Australian Government Survey By Mail Favors Same-Sex Marriage

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.)

Bible In Schools Case Dismissed On Standing and Ripeness Grounds

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.

Ontario Court Holds Mahr Is Part of Family Property In Divorce

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.

New Suit Challenges Latest Limits on Refugees From 11 Countries

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 all Muslim 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.

Injunction Against Trump's 3rd Travel Ban Is Lifted In Part

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.

FBI Releases 2016 Hate Crime Data

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.

Supreme Court Grants Review In Pregnancy Center Required Disclosure Case

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.

Cert. Filed In Challenge To Abortion Clinic Anti-Noise Law

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.

Recent Articles and Books of Interest

From SSRN:

• Catherine E. Smith, et. al., Brief of Amici Curiae Scholars of The Constitutional Rights and Interests Of Children in Support of Respondents in Masterpiece Cakeshop LTD, et al v. Colorado Civil Rights Commission, (U Denver Legal Studies Research Paper, Working Paper No. 17-39 (Nov. 2017)).
• Ian S. Speir, 'A Beacon on Our Coast': Religious Freedom as the First Freedom at Home and Abroad, (Providence, Forthcoming).
• Sahar F. Aziz, A Muslim Registry: The Precursor to Internment?, (Brigham Young University Law Review, Forthcoming).
• Antony Barone Kolenc, Putting Faith in Europe: Should the U.S. Supreme Court Learn from the European Court of Human Rights?, (Georgia Journal of International and Comparative Law, Vol. 45, No. 1, 2016).
• Luke W. Goodrich & Rachel N. Busick, Sex, Drugs, and Eagle Feathers: An Empirical Study of Federal Religious Freedom Cases, (Seton Hall Law Review, Forthcoming).
• Holning Lau & Hillary Li, American Equal Protection and Global Convergence, (Fordham Law Review, Vol. 86, 2017).

From SSRN (Non-U.S. Law):

• Rung-Guang Lin, Towards Religious Institutionalism? The Future of the Regulation of Religious Institutions in Taiwan, (November 5, 2017).
• Masua Sagiv, The State and New Religious Movements, (Contemporary Alternative Spiritualities in Israel 115 (Shai Feraro and James R. Lewis eds., 2017)).
• Margaret D. Hagan, Human Rights Melodrama: A Literary Analysis of Reports of Police Violence Against Hungarian Roms, (Journal of Human Rights, Taylor and Francis, Pages 401-415 (2016).
• Ido Katri, The Banishment of Isaac: Racial Signifiers of Gender Performance, (University of Toronto Law Journal 68:1(2017)).

From SmartCILP and elsewhere:

• Mark Strasser, Neutrality, Accommodation, and Conscience Clause Legislation, 8 Alabama Civil Rights & Civil Liberties Law Review 197-238 (2017).
• Emma Green, The Quiet Religious-Freedom Fight That Is Remaking America, The Atlantic (Nov. 5, 2017).

Recent & Forthcoming Books:

• S.I. Strong, Transforming Religious Liberties: A New Theory of Religious Rights for National and International Legal Systems, (Cambridge Univ. Press, Oct. 2017).
• Michel Rosenfeld & Susanna Mancini, The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality, (Cambridge Univ. Press, March 2018).

Recent Prisoner Free Exercise Cases

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.

Challenge To FEMA Policy On Disaster Aid To Churches Moves Ahead

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.

Senate Republicans' Version of Tax Bill Retains Johnson Amendment Restrictions

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.

NY Voters Approve Kiryas Joel Becoming Separate Town

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.

Judge Says Suit Charging Campus Anti-Semitism Should be Refiled With Focus On Current Situation

Jewish News of Northern California reports that after a 57-minute pretrial hearing in Mandel v. Board of Trustees of the California State University, federal district court Judge William Orrick said he would dismiss the case with leave to amend. The suit alleges that  "a consistent pattern of anti-Jewish animus has emerged" at San Francisco State University since 1968. (See prior posting.)  The judge instructed that an amended complaint should focus on the current situation at SFSU, not on a 50-year history of anti-Semitism there.

9th Circuit Hears Oral Arguments In School Board Invocation Case

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in Freedom From Religion foundation v. Chino Unified School District. In the case, a California federal district court held that invocations at school board meetings are governed by case law relating to school prayer, not by the line of cases on legislative prayer.  Courthouse News Service reports on the oral arguments.

Missouri Offers State Employees Health Policies That Exclude Abortion, Contraception, Sterilization

As previously reported, last year a Missouri federal district court in Wieland v. HHS enjoined the federal government from enforcing the Affordable Care Act against a state legislator who, on religious grounds, objected to participating in a healthcare plan for himself, his wife and his daughters that provides coverage for contraceptives.  Now according to a press release from the Thomas More Society, the state of Missouri has begun to offer all state employees the option of selecting a health insurance plan that excludes coverage for abortion, contraceptives or sterilization.

