Religion Clause

Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
  1. Tomorrow the third annual Women's March is scheduled in a number of cities around the country.  But as reported by Vox, concerns about anti-Semitism surround some leaders of the movement and has led to the withdrawal of sponsorship by groups such as the Southern Poverty Law Center and, apparently, the Democratic National Committee:
    [T]his year, the leaders of Women’s March Inc. — one of the organizations that grew out of the original march, and the most visible public face of the march today — are facing calls to step down. The reasons include criticisms of their association with Nation of Islam leader Louis Farrakhan and allegations that they made anti-Semitic remarks in planning meetings.
    Women’s March Inc. is a national organization led by four activists from New York City — Tamika Mallory, Linda Sarsour, Carmen Perez, and Bob Bland — who helped organize the first march in Washington, DC, in 2017. The group also has local chapters that are planning marches in cities around the country this year, though other local marches are not affiliated with Women’s March Inc.
  2. In Sioux City, Iowa on Wednesday, a federal trial court jury rejected a claim by plaintiff who had been hired as a psychiatric security specialist that his firing during his probationary period violated his free speech and free exercise rights.  As reported by the Sioux City Journal, plaintiff Michael Mial pointed to the request by his supervisors at a state sex-offender civil commitment unit that he stop using "In Christ" in his personalized signature block on internal e-mails sent to other employees.
  3. On Wednesday, the U.S. Senate passed Senate Resolution 19 by unanimous consent.  The Resolution was introduced by Nebraska Sen. Ben Sasse in response to questions raised in connection with last month's Judiciary Committee hearing on the nomination of Brian C. Buescher for a seat on the United States District Court for the District of Nebraska. At that hearing, Senators Mazie Hirono (D-HI) and Kamala Harris (D-CA) questioned whether Buescher's membership in the Knights of Columbus would bias his consideration on issues such as abortion rights and same-sex marriage. (Background). Resolution 19 after a lengthy Preamble, provides:
    That it is the sense of the Senate that disqualifying a nominee to Federal office on the basis of membership in the Knights of Columbus violates clause 3 of article VI of the Constitution of the United States, which establishes that Senators ‘‘shall be bound by Oath or Affirmation, to support th[e] Constitution’’ and ‘‘no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States’’.
    National Catholic Register reports on the Resolution.
  4. In Walsh v. Friendship Village of South County, (ED MO, Jan. 16. 2019), a Missouri federal district court, relying on a 1989 decision by the 8th Circuit under Title VII, held that sexual orientation discrimination is not covered by the federal Fair Housing Act. At issue was the refusal, on religious grounds, of a senior living community to rent an apartment to a married lesbian couple. Courthouse News Service reports on the decision.
  5. In Young Advocates for Fair Education v. Cuomo, (ED NY, Jan. 16, 2019), New York federal district court dismissed for lack of standing and ripeness a challenge to the constitutionality of the "Felder Amendment" which plaintiff claims was designed to reduce the level of secular education that needs to be offered by Hasidic Jewish schools in New York. Plaintiffs alleged that the Felder Amendment creates an unconstitutional preference for Hasidic Jewish schools. While not reaching the merits, the court suggested that state regulations may have made standards for religious schools more rigid. Yeshiva World reports on the decision.
  6. Law 360 reports [subscription required] that a Florida federal court jury on Monday awarded $36,000 for lost wages, $500,000 for emotional pain and $21 million in punitive damages to a Hilton Hotel dishwasher who was fired for swapping shifts with co-workers to allow her to have Sundays off for religious reasons.  Plaintiff was a member of the Catholic missionary group, Soldiers of Christ Church.  Florida has a statutory cap on damages which will lead to the court's reducing punitive damages. [Thanks to Douglas Laycock via Religionlaw for the lead.]
  7. Today (Jan. 16) is Religious Freedom Day-- the 233rd anniversary of the enactment of the Virginia Statute for Religious Freedom. On Tuesday, President Trump issued a Presidential Proclamation calling on Americans "to commemorate this day with events and activities that remind us of our shared heritage of religious liberty and that teach us how to secure this blessing both at home and around the world."  The Proclamation says in part:
    Unfortunately, the fundamental human right to religious freedom is under attack.  Efforts to circumscribe religious freedom — or to separate it from adjoining civil liberties, like property rights or free speech — are on the rise.  Over time, legislative and political attacks on religious freedom have given way to actual violence.  Last October, we witnessed a horrific attack on the Tree of Life Synagogue in Pittsburgh, Pennsylvania — the deadliest attack on the Jewish community in our Nation’s history.  Tragically, attacks on people of faith and their houses of worship have increased in frequency in recent years.
