Tuesday, September 19, 2017

State My Require Inspection of Release Time School Buses

In CBM Ministries of South Central Pennsylvania v. Richards, (MD PA, Sept. 19, 2107), a Pennsylvania federal district court held that to the extent state school bus inspection regulations apply to buses of a religious organization, the regulations do not violate the Free Exercise Clause.  They are a neutral and generally applicable regulation.  At issue were buses that are used to transport students from public schools to an off-premise release time Bible education program.

Report Claims DOJ Was Divided Over Whether To File Amicus Brief In Masterpiece Cakeshop

As previously reported, earlier this month the Department of Justice filed an amicus brief in the Supreme Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, siding with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  Last week National Law Journal reported that the Department was divided on whether to file an amicus brief, although a Justice Department spokesperson denied  the report.The paper says:
Senior lawyers in the civil and civil rights divisions and within the U.S. solicitor general’s office said the department should not take a position in the case...
[Acting Solicitor General Jeffrey] Wall was the lead attorney among what former Justice Department lawyers said was an unusually large group of attorneys—eight in all—whose names appeared on the cover of the court filing....
Absent from the government’s Masterpiece Cakeshop brief was any career deputy solicitor general, whose name routinely appears on amicus and merits filings from the Justice Department.

Trump Issues Jewish High Holy Day Greetings

President Trump yesterday issued a Jewish High Holy Day Message (full text), saying in part:  "On behalf of all Americans, I want to wish Jewish families many blessings in the New Year."

Monday, September 18, 2017

Recent Articles of Interest

From SSRN:

Israel's High Court Erodes Rabbinate's Monopoly On Kosher Certification

By a vote of 5-2, last week an expanded panel of Israel's High court of Justice handed down a ruling which moves toward breaking the Chief Rabbinate's monopoly on designation of which restaurants in the country are kosher.  As reported by Haaretz and Arutz Sheva, the ruling stops short of allowing alternative private kashrut certification. It upholds the Rabbinate's position that Israel's Kosher Fraud Law prohibits a business from representing itself as "kosher" without a certification approved by the Chief Rabbinate. However the decision does allow businesses "to display a true representation about the standards they follow and the way they are supervised in keeping them, which also includes an explicit clarification that they do not have a kashrut certificate."  The court added:
Assuming it is telling the truth, nothing prevents a food establishment from clarifying that the meat it serves was purchased from a slaughterhouse that carries kosher certification; and that the fish it serves are only those with fins and scales.

Sunday, September 17, 2017

Recent Prisoner Free Exercise Cases

In Canada v. Gregg, 2017 U.S. Dist. LEXIS 146892 (WD VA, Sept. 12, 2017), a Virginia federal district court dismissed a Muslim inmate's complaint that changes in the common fare diet menu caused him to lose substantial weight.

In Goins v. Fleming, 2017 U.S. Dist. LEXIS 146891 (WD VA, Sept. 12, 2017), a Virginia federal district court allowed a Muslim inmate to move ahead with his complaint regarding kufi use during pod recreation and bathroom access during Sunni group services.  However the court dismissed a number of other claims regarding religious diet and location and monitoring of Sunni religious services.

In Jones v. North Carolina Department of Public Safety, 2017 U.S. Dist. LEXIS 147950 (WD NC, Sept. 12, 2017), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that he was required to shave his beard before he could go to a work-release job interview.

In Stansel v. Sorey, 2017 U.S. Dist. LEXIS 147985 (ND FL, Sept. 13, 2017), a Florida federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 148260, Aug. 8, 2017) and dismissed a Muslim inmate's complaint that an offer by an "Islamic sponsor" to provide funding for Ramadan and Eid al Fitr observances was rejected, while sponsors were accepted for other religious groups.

In Frazier v. Florida Department of Corrections, 2017 U.S. Dist. LEXIS 148814 (Sept. 14, 2017), a Florida federal district court dismissed a Jewish inmate's complaints regarding the adequacy and availability of a kosher diet.

