Pastor's Wife Sues Over Kansas Israel Anti-Boycott Law

The ACLU today filed suit in federal district court in Kansas on behalf of a Mennonite woman challenging a Kansas statute that allows the state to enter contracts with companies or individuals only if they certify that they are not currently engaged in a boycott of Israel.  The complaint (full text) in Koontz v. Watson, (D KA, filed 10/11/2017), explains that Esther Koontz, the wife of a Mennonite pastor, following the recommendation in a resolution passed by the Mennonite Church USA is engaged in a boycott of consumer goods and services offered by Israeli companies and international companies operating in Israeli settlements in the occupied Palestinian territories.  The Kansas State Department of Education refuses to sign a contract with Koontz for her to serve as a teacher trainer in its Math & Science Partnerships program because she refuses to sign a boycott certification.  The complaint alleges that this violates her free speech and associational rights, amounts to viewpoint discrimination, and violates the equal protection clause of the 14th Amendment. The ACLU has also submitted a Memorandum (full text) in support of Koontz's motion for a preliminary injunction.  ACLU issued a press release announcing the filing of the lawsuit.

House Holds Hearings on International Religious Freedom

The House Oversight and Government Reform Committee this morning held hearings on The U.S. Government's Role in Protecting International Religious Freedom.  The prepared testimony of four witnesses who testified is available on the Committee's website.

Court Will Not Enjoin Medical Marijuana Limits In Suit By Minister

In Harris v. City of Clearlake, (ND CA, Oct. 10, 2017), a California federal district court refused to issue a preliminary injunction to prevent the city of Clearlake, California from enforcing its regulations on growing  of medical marijuana against a church that cultivated cannabis for sacramental purposes. The court denied the claim by the church itself because it was not represented by an attorney, and the church's minister who filed the case pro se cannot represent the church since he is not a member of the bar.  As to the claim by the church's minister on his own behalf, the court concluded that the city's regulations are a neutral law of general applicability, and that the minister failed to show that enforcement infringes on his right to use marijuana as a religious sacrament:

[T]he ordinance permits Harris to cultivate six living marijuana plants subject to permitting, enclosure and spatial restrictions. Harris has not shown that six plants are insufficient to meet his personal religious needs, or that he cannot obtain marijuana plants to satisfy his religious needs through other means.

Supreme Court Hears Oral Arguments In Alien Tort Statute Case

Today the U.S. Supreme Court heard oral arguments (full transcript of arguments) in Jesner v. Arab Bank, PLC.  At issue in the case is whether corporations may ever be held liable under the Alien Tort Statute, which allows aliens to sue in U.S. courts for a tort committed in violation of the law of nations or a treaty of the United States. Circuit Courts are split on the issue.  The underlying claims in this lawsuit are described in the petition for certiorari:

Petitioners are victims of terrorist attacks ... that took place between 1995 and 2005 in Israel, the West Bank, and Gaza. In five separate lawsuits ... they alleged that Arab Bank knowingly and intentionally financed this terrorism through activities in New York that led to the suicide bombings and other attacks that caused petitioners’ injuries.... Petitioners also allege that the Bank, through the involvement of its New York branch, knowingly distributed millions of dollars to terrorists and their families on behalf of terrorist front groups.

USA Today reports on today's oral arguments.

Supreme Court Dismisses One Travel Ban Case As Moot

In an Order (full text) issued yesterday, the U.S. Supreme Court dismissed as moot Trump v. International Refugee Assistance Project, the challenge to President Trump's second travel ban. As explained by a USA Today report:

"We express no view on the merits," the justices said in a one-page order.

The decision effectively wipes the record clean in the U.S. Court of Appeals for the 4th Circuit, one of two federal appeals courts that had struck down major portions of Trump's travel ban. That case began in Maryland.

A separate case from the 9th Circuit, based in California, remains pending because it includes a ban on refugees worldwide that won't expire until later this month. But the Supreme Court is likely to ditch that case, which began in Hawaii, as well....

Justice Sotomayor dissented, saying that instead she would dismiss  the writ of certiorari as improvidently granted. This would have maintained the 4th Circuit's opinion as precedent.

