Monday, February 12, 2018

European Court Upholds Conviction For Inciting Hatred

In Smajić v. Bosnia and Herzegovina, (ECHR, Jan. 16, 2018), a 3-judge panel of the European Court of Human Rights rejected a claim by a a citizen of Bosnia and Herzegovina that his free expression rights were infringed when he was convicted of inciting national, racial and religious hatred, discord or intolerance.  Applicant had posted online action that should be taken by Bosniac citizens of the Brčko District in the event of war and secession of  Republika Srpska (one of the two constituent entities of Bosnia and Herzegovina).  According to the court:
The applicant had used expressions which were highly insulting to members of an ethnic group, such as “this stinking Christmas”, “get rid of the danger behind our backs”, “the city centre should then be slowly cleansed” and “Serbs who came from different shitholes live there”.
Rejecting applicant's argument that his conviction violated Art. 10 of the European Convention on Human Rights, the court said in part:
31. The Court notes that the applicant’s conviction amounted to an “interference” with his right to freedom of expression. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10, and is “necessary in a democratic society” for achieving such an aim or aims.
32. The interference in the present case was prescribed by law; namely, it was based on Article 160 § 1 of the 2003 BD Criminal Code... Furthermore, the Court is satisfied that it pursued at least one of the legitimate aims referred to in Article 10 § 2 – namely the protection of the reputation and rights of others.
33. The Court reiterates that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, but these must be construed strictly, and the need for any restrictions must be established convincingly....

Recent Articles of Interest

From SSRN:

Sunday, February 11, 2018

Recent Prisoner Free Exercise Cases

In Fox v. Lee, 2018 U.S. Dist. LEXIS 19402 (ND NY, Feb. 5, 2018), a New York federal magistrate judge recommended denying an inmate's motion for summary judgment in his suit claiming to be an adherent of the Anuaki religion and needing to wear his hair in a Mohawk cut for religious reasons.

In Blackbear v. Butler County Jail, 2018 U.S. Dist. LEXIS 19935 (D KA, Feb. 7, 2018), a Kansas federal district court rejected an inmate's complaint that for 3 weeks he was denied a special diet he needed for religious reasons.

In Sajous v. Withers, 2018 U.S. Dist. LEXIS 20191 (SD FL, Feb. 6, 2018), a Florida federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 20820, Jan. 16, 2018) and dismissed an inmate's complaint that a Haitian Flag Day ceremonial meal was canceled and that he is unable to practice his Vodoo religion.

In Williams v. Paramo, 2018 U.S. Dist. LEXIS 21191 (SD CA, Feb. 7, 2018), a California federal district court allowed an inmate to move ahead with his complaint that he was not allowed to participate in Ramadan in 2017.

In Icangelo v. County of Suffolk, 2018 U.S. Dist. LEXIS 21903 (ED NY, Feb. 8, 2018), a New York federal magistrate judge allowed an inmate to move ahead with this complaint that for 6 weeks he was not allowed to attend Jummah religious services. UPDATE: The magistrate's opinion was adopted by the court at 2018 U.S. Dist. LEXIS 32754 (Feb. 28, 2018).

Saturday, February 10, 2018

Small Church Challenges Zoning Changes

Yesterday a small church in Laurel, Maryland filed a federal lawsuit challenging a zoning code change that prevents it from using property it purchased for a non-profit coffee shop and house of worship.  The complaint (full text) in Redemption Community Church v. City of Laurel, Maryland, (D MD, filed 2/9/2018), alleges that the zoning changes violate its right under RLUIPA and the 1st Amendment.  It alleges in part:
4. ... the City changed its zoning code to ban non-profit businesses and to require small churches (those located on less than one acre) to go through an onerous, costly, and uncertain special exception process before locating in the C-V Zone.
5. Churches that can afford more than an acre, and numerous secular assemblies or institutions can locate in the C-V Zone as of right....
7. The City has discriminated against Redemption Community Church, treated it less favorably than similarly-situated secular organizations, substantially burdened the Church’s free exercise of religion, and infringed on the Church’s right to free speech, peaceable assembly, and equal protection in violation of the Church’s federal and constitutional rights.
ADF issued a press release announcing the filing of the lawsuit.