In Johnson v. Swibas, 2017 U.S. Dist. LEXIS 149163 (D CO, Sept. 13, 2017), a Colorado federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 150250, July 28, 2017) and dismissed a Messianic Jewish inmate's complaint that he could not obtain an alternative kosher diet without confirmed medical food allergy test results.

Church's Objections To Zoning Conditions Dismissed On Ripeness Grounds

In Life Covenant Church, Inc. v. Town of Colonie, (ND NY, Sept. 13, 2017), a New York federal district court dismissed on ripeness grounds a church's objections to conditions placed in the zoning approval for its construction of a new building. The church contended that conditions limiting the starting time for religious services and the number of daily services violated its rights under the state and federal constitutions as well as RLUIPA.  The court held that the judicial challenge is not ripe because the church has not received a final decision on its request to the city that it amend its prior approval to eliminate the objectionable conditions.

Farmer's Market Must Issue Vendor's Permit To Orchard That Refuses To Host Same-Sex Weddings

In Country Mill Farms, LLC v. City of East Lansing, (WD MI, Sept. 15, 2017), a Michigan federal district court issued a preliminary injunction requiring a Michigan city to allow an orchard owner to sell produce at its Farmer's Market even though he refuses on religious grounds to host same-sex weddings at his orchard.  After Country Mill posted its policy against hosting same-sex weddings on its Facebook page, the city amended its Farmer's Market Vendor Guidelines to require all vendors to comply with the city's civil rights ordinances not only at the Farmer's Market, but "as a general business practice." It denied Country Mill a vendor's license because of non-compliance with the public accommodation law which, among other things, prohibits publishing a statement that indicates a business will discriminate on the basis of sexual orientation.

The court found that Country Mill had shown a substantial likelihood of success on its First Amendment retaliation claim: The city took action chilling the orchard owner's speech about his religious beliefs. Plaintiff also showed a likelihood of success on his free exercise claim:
The context in which the Vendor Guidelines were amended and then applied to Country Mill supports Plaintiffs’ claim that their religious beliefs or their religiously motivated conduct was the target of the City’s actions.... [T]he City’s hostility to Plaintiffs’ religion or religious conduct was ... manifested when the City used its facially neutral and generally applicable ordinance to deny Plaintiffs’ Vendor Application.
ADF issued a press release on the decision, with links to some of the other pleadings in the case.

Friday, September 15, 2017

President Holds High Holiday Teleconference With Jewish Leaders, Absent Many Who Boycotted the Annual Event

As reported by the Washington Post, today President Trump (along with Jared Kushner) participated in the traditional annual telephone call with Jewish leaders in advance of Rosh Hashanah. This year, however, leaders of the Reform, Conservative and Reconstructionist denominations boycotted the call in protest of Trump's remarks last month after Charlottesville.  In a statement, these leader charged that "The president’s words have given succor to those who advocate anti-Semitism, racism, and xenophobia." (Background.)  The White House released a transcript of remarks by the President and by Kushner at today's teleconference.  There the President said in part:
I am grateful for the history, culture, and values the Jewish people have given to civilization. We forcefully condemn those who seek to incite anti-Semitism, or to spread any form of slander and hate -- and I will ensure we protect Jewish communities, and all communities, that face threats to their safety.

Louisiana AG Opinion Says ABA Model Rule Barring Discrimination Is Unconstitutional

The Louisiana State Bar Association is considering adopting an amendment to its Rules of Professional Conduct that would define professional misconduct as including:
conduct in connection with the practice of law that the lawyer knows or reasonably should know involves discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability.  This rule does not prohibit legitimate advocacy when race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability are issues,nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.
This is a narrower version of ABA Model Rule 8.4(g) which the ABA House of Delegates adopted in 2016.  Last week, the Louisiana Attorney General's Office issued Attorney General's Opinion 17-0114 which concludes that the ABA version of the Model Rule is likely unconstitutional under the First and Fourteenth Amendments, and that while Louisiana's proposed version seeks to avoid many of the constitutional problems, it still suffers from some of the same vagueness and overbreadth issues as does the ABA rule.