Vermont Supreme Court: Grant For Church Repairs Is Likely OK

In Taylor v. Town of Cabot, (VT Sup. Ct., Oct. 6, 2017), the Vermont Supreme Court vacated a preliminary injunction that a trial court had issued to block a municipal grant to a historic church for repairs to its building.  The grant came from funds that originated with the federal government but now belonged to the town to use consistent with federal regulations. The court held that plaintiffs have municipal taxpayer standing to challenge the grant under the state constitution's prohibition on compelled support of any place of worship (Chapter I, Article Three). In remanding the case for further proceedings, the court said in part:

The fact that the ultimate recipient of these funds is a church does not itself establish a violation of the Compelled Support Clause; the critical question is whether the funds will support worship. Chittenden Town Sch. Dist., 169 Vt. at 325, 738 A.2d at 550. In fact, denying the UCC secular benefits available to other like organizations might raise concerns under the Free Exercise Clause of the United States Constitution. To meet these concerns, plaintiffs will have to demonstrate that painting the church building and assessing its sills is more like funding devotional training for future clergy, as in Locke, than paying for a new playground surface on church property, as in Trinity Lutheran. Specified repairs to the church building itself admittedly fall somewhere between these two poles. In making their case, plaintiffs must persuade the court either that the Compelled Support Clause categorically precludes the use of public funds to pay for any repairs to a building that serves as a place of worship, without regard to the breadth and neutrality of the program pursuant to which the funding is provided, or that the specific repairs funded under this grant are prohibited. The first proposition is legally questionable; the second is not supported by the record.

Another Suit Challenges Expanded Contraceptive Mandate Religious Exemptions

As previously reported, last week the Trump Administration issued interim final rules expanding religious and conscience exemptions from the Affordable Care Act contraceptive coverage mandate. The ACLU immediately filed suit challenging the new rules.  Now the state of Washington has also filed suit challenging the expanded exemptions.  The complaint (full text) in State of Washington v. Trump, (WD WA, filed 10/9/2017), contends in part that the rules violate the Establishment Clause:

The Religious IFRs [Interim Final Rules] and the corresponding portion of the 2017 Updated Guidelines are intended to and have the effect of advancing, imposing, and endorsing certain religious interests. For example, they permit a for-profit business to impose the costs of its owners’ anti-contraception beliefs on employees (and their dependents). Based on the religious beliefs of an employer or institution of higher education, the Religious IFRs deny women access to contraceptive coverage that the ACA would otherwise secure.

The suit also alleges that the rules violate the equal protection component of the 5th Amendment and violate the Administrative Procedure Act. Washington AG Bob Ferguson issued a press release announcing the filing of the lawsuit.

Suit Challenges Scope of Religious Exemption From Vaccination Requirement

Sunday's Kansas City Star reports on a lawsuit filed recently by the grandparents of a 2-year old objecting on religious grounds to the vaccination of their grandson. While Kansas provides a religious exemption from the vaccination requirement, the complication here is that the toddler is in temporary custody of the Kansas Department for Children and Families, but has been placed in foster care with his grandparents.  This gives the state the right to decide on vaccination, even though the child's grandmother has filed a religious exemption statement with the school.  The suit claims that taking the decision away from the family is a violation of the right to privacy.  It also contends that the Kansas exemption statute is vague and imposes an unconstitutional religious test.  The statute requires a parent or guardian to certify "that the child is an adherent of a religious denomination whose religious teachings are opposed to such tests or inoculations."  Apparently the state requires the parent or guardian to name the specific religious denomination and its specific doctrine.  The grandparents say that it is impossible for a two year old child to be "an adherent of a religious denomination."

Free Exercise Objections To Forced Hospital Admission on Sabbath Are Dismissed

In Davenport v. Pottstown Hospital Company, LLC, (ED PA, Oct. 6, 2017), a Pennsylvania federal district court dismissed on various grounds the free exercise claims in a lawsuit by a Jewish plaintiff who on his Sabbath, in violation of his religious beliefs, was transported to a hospital by vehicle and coerced into signing voluntary commitment documents.  Also at the hospital his request for Passover kosher meals was ignored. Some of the defendants were dismissed on qualified immunity grounds; others were dismissed on state actor and other grounds.  Plaintiff was permitted to move ahead on his claim for intentional infliction of emotional distress.

FOIA Lawsuit Seeks Information On Case-By-Case Waiver of Travel Ban

Last week a Freedom of Information Act lawsuit was filed by three advocacy groups-- Muslim Advocates, Americans United for Separation of Church and State, and Southern Poverty Law Center-- seeking information on the waiver provisions of President Trump's second travel ban executive order.  The complaint (full text) in Muslim Advocates v. U.S. Department of State, (D DC, filed 10/5/2017) reads in part:

On June 27, 2017, Plaintiffs submitted a FOIA request ... seeking specific information related to the waiver provisions of Executive Order 13,780 ... allowing the Commissioner of CBP to determine on a case-by-case basis whether a national from one of the six majority Muslim countries identified in the Second Executive Order may gain entry into the country. These documents and information are critical to Plaintiffs’ ability to assist and advise affected travelers, and to understand the scope of the Second Executive Order’s waiver provision and the extent to which the government has implemented or is implementing its policies in a discriminatory or unconstitutional manner.

