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.

Monday, September 11, 2017

India's Chief Justice Tells Authorities To Rein In Cow Protection Vigilantes

According to Reuters, India's Supreme Court last week ordered both the federal and state governments to appoint police officers to stop cow protection groups from taking the law into their own hands. Chief Justice Dipak Misra told governments to take this step after a hearing on three public interest lawsuits. There has been a wave of attacks by Hindu activists on Muslims accused of killing cows or eating beef. Police have processed over three dozen cases in the past two years. Several Indian states impose criminal punishment for slaughtering cows, which are sacred to Hindus.

South African Court Reconciles Marriage Law With Gender Identity Change Statute

Under South African law, marriages may be performed only for heterosexual couples; however civil unions, which create the same legal rights as a marriage, may be performed for either heterosexual or same-sex couples.  South Africa also has a statute which allows transgender individuals to register their gender transition with the government if they have undergone medical or surgical treatment to alter their sexual characteristics. Registration leads to a change in the gender listed on birth certificates and in the population register. In KOS v. Minister of Home Affairs, (S.A. High Ct., Sept. 6, 2017), a South African trial court was faced with the question of how to treat couples who had entered a heterosexual marriage (not a civil union), where subsequently the husband underwent gender transitioning and registered the change in gender identity with the government.

The government argued that in such cases, a gender change should not be able to be registered since it would result in a same-sex marriage, which the law does not recognize. In one of the cases, the government had instead cancelled the couple's marriage record and insisted that they enter a civil union.  The court however, disagreed concluding that the couples must be allowed to register the gender reassignment and remain married.  Refusing to do this, the court said, violates the rights under the South African Constitution to administrative justice and to equality and human dignity. GroundUp reports on the decision.

Recent Articles of Interest

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

U.S. Plans To Return Retrieved Jewish Archive To Iraq

According to a JTA report last week, an Iraqi Jewish Archive found by U.S. troops in the basement of the Iraqi secret services headquarters in Baghdad 14 years ago, will be returned to Iraq next year. According to JTA:
The archive was brought to America in 2003 after being salvaged by U.S. troops. It contains tens of thousands of items including books, religious texts, photographs and personal documents. Under an agreement with the government of Iraq, the archive was to be sent back there, but in 2014 the Iraqi ambassador to the U.S. said its stay had been extended. He did not say when the archive was to return....
In the U.S., the artifacts were restored, digitalized and exhibited under the auspices of the National Archives in Washington, D.C.
Jewish legislators and some Jewish groups are pressing the State Department to negotiate a new agreement to keep the collection in the United States or at some other location where it is available to Iraqi Jews-- all but a handful of whom have now left Iraq. [Thanks to Steven H. Sholk for the lead.]

Sunday, September 10, 2017

Recent Prisoner Free Exercise Cases

In Nunez v. Wertz, 2017 U.S. Dist. LEXIS 142825 (MD PA, Sept. 1, 2017), a Pennsylvania federal district court permitted a Muslim inmate to move ahead with his complaint that his rights under RLUIPA were violated when he was not permitted to wear his pants with legs rolled up to expose his ankles, except during religious services.

In Riley v. Franke, 2017 U.S. Dist. LEXIS 142971 (ED WI, Sept. 5, 2017), a Wisconsin federal district court dismissed a Muslim inmate's claim that a correctional officer engaged in religious discrimination by dropping his Ramadan meals on the floor.

In Troutman v. Mutayoba, 2017 U.S. Dist. LEXIS 144100 (SD IL, Sept. 6, 2017), an Illinois federal district court allowed an inmate to move ahead with his complaint that authorities refused to provide him with a diet consistent with his Native American religious beliefs.

In Thomas v. Pingotti, 2017 U.S. Dist. LEXIS 144173 (ND NY, Sept. 6, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his claim that during his keeplock confinement he was not allowed to attend Jum'mah services,  or the prayer and festival to break Ramadan.

In Gambino v. Payne, 2017 U.S. Dist. LEXIS 144337 (WD NY, Sept. 1, 2017), a New York federal magistrate judge in a suit brought by an inmate who was in the process of converting to Judaism recommended dismissing his complaint that showers with inadequate privacy violated his free exercise rights, but allowed him to move ahead with his claim against certain defendants that he was purposely served contaminated kosher meals which defendants refused to replace.

In Meza v. California Department of Corrections & Rehabilitation, 2017 U.S. Dist. LEXIS 144415 (ED CA, Sept. 6, 2017), dismissed with leave to amend a Catholic inmate's complaint that he was not allowed to attend a funeral outside of prison because of his alleged gang affiliation.