In addition to finding that the ABA Model Rule is overbroad and vague, the Opinion also concluded that it violates associational and religious liberty protections, saying in part:
Lawyers participate in a wide variety of associations that engage in expressive conduct which could run afoul of ABA Model Rule 8.4(g), including faith-based legal organizations and activist organizations that promote a specific political or social platform....
ABA Model Rule 8.4(g) could also result in lawyers being punished for practicing their religion.  The United States Supreme Court specifically noted in Obergefell v. Hodges that "those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."  However this type of advocacy appears to be prohibited by ABA Model Rule 8.4(g).... Under Rule 8.4(g), a lawyer who acts as a legal advisor on the board of their church would be engaging in professional misconduct if they participated in a march against same-sex marriage or taught a class at their religious institution against divorce....
AP reports on the Attorney General's Opinion.

9th Circuit: Facebook Is Immune From Liability For Blocking Access To Sikh Group's Page

In Sikhs for Justice, Inc. v. Facebook, Inc., (9th Cir., Sept. 13, 2017), the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's dismissal of a religious discrimination claim against Facebook. (See prior posting.) In the lawsuit, brought by a Sikh human rights group, plaintiffs contend that Facebook violated the public accommodation provisions of the 1964 Civil Rights Act when it blocked access to SJF's Facebook page in India.  The suit contends that Facebook collaborated with the government of India in retaliating against SFJ for its online campaign complaining about the treatment of Sikhs and promoting an independent Sikh state.  The 9th Circuit held that Facebook is immune from civil liability under Section 230 of the Communications Decency Act, and that Title II of the 1964 Civil Rights Act does not provide an exception to this immunity.

Former USCIRF Commissioner Cromartie Dies

A press release yesterday from the U.S. Commission on International Religious Freedom reported that former USCIRF Commissioner Michael Cromartie died on Aug. 28. The release said in part:
Mr. Cromartie was a prolific writer who edited more than a dozen books on religion and politics.  He also served as a primary source for the media as reporters sought to understand the intersection of politics and religion.  He has been described as being part of a wave of evangelical Christians who believed that their faith required an active engagement in both politics and public life.
The New York Times (Sept. 1) carried his Obituary.

Animal Rights Group Sues Police Over Lax Enforcement Against Kapparot Ritual

As the Jewish High Holidays approach, animal rights groups in California are again (see prior posting) attempting to stop the practice of using chickens for the pre-Yom Kippur ritual of kapparot. The complaint (full text) in Animal Protection and Rescue League v. City of Los Angeles, (CD CA, filed 9/12/2017), contends that the the Los Angeles and Irvine police departments are violating the Establishment Clause by "actively protecting, encouraging and ratifying illegal conduct solely because it is motivated by religious belief." Plaintiffs say they want to make citizens' arrests of those who kill and discard chickens in their presence, but that police are deployed in large numbers to prevent such arrests. They say that under California Penal Code Secs. 597(a) and 599c, all intentional killing of animals, except when used for food, are outlawed. Orange County Register reports on the lawsuit. [Thanks to Steven H. Sholk for the lead.]

European Court Affirms Jurisdiction of Ecclesiastical Courts

In Nagy v. Hungary, (ECHR, Sept. 14, 2017), the Grand Chamber of the European Court of Human Rights, by a vote of 10-7, upheld the exclusive jurisdiction of ecclesiastical courts over contractual disputes that are matters of ecclesiastical law.  In the case, a pastor in the Reformed Church of Hungary was suspended, and ultimately removed, from his position through church disciplinary proceedings because of statements he had made in a local newspaper.  He then sued in civil courts for compensation that he says he was owed for the periods prior to his termination.  When lower courts dismissed his claims, he argued that this violated his right under Article 6(1) of the European Convention on Human Rights to a fair trial by an independent and impartial tribunal established by law in determining his civil rights.  The European Court's majority opinion held in part:
... [A]pplicant’s claim ... concerned an assertion that a pecuniary claim stemming from his ecclesiastical service, governed by ecclesiastical law, was actually to be regarded as falling under the civil law.... Given the overall legal and jurisprudential framework existing in Hungary ..., the domestic courts’ conclusion that the applicant’s pastoral service had been governed by ecclesiastical law and their decision to discontinue the proceedings cannot be deemed arbitrary or manifestly unreasonable.... [This] Court cannot but conclude that the applicant had no “right” which could be said, at least on arguable grounds, to be recognised under domestic law. To conclude otherwise would result in the creation by the Court, by way of interpretation of Article 6 § 1, of a substantive right which had no legal basis in the respondent State.
Four separate dissenting opinions were also filed. ADF issued a press release regarding the decision.