Friday, February 09, 2018

Notre Dame Announces Another Change In Contraceptive Coverage

Notre Dame University on Wednesday announced another change in its policy regarding coverage for contraceptives by its employee health care plan.  Initially Notre Dame sued challenging the Obama administration's rule which required coverage, but allowed the coverage to be provided by the insurance company or third party administrator directly rather than by the University.  When the Trump administration broadened the exemption for religious non-profits so that Notre Dame could completely opt out of contraceptive coverage, the University chose to continue with the pre-existing coverage arrangement. This led to criticism from alumni and others. (See prior posting.)  Now in a letter to faculty and staff (full text), the University has announced a different approach-- one which makes a distinction between Catholic teaching regarding contraception and Church teaching regarding abortion (presumably including contraceptive drugs that prevent implantation of a fertilized ovum).  The letter from Notre Dame's president describes the policy as follows in part:
... [A]llowing the government-funded provision of drugs and services to continue through a third party administrator would provide access to contraceptives without University funding or immediate involvement. The government-funded program, however, includes the provision of abortion-inducing drugs, which are far more gravely objectionable in Catholic teaching. Stopping any access to contraceptives through our health care plan would allow the University to be free of involvement with drugs that are morally objectionable in Catholic teaching, but it would burden those who have made conscientious decisions about the use of such drugs and rely on the University for health care benefits.
I have reached the conclusion that it is best that the University stop the government-funded provision of the range of drugs and services through our third party administrator. Instead, the University will provide coverage in the University’s own insurance plans for simple contraceptives (i.e., drugs designed to prevent conception). The University will also provide in its plans funding for natural family planning options—options that do not use artificial contraceptives but employ natural methods for preventing conception. The University’s insurance plans (as opposed to the government-funded program) have never covered, and will not cover, abortion-inducing drugs.
In response to the new policy, Bishop Rhoades, Bishop of the Diocese of Fort Wayne-South Bend where Notre Dame is located, issued a statement yesterday (full text) welcoming parts of the new policy but strongly criticizing the University's decision to directly fund contraception coverage. [Thanks to Marty Lederman via Religionlaw for the lead.] 

Hopi's Religious Concerns Give Them Standing To Challenge Snowbowl Water Use

In Hopi Tribe v. Arizona Snowbowl Resort Limited Partnership, (AZ App., Feb. 8, 2018), an Arizona state appeals court has given the Hopi tribe another chance to continue their long-running opposition to the use of recycled waste water to make artificial snow at Arizona's Snowbowl ski resort. (See prior posting).  Reversing the trial court's standing ruling, the appellate court said in part:
At issue is whether the Tribe sufficiently alleged standing to maintain a common law public nuisance claim. For a private party to bring a claim of public nuisance, it must allege both an interference with a right common to the public and a special injury different in kind from that of the public. The parties do not dispute that the Tribe sufficiently alleged that the use of reclaimed wastewater interferes with the public’s right to use and enjoy the Peaks. Because we find the Tribe sufficiently alleged the use of reclaimed wastewater causes its members a special injury, different in kind than that suffered by the general public, by interfering with places of special cultural and religious significance to the Tribe, we reverse the trial court’s dismissal....

Former Magistrate Receives Damages In Settlement Over Refusal To Perform Same-Sex Marriages

According to a press release this week from Becket, the North Carolina court system last November agreed to a settlement with a former North Carolina magistrate who was forced to resign in 2014 because of her objections to performing same-sex marriage ceremonies.  Under the settlement of a complaint filed with the EEOC, magistrate Sandra Myrick will receive $210,000 in damages and $115,000 in attorneys fees. (Full text of settlement agreement).  The settlement came 8 months after the decision by an Administrative Law Judge in Myrick v. Warren, (EEOC, March 8, 2017) holding that the EEOC has jurisdiction over Myrick's religious discrimination complaint under the Government Employees Rights Act of 1991.  The ALJ also concluded that Myrick had demonstrated a prima facie case of religious discrimination and that she had not been offered an accommodation.

Trump Speaks To National Prayer Breakfast

Yesterday President Donald Trump spoke at the 66th Annual National Prayer Breakfast in Washington, D.C. (full text of remarks). The President said in part:
Each year, this event reminds us that faith is central to American life and to liberty.  Our founders invoked our Creator four times in the Declaration of Independence.  Our currency declares, “In God We Trust.”  (Applause.)  And we place our hands on our hearts as we recite the Pledge of Allegiance and proclaim we are “One Nation Under God.”  (Applause.)
Our rights are not given to us by man; our rights come from our Creator.  (Applause.)  No matter what, no Earthly force can take those rights away.  (Applause.)  That is why the words “Praise be to God” are etched atop the Washington Monument, and those same words are etched into the hearts of our people.