In Brim v. Donovan, 2017 U.S. Dist. LEXIS 144497 (W WI, Sept. 7, 2017), a Wisconsin federal district court allowed a Muslim inmate to proceed with a complaint that his name was removed from the congregate services pass list for 90 days and his name was not put on the 2015 Ramadan list.

In Allah v. Annucci, 2017 U.S. Dist. LEXIS 145104 (SD NY, Sept. 7, 2017), a New York federal district court allowed an inmate to move ahead with his claims that he was not allowed to attend two Shi'ite holy day events.

Saturday, September 09, 2017

DOJ Supports Christian Baker In Amicus Brief Filed With Supreme Court

In an amicus brief filed in the U.S. Supreme Court on Sept. 7 in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the U.S. Department of Justice sided with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  The brief (full text) argues:
Heightened scrutiny is appropriate at least where a law both compels the creation, for a particular person or entity, of speech or of a product or performance that is inherently communicative, and compels the creator’s participation in a ceremony or other expressive event....
Public accommodations laws compel expression— whether speech or expressive conduct— when they mandate the creation of commissioned goods or the provision of commissioned services that are inherently communicative. That situation might arise if a public accommodations law were applied to painters, photographers, poets, actors, musicians, or other professional artists. Assuming that those artists offer their creative services to the public, a State might attempt to bar a painter who agrees to paint a custom portrait of an opposite-sex couple at their wedding from declining to paint a same-sex couple, or vice versa. Or it might attempt to bar a freelance graphic designer who agrees to design fliers for the upcoming meetings of a Jewish affinity group from declining to do so for a neo-Nazi group or the Westboro Baptist Church. So long as the artist offers to produce expression for a fee, a public accommodations law might purport to restrict her ability to determine which art she will create and for whom....
A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.
Some 15 other amicus briefs in support of petitioner have also been filed. Links to them are available on SCOTUSblog's case page.  The due date for amicus briefs in support of respondent has not yet arrived. Christian News reports on the filing of the amicus brief.

No RLUIPA Violations In Denial of Variance For Personal Chapel

In Milosavlejevic v. City of Brier, (WD Wash., Sept. 7, 2017), a Washington federal district court held that the city of Brier, Washington did not violate RLUIPA when it denied petitioner a height variance so he could build a personal Serbian Orthodox chapel with a 40-foot dome on his property.  The court held that the city had not substantially burdened petitioner's free exercise, saying that he has "ready alternative places of worship at his disposal." It also rejected his RLUIPA equal terms and his Sec. 1983 discrimination claims.

Friday, September 08, 2017

NY Appeals Court Rules On Custody After Divorce of Hasdic Jewish Couple

In Weisberger v. Weisberger, (NY App., Aug. 16, 2017), a New York appellate court modified a trial court's custody order in a divorce proceeding.  At issue was the party's original agreement regarding the Jewish religious upbringing of their children. That agreement provided that the mother would raise the children in the "Hasidic practices of ultra Orthodoxy." The parties had divorced after the mother revealed that she was attracted to women rather than men.  When the mother changed the family's religious practices (and also began living with a transgender man), the trial court awarded the father full custody of the children.  The appeals court modified that order, returning custody to the mother with increased visitation rights for the father, and provided the father would have custody of the children during Jewish holidays.  It also ruled:
While we respect the parties' right to agree to raise their children in a chosen religion ... the weight of the evidence does not support the conclusion that it is in the children's best interests to have their mother categorically conceal the true nature of her feelings and beliefs from them at all times and in all respects, or to otherwise force her to adhere to practices and beliefs that she no longer shares.... 
This is not to say that it would be in the children's best interests to become completely unmoored from the faith into which they were born and raised.... [I]t is in the children's best interests to continue to permit the father to exercise final decision-making authority over the children's education and to continue to permit him to require the children to practice full religious observance in accordance with the Hasidic practices of ultra Orthodoxy while they are in his custody, or in the custody of a school that requires adherence to such practices.... [W]e deem it appropriate to direct the mother to make all reasonable efforts to ensure that the children's appearance and conduct comply with the Hasidic religious requirements of the father and of the children's schools while the children are in the physical custody of their father or their respective schools. Further, in light of the mother's proposal ... to keep a kosher home and to provide the children exclusively with kosher food, we find that it would be in their best interests for her to do so.... Except for these specified matters, we otherwise modify the religious upbringing clause to allow each parent to exercise his or her discretion while the children are in his or her care or custody.
JTA reported on the decision in an article published this week. [Thanks to Rabbi Michael Simon for the lead.]