Thursday, September 14, 2017

6th Circuit Rejects Law Prof's Claim That $666 Raise Was Retaliatory As "Mark of the Beast"

In Lifter v. Cleveland State University, (6th Cir., Sept. 12, 2017), the U.S. 6th Circuit Court of Appeals affirmed an Ohio federal district court's dismissal of a lawsuit by two former Cleveland State University Law School professors (husband and wife) who claim that the dean had retaliated against them because of the husband's activity in unionizing the faculty.  Plaintiff Sheldon Gelman argued that part of the retaliation was awarding him a raise of only $666 for the year.  He contended that not only did he deserve more, but that the dean chose the $666 figure as an intentional invocation of the biblical "mark of the beast."  The court dismissed Gelman's claim, saying:
Construing the facts in the light most favorable to Gelman, he cannot show that his union organizing activities were a substantial or motivating factor in these alleged injuries.
Law.com reports on the decision.

Santa Fe Diocese Releases List of Priests Found Guilty of Sex Abuse

On Tuesday, the Catholic Archdiocese of Santa Fe released the names of 74 priests, deacons and brothers who have been found guilty of sexually abusing a child, either by the Church (canon law), the State (criminal law), or both. The list also includes those who were laicized after being accused of sexually abusing a minor, and those publicly accused where criminal proceedings were not completed (often because of death).  AP, reporting on the release, says that it comes after decades of pressure from victims and their families.

Wednesday, September 13, 2017

Congress Sends Joint Resolution Condemning Hate Groups To President

Yesterday Congress gave final passage to Senate Joint Resolution 49 (full text) "condemning the violence and domestic terrorist attack that took place during events between August 11 and August 12, 2017, in Charlottesville, Virginia."  The Joint Resolution, that now goes to President Trump for his signature, reads in part:
Congress ... urges— ... the President and his administration to—
(i) speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy; and (ii) use all resources available to the President and the President’s Cabinet to address the growing prevalence of those hate groups in the United States; and 
[urges] the Attorney General to work with (i) the Secretary of Homeland Security to investigate thoroughly all acts of violence, intimidation, and domestic terrorism by White supremacists, White nationalists, neo-Nazis, the Ku Klux Klan, and associated groups in order to determine if any criminal laws have been violated and to prevent those groups from fomenting and facilitating additional violence....
Politico reporting on the action by Congress adds:
Though resolutions are often passed to offer the sense of the House or Senate on various issues, they rarely head to the president for consideration. But backers of this measure structured it as a "joint resolution," a move ensuring that passage would require Trump to weigh in on an issue that has dogged his presidency for weeks.

Malaysian Prime Minister Urges Trump To Support Moderate Muslim Regimes

Yesterday President Trump welcomed Malaysian Prime Minister Najib Abdul Razak to the White House.  Both leaders spoke briefly (full text of remarks) in the Cabinet Room before their private meeting. Among other things, Razak urged Trump to support progressive Muslim regimes, saying in part:
Daesh, IS, Al-Qaeda, Abu Sayyaf  ... are the enemy of the United States, they are also the enemy of Malaysia, and we will do our part to make sure that our part of the world is safe.
We will also contribute in terms of the ideological warfare because you need to win the hearts and minds.  And the key to it is to support moderate and progressive Muslim regimes and governments around the world, because that is the true face of Islam; that is the authentic face of Islam.  The more you align with progressive and moderate regimes, the better it would be in terms of winning the hearts and minds of the Muslim world.
President Trump responded: "Right".