DOJ Imposes More Oversight On US Attorneys In Religious Liberty Cases

In a press release last week, the Department of Justice announced an update to the United States Attorneys' Manual (full text) which adds a section titled "Associate Attorney General’s Approval and Notice Requirements for Issues Implicating Religious Liberty." In order to insure compliance with a memo on protection of religious liberty issued last October (see prior posting), DOJ's new procedures instruct U.S. Attorneys to appoint a contact person to carry out the following instructions:
Immediately inform the Office of the Associate Attorney General upon receiving service of a suit filed against the United States raising any significant question concerning religious liberty;
Coordinate decisions about merits arguments and significant litigation strategy questions in religious liberty cases with the Office of the Associate Attorney General; and
Obtain the approval of the Office of the Associate Attorney General with respect to any affirmative civil suit that impinges on rights under the Free Exercise Clause, Establishment Clause, or Religious Freedom Restoration Act.
Yesterday the Center for Inquiry issued a press release criticizing the new oversight policy.

Thursday, February 08, 2018

New Hearing Ordered On Moving Bishop Fulton J. Sheen's Remains

In a 3-2 decision in Matter of Cunningham v Trustees of St. Patrick's Cathedral, (NY App., Feb. 6, 2018), New York state's Appellate Division sent back to the trial court for further proceedings the dispute over whether the body of Archbishop Fulton J. Sheen, who died in 1979, should be moved from New York City to Illinois.  Sheen was buried in St. Patrick's Cathedral. However Sheen's niece has now petitioned the court to have Sheen's remains moved to Peoria, Illinois where Sheen's family resides and where a shrine to him is being built in anticipation of Sheen's Beatification by The Vatican. (See prior posting.)  The trial court concluded (full text of opinion) that no factual disputes existed, and granted the request to allow removal of Sheen's remains. However, on appeal the majority held that the trial court must hold a hearing to determine Sheen's wishes as to his place of burial, in light of conflicting evidence on the issue. New York Times reports on the decision.

Senate's Bipartisan Budget Agreement Will Assure FEMA Assistance For Houses of Worship

The Bipartisan Budget Agreement (full text) which will be voted on today by the Senate (CNN report) includes provisions assuring that houses of worship will be able to receive disaster assistance from FEMA. The Stafford Act, Sec. 42 USC  Sec. 5172 allows federal assistance for repair or replacement of non-profit facilities damaged or destroyed by major disasters.  However, until a recent policy change by FEMA, houses of worship were excluded. (See prior posting.)  The bipartisan budget bill (Sec. 20604 at pg. 48) adds the following:
SEC. 20604. (a) DEFINITION OF PRIVATE NON PROFIT FACILITY.—
Section 102(11)(B) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5122(11)(B)) is amended to read as follows:
‘‘(A) IN GENERAL.—The term ‘private nonprofit facility’ means private nonprofit educational (without regard to the religious character of the facility), utility, irrigation, emergency, medical, rehabilitational, and temporary or permanent custodial care facilities (including those for the aged and disabled) and facilities on Indian reservations, as defined by the President.
‘‘(B) ADDITIONAL FACILITIES.—In addition to the facilities described in subparagraph (A), the term ‘private nonprofit facility’ includes any private nonprofit facility that provides essential social services to the general public (including museums, zoos, performing arts facilities, community arts centers, community centers, libraries, homeless shelters, senior citizen centers, rehabilitation facilities, shelter workshops, broadcasting facilities, houses of worship, and facilities that provide health and safety services of a governmental nature), as defined by the President. No house of worship may be excluded from this definition because leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice.’’.
(b) REPAIR, RESTORATION, AND REPLACEMENT OF DAMAGED FACILITIES.—Section 406(a)(3) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5172(a)(3)) is amended by adding at the end the following:
‘‘(C) RELIGIOUS FACILITIES.—A church, synagogue, mosque, temple, or other house of worship, educational facility, or any other private nonprofit facility, shall be eligible for contributions under paragraph (1)(B), without regard to the religious character of the facility or the primary religious use of the facility. No house of worship, educational facility, or any other private nonprofit facility may be excluded from receiving contributions under paragraph (1)(B) because leadership or membership in the organization operating the house of worship is limited to persons who share a religious faith or practice.’’. 

Pakistani Court Sentences 31 In Lynching of Student Falsely Accused of Blashpemy

Agence France-Presse today reports that a court in Pakistan has sentenced one person to death, five others to life in prison and 25 to three years in prison in the lynching of a student who was falsely accused of blasphemy.  26 others were acquitted. According to the report:
Mashal Khan, 23, was stripped, beaten and shot by a gang made up mostly of students last April before being thrown from the second floor of his dormitory at Abdul Wali Khan University in the northwestern city of Mardan....
Around two thousand people gathered at the main entrance of Mardan city, Khan's hometown, showering the acquitted students with flowers, chanting slogans against the provincial government and demanding the release of those convicted.