9th Circuit Affirms Enforceable Scope of Travel Ban

In State of Hawaii v. Trump, (9th Cir., Sept. 7, 2017), the U.S. 9th Circuit Court of Appeals affirmed a federal district court's decision on the scope of President Trump's second travel ban executive order. The court affirmed the lower court's injunction barring enforcement of the Executive Order against
(1) grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States; and (2) refugees who have formal assurances from resettlement agencies or are in the U.S. Refugee Admissions Program (“USRAP”) through the Lautenberg Amendment.
Honolulu Star Advertiser has more on the decision.

Nominees For Federal Bench In Texas Have Religious Liberty Defense Background

Dallas News reports that among the 16 judgeship nominations announced by the White House yesterday are two nominations to Texas federal district courts of individuals with extensive backgrounds in issues of religious liberty.  Jeff Mateer, currently First assistant Attorney General of Texas, was previously general counsel and executive vice president of the First Liberty Institute. Matthew J. Kacsmaryk is currently Deputy General Counsel to First Liberty Institute.  First Liberty describes itself as "the largest legal organization in the nation dedicated exclusively to protecting religious liberty for all Americans."

Australia's Top Court Upholds Planned Mail Survey of Voters On Same-Sex Marriage

In Wilkie v. Commonwealth of Australia, (High Ct. Australia, Sept. 7, 2017), Australia's highest court unanimously upheld the government's plan to conduct a voluntary survey by mail of the country's voters on whether same-sex marriage should be legalized.  At issue in the case was whether the government acted properly when it used a law permitting expenditures which are urgent and unforeseen to fund the survey.  As reported by news.com.au:
Ballots with the question, “Should the law be changed to allow same-sex couples to marry?” will be sent to households across the nation on September 12....
If a majority of people vote in favour, a vote will then be held in parliament which [Prime Minister Malcolm] Turnbull says he expects will make same-sex marriage legal. If Australians vote no, Mr Turnbull has said the parliamentary vote will not proceed.
The postal survey was conceived after Australia's Senate voted against government sponsored legislation for a binding plebiscite. Interestingly, advocates of marriage equality were among those challenging the plebiscite, arguing that Parliament should legalize same-sex marriage without this preliminary vote. (Marriage Equality Information Sheet).  Law & Religion Australia last month had a lengthy post on the religious liberty implications of the substantive legislation that is being considered.

Thursday, September 07, 2017

7th Circuit Nominee Questioned On Religious Beliefs and Judicial Duties

The Senate Judiciary Committee yesterday held hearings on the nominations of four federal judges and the nominee to head the Justice Department's Civil Rights Division. (Video of full hearings).  One of the nominees, Notre Dame Law Professor Amy Coney Barrett, tapped for a seat on the U.S. 7th Circuit Court of Appeals, faced extensive questioning stemming from a background report from the Alliance for Justice. That report focuses in part on a 1998 law review article titled Catholic Judges in Capital Cases that was co-authored by Barrett.  This led to several exchanges with senators on the role a judge's religious beliefs play in judicial decision making. Daily Caller reports on the hearing.

FLDS Leader Ordered To Pay $16M In Damages To Child Victim

Utah state trial court judge Keith Kelly on Tuesday ordered Warren Jeffs (who is now in prison) and the polygamous FLDS church that he heads to pay $4 million in compensatory damages and $12 million in punitive damages to Elissa Wall who, at age 14, was pressured to marry her 19 yer old cousin. As reported by the Salt Lake Tribune:
In his ruling, Kelly noted that Jeffs controlled the church and key aspects of Wall’s life. He arranged the marriage to Alan Steed over Wall’s objections and performed the ceremony. Jeffs also pressured Wall to have children with Steed. Miscarriages and a stillbirth followed.

6th Circuit En Banc Upholds Invocations Offered By County Commissioners

In Bormuth v. County of  Jackson, (6th Cir., Sept. 6, 2017),  the U.S. 6th Circuit Court of Appeals sitting en banc in a 9-6 decision upheld the invocation practices of the Jackson County, Michigan Board of Commissioners.  At issue was whether the Establishment Clause is violated when invocations-- virtually all of them Christian-- are offered by elected Commissioners themselves rather than by a chaplain or invited clergy.  Judge Griffin's majority opinion reasoned:
There is no support for [plaintiff's] granular view of legislative prayer. In this regard, neither Marsh nor Town of Greece restricts who may give prayers in order to be consistent with historical practice....
That the prayers reflect the individual Commissioners’ religious beliefs does not mean the Jackson County Board of Commissioners is “endorsing” a particular religion, Christianity or otherwise. For one, while all the Commissioners presumably believe in Jesus Christ, the faiths of Christianity are diverse, not monolithic. The Reformation of the Sixteenth Century spawned an explosion of Christian faiths. Many of those practicing these new Christian faiths sought religious freedom in America and found refuge from the tyranny inflicted by sectarian governments....
We do not know the religious faiths of the 2013-2014 Jackson County Commissioners. The nine “Christian” Commissioners may have included Roman Catholics, Southern Baptists, Mormons, Quakers, Episcopalians, Lutherans, Methodists, and others.
Judges Rogers and Sutton wrote concurring opinions.