Israel's High Court Strikes Down 2015 Law On Draft Exemptions For Ultra-Orthodox

Israel's High Court of Justice yesterday struck down a 2015 law that was intended to reverse attempts enacted a year earlier to increase the number of ultra-Orthodox young people who are drafted into the Israel Defense Forces.  As reported by Times of Israel:
Eight justices, led by Chief Justice Miriam Naor, ruled that the current arrangement was increasing the inequality in the “draft burden,” rather than reducing it, which was the law’s stated purpose and the grounds for its constitutionality. That made it an “unconstitutional law,” the justices ruled.
One dissenter, Justice Noam Solberg, argued that the law had not been in effect long enough to determine its effect on the military draft, and therefore no determination could yet be made about its constitutionality.
The Court gave the Knesset one year to come up with a different arrangement.  Ultra-Orthodox members of the Knesset strongly criticized the decision.  For example, Deputy Education Minister Meir Porush of the United Torah Judaism party said:
The High Court of Justice’s judicial activism completely empties Knesset legislation of importance, turning it into a dead letter. Today’s decision just drives another stake into the coffin. The High Court of Justice is eager for the apocalypse.

Tuesday, September 12, 2017

Jockeying In Travel Ban Litigation Continues In Supreme Court

As previously reported, last week the U.S. 9th Circuit Court of Appeals in State of Hawaii v. Trump affirmed a district court's decision on the scope of President Trump's second travel ban executive order.  The decision essentially found that the executive branch had read an earlier order by the Supreme Court too narrowly both as to the travelers and refugees who could be excluded under the travel ban pending a Supreme Court decision on the merits. In a filing on Sept. 11, the government asked Justice Kennedy, the Circuit Justice for the 9th Circuit, to stay the portion of the 9th Circuit's mandate dealing with refugees who are still covered by the travel ban. The next day, Justice Kennedy issued an order temporarily staying that portion of the 9th Circuit's mandate. Today, the state of Hawaii filed its response, arguing in part:
The Government has returned to this Court, for the third time, to ask that it superintend the application of the injunction in this case. The first time the Government was here ... this Court set forth the legal standard that governs the injunction of Executive Order 13,780 ...: Any foreign national with a “bona fide relationship” with a U.S. entity—that is, a relationship that is “formal, documented, and formed in the ordinary course”—is protected from EO-2’s travel and refugee bans.... The second time, on July 19, 2017, the Court denied the Government’s request to “clarify” that the injunction does not apply to refugees who have received a formal assurance from a refugee resettlement agency, instead directing the Ninth Circuit to resolve the question....
The Ninth Circuit faithfully applied both of those directives. It determined ... that a refugee has a “bona fide” relationship with a resettlement agency that signs a formal, written assurance to provide for her housing, food, and other essentials of life. And the Ninth Circuit rejected the Government’s invitation to treat this Court’s July 19, 2017 stay as the merits decision the Court had declined to issue; instead, it performed the diligent analysis that is expected of an appellate court.
SCOTUSblog reports on developments.

UPDATE: On Sept. 12, the U.S. Supreme Court issued an order (full text) staying the 9th Circuit's mandate as it applies to refugees covered by a formal assurance of placement from a resettlement agency.  Refugees from countries covered by the travel ban whose only connection to the United States is such an assurance of placement will be able to be excluded, at least until the Supreme Court decides on the validity of the travel ban on the merits this term.

Pope Criticizes Trump's Action On DACA

Pope Francis yesterday on his way back to the Vatican from his trip to Colombia was sharply critical of President Trump's recent move to repeal DACA. As reported by Newsweek, the Pope said in part:
The president of the United States presents himself as pro-life, and if he is a good pro-lifer, he understands that family is the cradle of life and its unity must be protected.