Religion Clause

Objective coverage of church-state and religious liberty developments, with extensive links to primary sources.
  1. CNN reports that Rev. Jamie Johnson resigned yesterday as head of the Department of Homeland Security's Center for Faith-Based & Neighborhood Partnerships.  His resignation stems from inflammatory statements about Blacks and Muslims which Johnson made in radio appearances in years prior to his appointment to his position at DHS.  For example, in one appearance he said in part:
    I agree with Dinesh D'Souza, your friend and mine, who says really all that Islam has ever given us is oil and dead bodies over the last millennia and a half.
  2. In Padron v. Watchtower Bible and Tract Society of New York, Inc., (CA App., Nov. 9, 2017), a California appellate court upheld a $4000 per day penalty against a Jehovah's Witness parent body for its refusal  to comply with a litigation discovery request.  At issue is a litigant's attempt to obtain copies of responses to a letter sent to elders around the country seeking names of congregation leaders who are known to have been guilty of child molestation in the past.  The total amount now due is some $2 million.  Reveal reports on the decision.
  3. Washington Post reports that the new $500 million privately-funded Museum of the Bible opens in Washington, D.C. today.  The museum has been created by the Green family, owners of the Hobby Lobby retail chain.  Located on a site near the Mall in southwest Washington, the Museum focuses the importance of the Bible, Biblical history and the place of the Bible in U.S. history.  The Post says that the Museum "will set a new standard" for fusion of entertainment and education. It summarizes:
    The Bible Museum has come to town, in all its technical splendor, bearing with it something that most historians and museum professionals may have thought was long discredited: the "master narrative" idea of history, that there is one sweeping human story that needs to be told, a story that is still unfolding and carrying us along with it. It tells this seductive story well, in many places with factual accuracy, and always with an eye to clarity and entertainment. It is an exciting idea, and an enormously powerful tool for making sense of the world.
    Unless, of course, you don’t believe it.
  4. Former members of the North Carolina-based World of Faith Fellowship (WOFF) will ask the North Carolina attorney general to seek review a settlement agreement reached 12 years ago in a suit against the Rutherford County Department of Social Services by 12 members of WOFF. The plaintiffs claimed they were being targeted by Social Services because of their religion. AP now reports:
    An ongoing Associated Press investigation has exposed years of abuse in the evangelical sect, with dozens of former members saying congregants are regularly beaten, punched and choked in an effort to "purify" sinners.
    ... [T]he state had opposed the agreement between Word of Faith and the county social services agency because it contains stipulations that limit such investigative tactics as what can trigger an abuse inquiry and how social workers can question minors....
    Several former members have told the AP that [child protection director] Carroll’s department has either cited the settlement in refusing to act on child abuse allegations or given Word of Faith members advance notice of investigations.
  5. A suit was filed last week in a Tennessee federal district court challenging the constitutionality of  Tennessee's "Therapist Bill" (TN Code 63-22-302) that provides:
    No counselor or therapist providing counseling or therapy services shall be required to counsel or serve a client as to goals, outcomes, or behaviors that conflict with the sincerely held principles of the counselor or therapist; provided, that the counselor or therapist coordinates a referral of the client to another counselor or therapist who will provide the counseling or therapy.
    The complaint (full text) in Copas v. Haslam, (MD TN, filed 11/13/2017) contends that, despite the broad wording of the section:
    The Tennessee Legislature intended for the Bill solely to allow religious counselors to discriminate against the LGBT community.
    It asserts that the law violates the Equal Protection Clause and the Establishment Clause.  JURIST reports on the lawsuit.
  6. The U.S. Helsinki Commission (the Organization for Security and Cooperation in Europe) yesterday held a briefing at the Russell Senate Office Building on Religious Freedom Violations in the OSCE.  A video of the full briefing is available on the Commission's website.
  7. The U.S. Commission on International Religious Freedom issued a press releaseon Tuesday criticizing the State Department for failing to meet the statutory deadline for designating "countries of particular concern".  The International Religious Freedom Act (22 USC 6442 as amended in 2016) requires the President to designate countries of particular concern-- those that are the most egregious violators of religious freedom-- within 90 days of the issuance of the State Department's Annual Report on International Religious Freedom.  The State Department issued this year's Annual Report on Aug. 15. (See prior posting.)
