing to its mission of proclamation, or else from the circumstances in which the activity is to be carried out, such as the need to ensure a credible presentation of the church or organisation to the outside world....
... [T]he church or organisation imposing the requirement is obliged to show, in the light of the factual circumstances of the case, that the supposed risk of causing harm to its ethos or to its right of autonomy is probable and substantial, so that imposing such a requirement is indeed necessary.
.... As the principle of proportionality is one of the general principles of EU law ..., the national courts must ascertain whether the requirement in question is appropriate and does not go beyond what is necessary for attaining the objective pursued.
Law & Religion UK has more on the decision.

Recent Articles of Interest

From SSRN:
From SSRN (Islamic Law):
From SmartCILP:

Sunday, April 22, 2018

Recent Prisoner Free Exercise Cases

In Merrick v. Ryan, (9th Cir., April 17, 2018), the 9th Circuit affirmed the dismissal of an inmate's free exercise and RLUIPA complaints regarding denial of religious materials and practices, finding that the district court properly relied on lack of sincere religious belief.  It also upheld dismissal of equal protection of establishment clause claims.

In Covington v. Bledsoe County Corrections, 2018 U.S. Dist. LEXIS 63311 (ED TN, April 16, 2018), a Tennessee federal district court allowed a Muslim inmate to move ahead with his complaint that the jail would not allow Muslim inmates to have a feast or allow outside Muslims in to cook or pray for Ramadan.

In Barfell v. Aramark, 2018 U.S. Dist. LEXIS 63582 (ED WI, April 16, 2018), a Wisconsin federal district court allowed an inmate to move ahead with his complaint about a 5-day delay in receiving a religious vegan diet and his claim that religious vegan trays routinely contain animal products. However he was not allowed to proceed with his complaint regarding the quality of the vegan food.

In Slater v. Teague, 2018 U.S. Dist. LEXIS 63263 (D CO, April 12, 2018), a Colorado federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 63605, March 21, 2018) and dismissed a former inmate's complaints regarding availability, timing and preparation of kosher food and his limited access to Jewish religious texts.

In Hearns v. Gonzales, 2018 U.S. Dist. LEXIS 63885 (ED CA, April 13, 2018), a California federal district court, adopting in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 28959, Feb. 22, 2018), allowed an inmate to move ahead with retaliation, free exercise and California Bane Act claims complaining that a correctional officer poured bleach on his legal papers and his prayer rug.

In Sims v. Wegman, 2018 U.S. Dist. LEXIS 64678 (ED CA, April 16, 2018), a California federal magistrate judge recommended dismissing a Nation of Islam inmate's complaint that he was refused an NOI, or alternatively a kosher diet.  Dismissal of one defendant was only because of failure to effect service.

In Johnson v. Roskosci, 2018 U.S. Dist. LEXIS 65405 (MD PA, April 17, 2018), a Pennsylvania federal magistrate judge recommended dismissing an inmate's complaint that beads and necklaces with religious significance were confiscated.

In Fusco v. Cty. of Putnam, 2018 U.S. Dist. LEXIS 65444 (SD NY, April 18, 2018), a New York federal district court allowed an inmate to proceed with his claim that he was prevented from attending Catholic mass during his placement in segregation.

Saturday, April 21, 2018

Cert. Denied In Abortion Protester's Case

Last Monday, the U.S. Supreme Court denied review in March v. Mills, (Docket No.17-689, cert. denied 4/16/2018) (Order List).  In the case, the U.S. 1st Circuit Court of Appeals upheld a provision of the Maine Civil Rights Act that prohibits a person making noise that can be heard within a health care facility where the intent is to jeopardize health or interfere with the delivery of health services.  The appeals court rejected a constitutional challenge brought by an abortion protester who is the pastor and co-founder of a church whose mission was described as including "plead[ing] for the lives of the unborn at the doorsteps of abortion facilities." (See prior posting.AP reported on the Supreme Court's denial of certiorari. [Thanks to Tom Rutledge for the lead.]

Friday, April 20, 2018

New Study Says Government Services and Religiosity Are Inversely Related

An interesting new study has been published: Miron Zuckerman, Chen Li & Ed Diener, Religion as an Exchange System: The Interchangeability of God and Government in a Provider Role, Personality and Social Psychology Bulletin (SAGE) (April 18, 2018). The Abstract reads:
An exchange model of religion implies that if a secular entity such as government provides what people need, they will be less likely to seek help from supernatural entities. Controlling for quality of life and income inequality (Gini), we found that better government services were related to lower religiosity among countries (Study 1) and states in the United States (Study 2). Study 2 also showed that during 2008-2013, better government services in a specific year predicted lower religiosity 1 to 2 years later. In both studies, a combination of better government services and quality of life was related to a particularly low level of religiosity. Among countries, government services moderated the relation between religiosity and two measures of well-being, such that religiosity was related to greater well-being only when government services were low. We discuss the relation between the exchange model and other theoretical approaches to religion.
Miami Herald reports on the study. For those with academic library privileges, the full text is available in he Sage Journals data base, or readers can request a copy from Research Gate. [Thanks to James Phillips for the lead.]

Settlement Order Entered In Chabad's Dispute With New Jersey Town

After lengthy mediation, a settlement has been reached in a lawsuit filed in 2016 by Chabad Jewish Center of Toms River, New Jersey and Rabbi Moshe Gourarie challenging Toms River's refusal to allow a Chabad Center to operate out of a large home and garage on 8 acres purchased by Gourarie in 2011. (See prior posting.)  An Order reflecting the settlement was entered in February (Chabad Jewish Center of Toms River, Inc. v. Township of Toms River, (D NJ, Feb. 5, 2018), but the settlement is just now being publicized.  As reported by Toms River Patch:
Rabbi Moshe Gourarie will be permitted to continue to hold religious gatherings at the Chabad's Church Road location, with certain stipulations.... Toms River Township must pay $122,500 to cover the Chabad's attorneys' fees, and an investigation by the federal Department of Justice into the township's zoning practices has been dropped.
Among the stipulations in the settlement are a limit of 35 individuals (in addition to family members) for most gatherings at the Center, with that number going up to 49 for six specific holidays each year.