President Trump's Sept. 24 Proclamation revising the travel ban contains a similar waiver provision. Muslim Advocates issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Nathan S. Chapman, Adjudicating Religious Sincerity, (Washington Law Review, Vol. 92, 2017).
• Jena McGill, 'Now Its My Rights Versus Yours': Equality in Tension with Religious Freedoms, (Alberta Law Review, Vol. 53, No. 3, 2016).
• Mark Strasser, Obergefell, Dignity, and the Family, (19 Journal of Gender, Race and Justice 317-49 (2016)).
• Douglas NeJaime, The Family's Constitution, (32 Constitutional Commentary 413 (2017)).
• Mourad Greiss, Enforcing Abuse of Dominance Under a Sharia-Compliant Competition Law: A Consumer-Welfare Approach? Implications for MENA Competition Authorities, (Global Competition Litigation Review, Issue 3, pp.145-154, 2017).

From SmartCILP:

• Antony Barone Kolenc, Putting Faith in Europe: Should the U.S. Supreme Court Learn from the European Court of Human Rights?, 45 Georgia Journal of International & Comparative Law 1-25 (2016).
• Peter J. Smith & Robert W. Tuttle, God and State Preambles, 100 Marquette Law Review 757-833 (2017).
• Larry A. Golemon, Professional Identity Formation Throughout the Curriculum: Lessons from Clergy Education, [Abstract], 68 Mercer Law Review 649-663 (2017).

Court Says Tax Code's Parsonage Allowance Is Unconstitutional

In Gaylor v. Mnuchin, (WD WI, Oct. 6, 2017), a Wisconsin federal district court held that the parsonage allowance provision in Sec. 107(2) of the Internal Revenue Code violates the Establishment Clause. That section allows clergy to exclude from income the rental allowance they receive that is used to rent or provide a home.  In a 2013 decision, the same court reached a similar conclusion, but was reversed on appeal on standing grounds.  Plaintiffs cured those standing issues in the present case. The court summarized it holding:

any reasonable observer would conclude that the purpose and effect of § 107(2) is to provide financial assistance to one group of religious employees without any consideration to the secular employees who are similarly situated to ministers. Under current law, that type of provision violates the establishment clause.

As a remedy, however, the court issued only a declaratory judgment, and gave the parties the opportunity to file supplemental briefs on additional remedies such as a tax refund to plaintiffs who were taxed on their housing allowances from their employer (the Freedom From Religion Foundation), or an injunction of some sort.  FFRF issued a press release announcing the decision. [Thanks to Bob Ritter for the lead.]

Claim of Fraudulent Luring Into Conversion To Christianity Dismissed on Ecclesiastical Abstention Grounds

In Rymer v. Lemaster, (MD TN, Oct. 4, 2017), a Tennessee federal district court adopted a federal magistrate's recommendation of Aug. 30, 2017 (full text) and dismissed on ecclesiastical abstention grounds a suit by a college student against a Baptist minister. Student Lincoln Rymer claimed that Roger Oldham who was acting as his spiritual adviser wrongfully obtained student information about him, and used that information and an attractive female student to lure him into converting to Christianity.  Plaintiff claimed over $15.7 million in damages flowing from the conversion.

Recent Prisoner Free Exercise Cases

In Williams v. Blood, 2017 U.S. Dist. LEXIS 160062 (D UT, Sept. 27, 2017), a Utah federal district court dismissed an inmate's clam of retaliation for his complaining about his religious diet. The court agreed to appoint counsel for his complaint regarding ending of Islamic congregational meetings when no approved outside volunteer was available.

In Womack v. Perry, 2017 U.S. Dist. LEXIS 160271 (ED CA, Sept. 27, 2017), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that defendant cancelled bi-weekly Muslim services in one location because of a disagreement with an inmate there.

In Faver v. Clarke, 2017 U.S. Dist. LEXIS 160857 (WD VA, Sept. 29, 2017), a Virginia federal district court allowed a Muslim inmate to move ahead with RLUPA claims regarding wearing of a beard, the source from which he can acquire prayer oils, and his religious diet. His 1st Amendment claims were dismissed.