  8. In Wunderlich v. Germany, (ECHR, Jan. 10, 2019), the European Court of Human Rights in a Chamber Judgment upheld Germany's three-week removal of four children from their parents' home after the parents insisted on home schooling them and refused to send them to state schools.  The court held that there was no violation of Art. 8 of the European Convention on Human Rights (Right to Respect for Private and Family Life). the Court said in part:
    The Court finds that the enforcement of compulsory school attendance, to prevent social isolation of the applicants’ children and ensure their integration into society, was a relevant reason for justifying the partial withdrawal of parental authority. It further finds that the domestic authorities reasonably assumed – based on the information available to them – that children were endangered by the applicants by not sending them to school and keeping them in a “symbiotic” family system.
    ADF issued a press release announcing the decision.
  9. Tablet Magazine yesterday reports on the surprising popularity of kosher food requests in prisons, saying in part:
    According to the 2013 numbers, Jews are seven percent of the state prison population of New York; the fourth largest religious denomination after Protestant, Catholic and Muslim (in that order). If the numbers were accurate it would mean that nearly twice as many Jews were locked up that year as members of the Nation of Islam. But the truth is that many inmates lie and claim to be Jewish once they enter the prison system. And why do they do it? Not as a hedge against the impending arrival of the Moshiach. They do it for the kosher food.
  10. Yesterday in Commonwealth of Pennsylvania v. Trump,(ED PA, Jan 14, 2019), a Pennsylvania federal district court issued a nationwide preliminary injunction preventing enforcement of the Trump Administration's expanded exemptions for those asserting religious or moral objections to the Affordable Care Act's contraceptive coverage mandate.  In addition to finding procedural problems in the way the rules were adopted, the court concluded:
    The Final Rules—just as the IFRs before them—exceed the scope of the Agencies’ authority under the ACA, and, further, cannot be justified under RFRA.
    A California court issued a similar, but more limited injunction on Sunday. (See prior posting.) Washington Examiner reports on the decision.
  11. Yesterday, Ohio Governor Mike DeWine signed Executive Order 2019-05D prohibiting discrimination by any state agency, board or commission.  The Order prohibits discrimination on the basis of race, color, religion, gender, gender identity or expression, national origin (ancestry), military status (past, present or future), disability, age (40 years or older), status as a parent during pregnancy and immediately after the birth of a child, status as a parent of a young child, status as a foster parent, genetic information, or sexual orientation. Washington Blade reports on the governor's action, saying in part:
    DeWine’s action stands in contrast to the executive order signed by Florida Gov. Ron DeSantis, who excluded LGBT people in a non-discrimination that included other categories, including race, religion and sex....
    The Ohio Republican’s action may come as a surprise to observers who know his history as a President Trump-supported candidate and an Ohio state attorney general who defended the state’s marriage ban in court.
  12. In State of California v. Health and Human Services, (ND CA, Jan. 13, 2019), a California federal district court granted a preliminary injunction against enforcement of the the Trump Administration's broadened religious and moral exemptions from the ACA's contraceptive coverage mandate. The court enjoined enforcement of the Final Rules that were scheduled to take effect today, but only in  the 13 states and the District of Columbia that are plaintiffs in the case.  The court concluded that the plaintiffs are likely to succeed on their claim that the exemptions are inconsistent with the Women's Health Amendment, and that the religious exemption is likely not required by the Religious Freedom Restoration Act. The court agreed with decisions in nine Courts of Appeal that the Obama Administration accommodation for religious objectors does not impose a substantial burden on the free exercise of religion. Politico reports on the decision.
  13. From SSRN:
    From SmartCILP:
    • Omri Ben-Zvi, The Unavailability of Religious Arguments, 54 Idaho Law Review 703-728 (2018).
    • Frederick B. Jonassen, The "Ave Maria" Effect, 54 Idaho Law Review 729-811 (2018).
    • Islamic Law, Society, and the State. Introduction by Tamir Moustafa, Jeffrey Adam Sachs; articles by Mona Oraby, Katherine Lemons, Jeffrey Adam Sachs, Michael G. Peletz, Tamir Moustafa. 52 Law & Society Review 560-708(2018).
    • Cesar Arjona & Greg Jehle, Islamic Law and the Limits of Amorality: Reconceptualizing the Legal Ethics of Transnational Islamic Finance, [Abstract], 27 Transnational Law Contemporary Problems 249-275 (2018).
    • Religious Freedom. Articles by Robin Fretwell Wilson, David Orentlicher, Shaakirrah R. Sanders, David M. Smolin, Allison M. Whelan. 8 UC Irvine Law Review 583-759 (2018).
  14. In Carr v. Zwally,(10th Cir., Jan. 8, 2019), the 10th Circuit affirmed the dismissal of an inmate's complaint that a sheriff's deputy removed religious material, including two Bibles, from his cell.