  8. The Australian Bureau of Statistics yesterday released the results of its national postal survey on whether the law should be changed to allow same-sex marriage.  (Press release; full survey results).  61.6% of respondents voted "yes"; 38.4% voted "no".  The press release expanded on the data:
    All states and territories recorded a majority Yes response. Of the 150 Federal Electoral Divisions, 133 recorded a majority Yes response, and 17 Federal Electoral Divisions recorded a majority No response.
    12,727,920 million people participated in the voluntary survey – representing 79.5 per cent of the more than 16 million eligible Australians.
    CNN reports that celebrations broke out across Australia after the results were announced.  (See prior related posting.)
  9. In Freedom From Religion Foundation v. Mercer County board of Education, (SD WV, Nov. 14, 2017), a West Virginia federal district court dismissed on standing and ripeness grounds a lawsuit challenging a Bible in Schools class offered for over 70 years in Mercer County elementary and middle schools.  Shortly after the lawsuit challenging the program was filed, the county Board of Education voted to suspend teaching of the course for a least a year in order to undertake a review and modification of the curriculum.  While one plaintiff who transferred to another school was found to lack standing, other plaintiffs had standing.  The court nevertheless dismissed because:
    the Bible in the Schools program of which plaintiffs’ complain is not currently offered nor will it be offered in the future. Furthermore, should a Bible in the Schools curriculum reemerge, the court has no information before it to determine the content of such a class.... Therefore, until the Bible in the Schools curriculum that Jamie Doe will actually encounter "is presented in clean-cut and concrete form,"... this action is not ripe for judicial review.
    FFRF issued a press release announcing the decision. First Liberty also issued a press release on the decision.
  10. In Bakhshi v. Hosseinzadeh,(Ont. Ct. App., Nov. 2, 2017), the Ontario Court of appeal held that the Mahr in an Islamic marriage contract is to be counted as part of net family property.  The Family Law Act in the Canadian province of Ontario calls for equal division of family-owned property in a divorce.  Here the marriage contract called for the husband to pay the wife 230 gold coins (found by the court to be worth $79,580).  The Court of Appeals held that the wife is entitled to receive the Mahr payment from her husband, but that (absent a provision to the contrary in the marriage contract) this amount is then to be included as family-owned property in the equalization calculation. Law Times reports on the decision.
  11. A lawsuit was filed yesterday in a Washington federal district court challenging the Oct. 24 Executive Order that resumes the admission of refugees to the United States, but with increased vetting of those from 11 countries. (See prior posting.)  The 44-page complaint (full text) in Jewish family Services of Seattle v. Trump, (WD WA, filed 11/13/2017) contends:
    Refugee Ban 3.0 implements defendant Donald Trump’s and his Administration’s often repeated goal of banning Muslim refugees from the country. Of allMuslim refugees resettled in the United States in the last two fiscal years, 80% were from the nine Muslim majority countries whose nationals are subject to this most recent suspension.
    HIAS issued a press release announcing the filing of the lawsuit.
  12. In State of Hawaii v. Trump, (9th Cir., Nov. 13, 2017), the U.S. 9th Circuit Court of Appeals stayed in part the preliminary injunction issued by a Hawaii federal district court against enforcement of President Trump's third travel ban. (See prior posting.)  The 9th Circuit held:
    The preliminary injunction is stayed except as to “foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States....
    The injunction remains in force as to foreign nationals who have a “close familial relationship” with a person in the United States.... Such persons include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins.... “As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading [Proclamation 9645].”
    Reuters reports on the decision.
  13. Yesterday, the FBI released its Hate Crime Statistics 2016.  During the year, 6,121 hate crime incidents (including 6,063 single-bias incidents) were reported to law enforcement authorities.  This compares to 5,850 total incidents in 2015 (see prior posting). The 2016 data shows that 21% of the single-bias incidents (1,273 incidents) were motivated by religious bias. 684 of those incidents were anti-Jewish (up from 664 in 2015).  307 incidents were anti-Muslim (up from 257 in 2015). 62 were anti-Catholic (same as 2015).  ADL has created an interactive map illustrating the data.