In Hall v. Helder, 2017 U.S. Dist. LEXIS 161626 (WD AR, Sept. 29, 2017), an Arkansas federal district court dismissed an inmate's complaint that there had been a 2-week delay in furnishing him a religious diet.

In Shabazz v. Lokey, 2017 U.S. Dist. LEXIS 162270 (WD VA, Sept. 30, 2017), a Virginia federal district court after a bench trial dismissed an inmate's suit charging confiscation of his Nation of Islam materials.  Officials had mistaken the materials for gang-related Nation of Gods and Earth materials.

In Corley v. City of New York, 2017 U.S. Dist. LEXIS 162761 (SD NY, Sept. 28, 2017), a New York federal district court allowed an inmate to move ahead with his complaint that he was prevented from acquiring a "Jewish ID" that would give his access to kosher meals, and was denied kosher meals once he received that ID.

In Cary v. Phol, 2017 U.S. Dist. LEXIS 163128 (WD MI, Oct. 3, 2017), a Michigan a Michigan federal district court permitted a Native american inmate to move ahead with his complaint that he was not allowed to wear his medicine bag for a 10-day period.

In Cagle v. Ryan, 2017 U.S. Dist. LEXIS 165387 (D AZ, Oct. 4, 2017), an Arizona federal magistrate judge (while dismissing a large number of plaintiff's claims) allowed an inmate who had converted from Christianity to Islam to move ahead with his complaint about the denial of a halal diet for some 9 months. UPDATE: The district court adopted the magistrate's recommendations at 2017 U.S. Dist. LEXIS 179944, Oct. 30, 2017.

In Sariaslan v. Rackley, 2017 U.S. Dist. LEXIS 165681 (ED CA, Oct. 4, 2017), a California federal magistrate judge, in a case on remand from the 9th Circuit, gave a Muslim inmate 30 days to file an adequate amended complaint setting out of his allegations that he purchased raisins, honey, and dates for his Ramadan meal, but never received them.

In O'Carroll v. Lanigan, 2017 U.S. Dist. LEXIS 165788 (D NJ, Oct. 6, 2017), a New Jersey federal district court permitted an inmate who practiced Odinism (Asatru) to move ahead with his complaint that while Christian and Muslim inmates are allowed to wear metal medallions, Odinist inmates are not permitted Thor's Hammer medallions made of metal. UPDATE: The same court issued essentially identical opinions in a similar claims by different inmates, in Scaffidi v. Lanigan, 2017 U.S. Dist. LEXIS 166012 (D NJ, Oct. 5, 2017), and Halstead v. Hughes, 2017 U.S. Dist. LEXIS 166607 (D NJ, Oct. 5, 2017).

Court Dismisses Challenge To "In God We Trust" On Currency

In Mayle v. United States, (ND IL, Sept. 29, 2017), an Illinois federal district court rejected challenges by a Satanist to the use of "In God We Trust" on U.S. currency.  The court rejected free exercise and compelled speech challenges, as well as equal protection and Congressional power claims.

Can Publicly Held Corporations Have Religion But Not Morals?

As previously reported, yesterday the Trump Administration issued Interim Final Rules that expand exemptions from the Affordable Care Act contraceptive coverage mandate.  The Interim Rules create exemptions for entities with religious or moral objections, but create an interesting distinction between business entities asserting religious objections and those asserting moral ones.  A religious objector to furnishing contraceptive coverage may be either "A closely- held for-profit entity," or "A for-profit entity that is not closely held." (Release at pg. 160-161).  On the other hand, the new exemption for businesses with moral objections to furnishing contraceptive coverage includes only "A for-profit entity that has no publicly traded ownership interests (for this purpose, a publicly traded ownership interest is any class of common equity securities required to be registered under section 12 of the Securities Exchange Act of 1934)." (Release at pg. 98).  The Release (at pp. 51-56), in a lengthy explanation, asks for comments during the comment period on whether this distinction should be retained, saying in part:

The fact that many closely held for-profit entities brought challenges to the Mandate has led us to offer protections that would include publicly traded entities with religious objections to the Mandate if such entities exist. But the combined lack of any lawsuits challenging the Mandate by for-profit entities with non-religious moral convictions, and of any lawsuits by any kind of publicly traded entity, leads us to not extend the expanded exemption in these interim final rules to publicly traded entities, but rather to invite public comment on whether to do so....