Judge Moore's dissent argued:
In the case before us today, the majority is dangerously close to permitting exactly what Justice Alito said Town of Greece obviously does not permit—government officials instructing citizens to participate in sectarian prayer before commencing government proceedings. There is no daylight between polling place workers asking individuals to pray before casting their ballots, as in Justice Alito’s example, and county commissioners asking individuals to pray before participating in local government meetings, as actually happens in Jackson County. This similarity underscores why a tradition that protects the Town of Greece’s right to open its meetings with solemn and respectful prayers, which was targeted at legislators and offered by clergy or volunteers from a variety of faith traditions, does not protect Jackson County’s policy to restrict its legislative prayer practice to government officials themselves asking the public to participate in exclusively Christian prayer.
Judge White wrote a separate dissenting opinion. Courthouse News Service reports on the decision.

New Report on America's Changing Religious Identity

The Public Religion Research Institute yesterday released its report on America's Changing Religious Identity.  According to the Executive Summary:
The American religious landscape is undergoing a dramatic transformation. White Christians, once the dominant religious group in the U.S., now account for fewer than half of all adults living in the country. Today, fewer than half of all states are majority white Christian. As recently as 2007, 39 states had majority white Christian populations. These are two of the major findings from this report, which is based on findings from PRRI’s 2016 American Values Atlas, the single largest survey of American religious and denominational identity ever conducted. This landmark report is based on a sample of more than 101,000 Americans from all 50 states and includes detailed information about their religious affiliation, denominational ties, political affiliation, and other important demographic attributes.
Among the other findings of the Report:
White Christians have become a minority in the Democratic Party. Fewer than one in three (29%) Democrats today are white Christian, compared to half (50%) one decade earlier. Only 14% of young Democrats (age 18 to 29) identify as white Christian. Forty percent identify as religiously unaffiliated.
White evangelical Protestants remain the dominant religious force in the GOP. More than one-third (35%) of all Republicans identify as white evangelical Protestant, a proportion that has remained roughly stable over the past decade. Roughly three-quarters (73%) of Republicans belong to a white Christian religious group.

Wednesday, September 06, 2017

RLUIPA Suits Over Mosque Construction Are Settled

The Justice Department announced yesterday that a settlement agreement (full text) has been reached in United States v. Bensalem Township, Pennsylvania, as well as in a private suit involving the same underlying facts. In the  suit, the Justice Department alleged that the township violated RLUIPA in denying a zoning variance to permit Bensalem Masjid to construct a mosque on property near a commercial area. (See prior posting.)  The agreements call for approval of use of the property and for the Township to amend its zoning ordinances so they are compliant with RLUIPA. Bucks County Courier Times reports on the settlement.

Jewish Woman Sues Restaurant Over Bacon In Veggie Omelet

Detroit Free Press reports that a lawsuit was filed last week in a Michigan state trial court against a Detroit area Denny's restaurant for including bacon in a vegetarian omelet.  Plaintiff Angela Montgomery is a practicing Jew who for religious reasons does not eat pork products.  Restaurant personnel had apologized to Montgomery, telling her that this was a mistake because the bacon container was next to the containers of vegetables.  A similar lawsuit was filed Aug. 22 by a Yemeni-American Muslim couple  against a Detroit area KFC that had mistakenly included bacon on their chicken sandwiches.

Churches Challenge FEMA's Bar On Disaster Aid To Houses of Worship

This week three Texas churches that suffered significant damage from Hurricane Harvey filed suit against FEMA, challenging its policy that precludes houses of worship from receiving federal disaster assistance aid. The complaint (full text) in Harvest Family Church v. Federal Emergency Management Agency, (SD TX, filed 9/4/2017), relies particularly on the U.S. Supreme Court's recent Trinity Lutheran Church decision in claiming that FEMA's policy unconstitutionally discriminates against churches solely because of their religious status.  Plaintiffs contend:
Were the Churches not religious, their prohibited “worship” services would instead be eligible as “social activities to pursue items of mutual interest”; the impermissible “religious instruction” during religious services would be permissible as “educational enrichment activity”; children’s church and women’s Bible study groups would qualify as a “service or activity intended to serve a specific group of individuals”; and meetings between the clergy and other church leaders would be a “community board meeting.”
Becket issued a press release announcing the filing of the lawsuit.

UPDATE: In a tweet on Friday, President Trump said: "Churches in Texas should be entitled to reimbursement from FEMA Relief Funds for helping victims of Hurricane Harvey (just like others)."