  14. The U.S. Supreme Court today granted certiorari in National Institute of Family and Life Advocates v. Becerra, (Docket No. 16-1140, cert granted 11/13/2017) (Order List).  In the case, the U.S. 9th Circuit Court of Appeals upheld  California's FACT Act which requires licensed pregnancy counseling clinics to disseminate a notice on the existence of publicly-funded family planning services, including contraception and abortion.  Unlicensed clinics must disseminate a notice that they and their personnel are unlicensed. (See prior posting.) The Supreme Court limited its grant of review to the Free Speech issues, excluding review of Free Exercise challenges.  SCOTUSblog's case page has links to the cert. petition and amicus briefs filed in the case.  The 9th Circuit in the case held that the required disclosures are regulation of "professional speech" subject only to intermediate scrutiny.  Washington Post reports on the Court's grant of review.
  15. A petition for certiorari (full text) was filed with the U.S. Supreme Court last week in March v. Mills, (cert. filed 11/6/2017).  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.  In March v. Mills, (1st Cir., Aug. 8, 2017), 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." The 1st Circuit held that the Noise Provision is a content-neutral time, place and manner restriction. Thomas More Law Center issued a press release announcing the filing of the petition for review.
  16. From SSRN:
    From SSRN (Non-U.S. Law):
    From SmartCILP and elsewhere:
    Recent & Forthcoming Books:
  17. In Garner v. Muenchow, (7th Cir., Nov. 8, 2017), the 7th Circuit reversed a Wisconsin federal district court grant of summary judgment for defendants in a suit in which a Muslim inmate alleged free exercise and equal protection violations growing out of efforts to prevent him from obtaining a copy of the Qur'an while in segregation.

    In Cavin v. Heyns, 2017 U.S. App. LEXIS 22582 (6th Cir., Sept. 12, 2017), the 6th Circuit affirmed a finding of qualified immunity in a suit by an inmate challenging a blanket ban on attendance at religious services for prisoners on toplock status.

    In Broyles v. Presley, 2017 U.S. Dist. LEXIS 182968 (D KA, Nov. 3, 2017), a Kansas federal district court held that plaintiff had stated a free exercise claim regarding his inability to receive a kosher diet.  The court ordered relevant jail officials to investigate the facts, determine what action should be taken and file this as a report along with defendants' answer.

    In Sears v. Thomas, 2017 U.S. Dist. LEXIS 186498 (SD FL, Nov. 8, 2017), a Florida federal district court rejected part of a magistrate's recommendation (2017 U.S. Dist. LEXIS 137998, Aug. 25, 2017) and held that an inmate can proceed with his claim for nominal damages against a correctional officer who insisted that a chain and crucifix discovered in plaintiff's cell must be returned to the vendor who sent it.
  18. In Harvest Family Church v. Federal Emergency Management Agency, (SD TX, Nov. 9, 2017), a Texas federal district court refused to grant FEMA a 30-day stay in a suit by three churches challenging FEMA's policy denying disaster aid to houses of worship.  FEMA, which refused defend the merits of its policy before the court, sought the stay because it is reconsidering the policy.  The court said it will delay a ruling on plaintiffs' request for a temporary injunction until December 1.  It added:
    The Court has received instructive briefing from amici in support of Plaintiffs’ Motion, for which it expresses gratitude. Nevertheless... “Without opponents, the adversary system cannot function.”... The Court would therefore welcome amici with differing views.
    If, by December 1, FEMA’s position remains unchanged, the Court will assume that FEMA concedes, at the very least, Plaintiffs’ likelihood of success on the merits of this case and that the injury being suffered by Plaintiffs is irreparable. The Court will then issue its ruling on Plaintiffs’ request for preliminary relief.
  19. As previously reported, the tax cut legislation introduced by Republicans in the House of Representatives eliminates some of the restrictions on political speech by non-profits currently imposed by the Johnson Amendment.  Senate Republicans have drafted their own version of a tax bill.  As reported by The Hill, Republicans on Thursday released a 253- page description of the bill (full text), though not the full legislative language.  It does not appear that the Senate is proposing any change to the Johnson Amendment's current restrictions on political intervention by non-profits. The Senate bill is scheduled for markup by the Finance Committee on Nov. 13.
  20. JTA reports on Tuesday's election results in the town of Monroe, New York where voters by over an 80% majority approved a proposal that will allow the Village of Kiryas Joel to secede and become its own separate Yiddish speaking town. The vote resolves tensions growing out of Kiryas Joel's annexation of land from Monroe. (See prior posting.)  Kiryas Joel was founded by Satmar Rebbe Joel Teitelbaum. The new town will be named Town of Palm Tree, an English translation of "Teitelbaum".  It will be New York's first new town in 35 years.