Thursday, April 19, 2018

6th Circuit: Ohio's Cutoff of Non-Abortion Funding To Planned Parenthood Is Unconstitutional

In Planned Parenthood of Greater Ohio, Inc. v. Himes, (6th Cir., April 18, 2018), the U.S. 6th Circuit Court of Appeals held unconstitutional a 2016 Ohio law aimed at Planned Parenthood.  ORC §3701.34 prohibits the Ohio Department of Health from channeling funds it receives through six non-abortion-related federal health programs to any entity that performs or promotes nontherapeutic abortions, or which is affiliated with any entity that performs or promotes such abortions.  The appeals court held that the district court correctly applied the unconstitutional conditions doctrine in enjoining enforcement of the law, saying that "the unconstitutional-conditions doctrine is not limited to First Amendment rights."  According to the court, the question posed in this case is
whether Ohio may require a provider to surrender the right to provide safe and lawful abortions on its own “time and dime” as a condition of participating in government programs that have nothing to do with abortion. 
The court concluded:
Although Ohio women do not have a right to the programs, they do have a right not to have their access to important health services curtailed because their major abortion providers opted to protect women’s abortion rights rather than yield to unconstitutional conditions. 
 The court also held that the law imposes unconstitutional conditions on speech by prohibiting funds from going to any entity that promotes abortion:
§3701.034 affects programs that have nothing to do with abortion or family planning, and seeks to impose restrictions on recipients’ speech outside the six government programs the statute funds.
Columbus Dispatch, reporting on the decision, pointed out that two of the three judges handing down the ruling were Republican appointees. It also reports that the state Attorney General's office is reviewing the decision to determine whether it should seek en banc review or appeal to the U.S. Supreme Court. [Thanks to Tom Rutledge and Scott Mange for the lead.]

More Rulings In South Carolina Episcopal Church Split

Earlier this week, a South Carolina federal district court issued another opinion in the long-running battle between competing Episcopal Church factions in South Carolina.  While the underlying dispute over which faction owns church property has been litigated in state court, a federal court suit was filed alleging a false advertising claim under the Lanham Act. Episcopal Bishop Charles von Rosenberg who heads the minority of congregations in South Carolina that remain loyal to The Episcopal Church sued Bishop Mark Lawrence who heads the larger portion of the congregations that in 2012 broke away from the national church. Von Rosenberg alleged that Lawrence engaged in false advertising by asserting that he remained the Bishop of the Diocese.  In vonRosenberg v. Lawrence, (D SC, April 16, 2018), the court allowed plaintiffs to add as defendants the Diocese, parishes and trustee corporation affiliated with Bishop Lawrence.

In a perhaps more interesting second part of the opinion, the court refused to allow the suit to be expanded to assert a novel breach of trust claim.  Last year, the South Carolina Supreme Court decided the property issue largely in favor of those who remained loyal to The Episcopal Church. (See prior posting.)  Plaintiffs sought to add a claim that "the parishes have breached their fiduciary duties by allowing property held in trust for TEC to be used 'in connection with a denomination' other than TEC."  They sought an order against 28 Parishes "to remove from their vestries any persons who cannot demonstrate to this Court's satisfaction that they are capable of and willing to carry out their fiduciary obligations to The Episcopal Church...."  The court held that it is not "free to use trust law entangle itself with religion like a fly in a spider web."  It continued:
Entry of a judicial order telling 28 congregations whom they may or may not elect to their respective parish vestries would foster excessive judicial entanglement with religion....
Of course, there are other ways for TEC to enforce its property rights. For example, TEC could take legal possession of the parish property held in trust for its benefit, rather than asking a federal court to supervise the local congregation's use the property. 
Charleston Regional Business Journal reports on the decision.

New Jersey Supreme Court Says Grants To Churches Violate State Constitution

In Freedom From Religion Foundation v. Morris County Board of Chosen Freeholders, (NJ Sup.Ct., April 18, 2018), the New Jersey Supreme Court held that historic preservation grants to 12 churches (totaling $4.6 million) violate the Religious Aid Clause of the New Jersey Constitution.  That clause (Art. I, Sec. 3) provides that no person shall be obliged to pay taxes for building or repairing any church. The court concluded that there is no implied exception to this prohibition for historical preservation.

The Court went on to hold that this interpretation does not violate the Free Exercise Clause of the U.S. Constitution:
The [U.S. Supreme Court's] holding of Trinity Lutheran does not encompass the direct use of taxpayer funds to repair churches and thereby sustain religious worship activities. See 137 S. Ct. at 2024 n.3. We therefore find that the application of the Religious Aid Clause in this case does not violate the Free Exercise Clause.
Justice Solomon filed a concurring opinion:
The majority concludes that the present case exceeds the scope of Trinity Lutheran since Morris County’s taxpayer-funded grants “went toward ‘religious uses.’”... However, that conclusion ignores New Jersey’s separate and substantial government interest at stake in this case -- historical preservation. I believe that had Morris County’s program been applied in a fundamentally neutral manner, the Religious Aid Clause could not bar funding to an otherwise qualified religious institution.
FFRF issued a press release announcing the decision.  Daily Record reports on the decision.