Trump Administration Expands Contraceptive Mandate Exemptions For Religious and Moral Objectors

Yesterday the Trump Administration issued Interim Final Rules (effective immediately) that expand exemptions from the Affordable Care Act contraceptive coverage mandate for organizations, colleges and businesses that have religious or moral objections to furnishing coverage for employees (or enrolled students), as well as for employees who object to having such coverage.  The new Interim rules were issued in two releases, one covering religious exemptions (full text), and the second covering moral objections (full text).  A press release from the Department of Health and Human Service explains the new rules:

The Departments of Health and Human Services, Treasury, and Labor are announcing two companion interim final rules that provide conscience protections to Americans who have a religious or moral objection to paying for health insurance that covers contraceptive/ abortifacient services. Obamacare-compliant health insurance plans are required to cover “preventive services,” a term defined through regulation. Under the existing regulatory requirements created by the previous administration, employers, unless they qualify for an exemption, must offer health insurance that covers all FDA-approved contraception, which includes medications and devices that may act as abortifacients as well sterilization procedures.

Under the first of two companion rules released today, entities that have sincerely held religious beliefs against providing such services would no longer be required to do so. The second rule applies the same protections to organizations and small businesses that have objections on the basis of moral conviction which is not based in any particular religious belief....

Key Facts about today’s interim final rules:

• The regulations exempt entities only from providing an otherwise mandated item to which they object on the basis of their religious beliefs or moral conviction.

• The regulation leaves in place preventive services coverage guidelines where no religious or moral objection exists – meaning that out of millions of employers in the U.S., these exemptions may impact only about 200 entities, the number that that filed lawsuits based on religious or moral objections....

• The regulations leave in place government programs that provide free or subsidized contraceptive coverage to low income women, such as through community health centers....

Comments on the Interim Final Rules are due by Dec. 5.

The ACLU immediately announced that it was filing suit to challenge the Interim Rules.  The complaint (full text) in  ACLU v. Wright, (ND CA, filed 10/6/2017) contends that the Interim Rules violate the Establishment Clause as well as the equal protection components of the 5th Amendment, and the Administrative Procedure Act.

Attorney General Issues Guidance On Protection of Religious Liberty

Yesterday, Attorney General Jeff Sessions issued a 25-page Memorandum (full text) setting out the Justice Department's understanding of the scope of religious liberty protections. In a covering document, Sessions directed that the interpretive guidance in the Memorandum immediately be incorporated by the Department and U.S. Attorneys in all litigation, interpretative guidance and grant administration.  Among other things, the Memorandum provides:

RFRA applies even where a religious adherent seeks an exemption from a legal obligation requiring the adherent to confer benefits on third parties.

Sessions' Memorandum specifically endorses the Clinton Administration's 1997 Guidelines on Religious Exercise and Religious Expression in the Federal Workplace , saying:

The Clinton Guidelines have the force of an Executive Order, and they also provide useful guidance to private employers about ways in which religious observance and practice can reasonably be accommodated in the workplace.

AP reports on the Attorney General's Memorandum.saying that it "undercuts federal protections for LGBT people."

Defense Department Drops Training Material References To Southern Poverty Law Center

As previously reported, In August a Florida Christian Ministry filed suit against the Southern Poverty Law Center for damages allegedly suffered when the organization was placed on the SPLC's Anti-LGBT Hate Group list. Some other Christian groups have also sharply criticized the Southern Poverty Law Center for listing them as hate groups because of their stance on same-sex relationships.  Earlier this week, The Daily Caller reported that the Defense Department has officially severed all ties with the Southern Poverty Law Center.  DOD's Defense Equal Opportunity Management Institute has now removed all references to the SPLC in its training material.

DOJ Says Title VII Does Not Cover Transgender Discrimination

On Oct. 4, Attorney General Jeff Sessions issued a Memorandum (full text) reversing a prior Justice Department interpretation of the extent to which Title VII of the 1964 Civil Rights Act prohibits discrimination against transgender individuals.  Saying that it is dealing with "a conclusion of law, not policy", the Memorandum says in part:

Title VII's prohibition on sex discrimination encompasses discrimination between men and women but does not encompass discrimination based on gender identity per se, including transgender status.  Therefore, as of the date of this memorandum, which hereby withdraws the December 15, 2014, memorandum, the Department of Justice will take that position in all pending and future matters (except where controlling lower-court precedent dictates otherwise, in which event the issue should be preserved for potential further review).

The Justice Department must and will continue to affirm the dignity of all people, including transgender individuals.  Nothing in this memorandum should be construed to condone mistreatment on the basis of gender identity, or to express a policy view on whether Congress should amend Title VII to provide different or additional protections.  Nor does this memorandum remove of reduce the protections against discrimination on the basis of sex that Congress has provided all individuals, including transgender individuals, under Title VII.

National Law Journal reports on the AG's action.