    In Anderson v. Dzurenda, 2019 U.S. Dist. LEXIS 784 (D NV, Jan. 3, 2019), a Nevada federal district court allowed a Wiccan inmate to move ahead with his complaint that he was denied religious items, religious oils and religious teas.

    In Williams v. Kobayashi, 2019 U.S. Dist. LEXIS 1015 (D HI, Jan. 3, 2019), an Hawaii federal district court dismissed with leave to amend an inmate's complaint that his personal minister's application for special visitor status was denied.

    In Lopez v. Semple, 2019 U.S. Dist. LEXIS 1361 (D CT, Jan. 4, 2019), a Connecticut federal district court dismissed an inmate's claim that he was deprived of religious services while in segregation.

    In Wilson v. Arizona, 2019 U.S. Dist. LEXIS 1744 (D AZ, Jan. 3, 2019), an Arizona federal district court dismissed an inmate's complaint that he was denied religious meals and that his food was tampered with because of his religion.

    In Canada v. Stirling, 2019 U.S. Dist. LEXIS 3004 (D SC, Jan. 8, 2019), a South Carolina federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 218699, Dec. 17, 2018) and dismissed an inmate's claim that playing the Pledge of Allegiance over the prison loudspeaker two to three times per day violated the Establishment Clause.

    In Wilcox v. Brown, 2019 U.S. Dist. LEXIS 3684 (WD NC, Jan. 9, 2019),a North Carolina federal district court allowed an inmate to move ahead with his damage claim for the temporary cancellation of Rastafarian religious services.
  15. In Hale v. Federal Bureau of Prisons, (10th Cir., Jan. 7, 2019), the U.S. 10th Circuit Court of Appeals, in a prisoner free exercise case, held that the white supremacist Church of the Creator does not qualify as a "religion".  Thus the protections of the Religious Freedom Restoration Act do not apply to claims of an inmate whose participation in Creativity was limited because of its designation as a security threat group. The court applied a 5-factor test set out in earlier cases to determine whether Creativity was a religious belief system.  The court said in part:
    Instead of addressing existential, teleological, or cosmological matters, Creativity presents only a singular concern of racial dominance, framed in terms of social, political, and ideological struggles. Thus, Creativity does not address ultimate ideas.
  16. As previously reported, after Pakistan's Supreme Court last October reversed the blasphemy conviction of a Christian woman, Asia Bibi, protests and demonstrations broke out in several Pakistani cities.  Now, according to Geo News, Pakistan's Supreme Court today ordered federal and provincial governments to pay compensation to those who suffered losses and property damage during the three day countrywide protest that followed the October decision.
  17. Texas Tribune reports that the precinct chairs of the Tarrant County, Texas Republican Party last night rejected by a vote of 139-49 an attempt to remove trauma surgeon Shahid Shafi as vice-chairman of the county Republican Party. A small faction had attempted to remove Shafi because he is a Muslim.  They argued that he did not represent all Tarrant County Republicans because he is a Muslim, and that Islamic ideologies are opposed to the U.S. Constitution.  A former county precinct chair had sat outside the meeting wearing a burqa which, she said, represented "the Islamization of our county, our state and our country."  Shafi's defenders say the vote for religious liberty.
  18. The U.S. Supreme Court today granted review on a procedural issue in a Title VII religious discrimination case--  Fort Bend County, Texas v. Davis, (Docket No. 18-525, certiorari granted, 1/11/2019). (Order List). In the case, the U.S. 5th Circuit Court of Appeals held that the the requirement that a person exhaust administrative remedies before bringing a Title VII action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. (See prior posting.) Here is SCOTUSblog's case page giving links to the filings with the Supreme Court in the case.
  19. JNS reported this week that a New Jersey synagogue has won a $2.5 million settlement in a mediation proceeding against the town of Clifton, New Jersey. The synagogue claims that Clifton violated the Religious Land Use and Institutionalized Persons Act by creating over ten years of delays in approving construction of a building for Shomrei Torah congregation.  According to one of the synagogue's attorneys:
    Shomrei Torah had been commanded to appear before the Planning Board 25 times between March 2013 and October 2015, and before the zoning board seven times between November 2008 and January 2013. They had to appear in state court four times.
    The settlement terms, reached in December, were made public on Jan. 3. [Thanks to Steven H. Sholk for the lead.]
  20. AP reports on a lawsuit filed Tuesday against the Mormon Church in a Navajo Tribal Court. Plaintiff, identified only as LB, was part of the Mormon Church's Indian Student Placement Program which began in the 1940's and was designed to give educational opportunities to Native American children.  LB alleges that he was sexually molested three times in the 1980's by a Church bishop who lived across the street from the foster family with whom LB had been placed.  The suit seeks damages for failure to supervise participants in the program and for failing to report the abuse to authorities or to the victim's family.  The Church has contended that Tribal Courts lack jurisdiction over the lawsuit.