Marked-Up House Version of Tax Bill Includes Expanded, But Time-Limited, Partial Repeal of Johnson Amendment

The House Ways and Means Committee today during its markup of HR 1, the Tax Cuts and Jobs Act, approved an amendment (full text) that, if finally adopted, will expand the partial repeal of the Johnson Amendment that was in the original version, but will revert to the current Johnson Amendment after 5 years. (See prior posting.)  The original version would have permitted houses of worship to include political endorsement in sermons by clergy.  The amended version that now goes to the full House expands that to allow political endorsements in statements by any Section 501(c)(3) organization when the statement is made in the ordinary course of its exempt activities without incurring additional expense.  Here is the amended text of the section, marked up by me to show additions and deletions from the original HR 1:

SEC. 5201. CHURCHES 501 (c)(3) ORGANIZATIONS PERMITTED TO MAKE STATEMENTS RELATING TO POLITICAL CAMPAIGN IN ORDINARY COURSE OF RELIGIOUS SERVICES AND ACTIVITIES.

(a) IN GENERAL.—Section 501 is amended by adding at the end the following new subsection:

"(s) SPECIAL RULE RELATING TO POLITICAL CAMPAIGN STATEMENTS OF CHURCHES, INTEGRATED AUXILIARIES, ETC. ORGANIZATIONS DESCRIBED IN SUBSECTION (c)(3) —

(1) IN GENERAL.—For purposes of subsection (c)(3) and sections 170(c)(2), 2055, 2106, 2522, and 4955, an organization described in section 508(c)(1)(A) shall not fail to be treated as organized and operated exclusively for a religious purpose purpose described in subsection (c)(3), nor shall it be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings, but only if the preparation and presentation of such content content of any statement which—

(A) is in is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and

(B) results in the organization incurring not more than de minimis incremental expenses.

 (2) TERMINATION.—Paragraph (1) shall not apply to taxable years beginning after December 31, 2023. 

(b) EFFECTIVE DATE.—The amendments made by this section shall apply to taxable years ending after the date of the enactment of this Act beginning after December 31, 2018."

[Thanks to Samuel Brunson via Religionlaw for the lead.] 

Republican Senators Call For Roy Moore To Withdraw From Senate Race After Sex Charges

According to the Washington Post, a number of Republican senators are calling for Roy Moore, Alabama candidate for the U.S. Senate, to withdraw if charges in an earlier Washington Post article today are true.  The article, based on detailed interviews with named accusers, says that Moore engaged in improper sexual contact with a 14-year old girl nearly 40 years ago when Moore was a 32 year-old assistant district attorney.  Three other women say Moore tried to date them when they were between 16 and 18 years old.  Moore, well known for his battles defending a Ten Commandments monument and opposing same-sex marriage, says that the charges "are completely false and are a desperate political attack by the National Democrat Party and the Washington Post."  The special election in Alabama in which Moore faces Democratic nominee Doug Jones is scheduled for Dec. 12.

UPDATE: Defending Moore, Alabama State Auditor Jim Zeigler told the Washington Examiner:  "[T]ake Joseph and Mary. Mary was a teenager and Joseph was an adult carpenter. They became parents of Jesus. There’s just nothing immoral or illegal here. Maybe just a little bit unusual."

Italian Artist Charged With Criminal Blasphemy

The art blog Hyperallergic this week reports that in Italy, the anonymous artist known as Hogre was arrested and charged with publicly insulting religion in violation of Sec. 403 (Criminal Blasphemy) of Italy's Criminal Code.  According to the blog's report:

Hogre was one of two artists who, on June 1 of this year, placed satirical posters in bus stop advertising spaces in the Italian capital. Hogre’s poster “Ecce homo erectus” depicts Jesus with a conspicuous erection, resting one hand on the head of a praying, kneeling child. This was a response to sexual abuse charges against Cardinal Pell, the third highest-ranking Vatican official.

If convicted, the artist could face a fine of €1000 to €5000.  Hyperallergic's blog post includes a photo of the offending poster.

House Holds Hearing On Campus Anti-Semitism

On Nov. 7, the House Judiciary Committee held a hearing titled Examining Anti-Semitism on College Campuses.  A video of the full hearing and written transcripts of the prepared testimony of nine witnesses are available on the committee's website.  As reported by AP, following the hearing Rep. Jamie Raskin (D-MD) proposed legislation to expand Title VI of the 1964 Civil Rights Act to bar discrimination on the basis of religion by programs receiving federal financial assistance.  Currently Title VI only bars discrimination on the basis of race, color or national origin.