Louisiana School District Sued Over Prayers and Proselytizing

Four parents yesterday filed a federal lawsuit against the Bossier Parish, Louisiana school board alleging widespread Establishment Clause violations.  The complaint (full text) in Does 1-4 v. Bossier Parish School Board, (WD LA, Feb. 7, 2018) alleges in part:
3. School officials throughout the Bossier Parish School System regularly deliver or promote the delivery of Christian prayers at school-sponsored events.  Prayers begin and often end graduation ceremonies, sporting events, sports teams’ practices and banquets, pep rallies, and student-council meetings. Many of these school-sponsored events are also held in churches, including within the sanctuary or other rooms bearing religious iconography, thus creating an atmosphere closer to Sunday school than to public school.
 4. What is more, some Bossier Parish teachers proselytize during class, pray aloud for students, require young students to memorize sectarian prayers, and tell students of all religious backgrounds that to be a good person one be Christian.  Bossier Parish teachers and administrators have also placed religious displays in their classrooms and offices, advertised events sponsored by local churches, and incorporated religious teachings, beliefs, or doctrine, like Creationism, into the curriculum. Further, some Bossier Parish teachers, staff, and administrators have endorsed and conferred special favors on sectarian religious clubs and have developed practices that expose the private beliefs of students who do not wish to participate in these organizations, subjecting these children to coercive pressure to join, and ostracization by their classmates if they do not. 
Americans United issued a press release announcing the filing of the lawsuit.

Wednesday, February 07, 2018

EEOC Wins Settlement of Religious Accommodation Lawsuit

In a January 30 press release, the EEOC announced that the logistics company  XPO Last Mile, Inc. has settled a religious discrimination suit filed by the agency.  The company will pay $94,541 in monetary relief to a job applicant whose job offer was rescinded when he informed the company that he needed to start work one day later than scheduled because of his observance of the Jewish holiday of Rosh Hashanah.  The company also entered a 3-year consent decree preventing unlawful denial of religious accommodation to employees.

Congress Holds Hearing On Preventing Mass Atrocities

Yesterday, Congress' Tom Lantos Human Rights Commission held a hearing on prevention of mass atrocities around the world. Transcripts of prepared statements by a number of witnesses and a video of the entire hearing are available on the Commission's website.  In his opening statement, Commission co-chairman James McGovern said in part:
We are persuaded that atrocities are not the product of “ancient” ethnic or religious hatreds but rather of conscious, strategic decisions by ruling elites and non-state actors to achieve specific ends. Those actors need a reason to commit atrocities, and the means and opportunity to do so. The issue becomes how to change their strategic calculus.
We think impunity is one of the elements in that strategic calculus. If the perpetrators enjoy impunity, this may be seen as a “green light” to expand a genocidal or mass atrocity campaign.

California Baker May Refuse To Create Cake For Same-Sex Wedding

A California state trial court has held that a bakery owner has the right to refuse to create a wedding cake for a same-sex couple when the owner has religious objections to same-sex marriage. The court pointed out:
The Unruh Act prohibits discrimination on the basis of religion, as well as sexual orientation.
The bakery had arranged to refer orders from same-sex couples to a competing bakery that has no objections. In Department of Fair Employment and Housing v. Miller, (CA Super., Feb. 5, 2018), the court said in part:
The right of freedom of thought guaranteed by the First Amendment includes the right to speak, and the right to refrain from speaking. Sometimes the most profound protest is silence....
No artist, having placed their work for public sale, may refuse to sell for an unlawful discriminatory purpose. No baker may place their wares in public display case, open their shop, and then refuse to sell because of race, religion, gender, or gender identification.
The difference here is that the cake in question is not yet baked. The State is not petitioning the court to order defendants to sell cake. The State asks this court to compel Miller to use her talents to design and create cake she has not yet conceived with the knowledge that her work will be displayed in celebration of marital union her religion forbids. For this court to force such compliance would do violence to the essentials of Free Speech guaranteed under the First Amendment.
The Bakersfield Californian reports on the decision.

Tuesday, February 06, 2018

Israeli Rabbinical Judges Immune In State Court At Suggestion of State Department

In Ben-Hiam v. Edri, (NJ App., Feb. 5, 2018), a New Jersey appellate court held that a State Department "suggestion of immunity" in a suit against foreign officials is binding on New Jersey courts when the State Department has found that the foreign officials were acting within the scope of their authority for a foreign sovereign.  At issue is a suit brought in New Jersey against six Israeli rabbinical judges and an official of the Rabbinical Religious Courts Administration of Israel.  The suit grew out of a divorce and child custody dispute filed in Israeli courts by a couple who lived in New Jersey, but were Israeli citizens who were married in Israel and had traveled to Israel when the divorce action was filed.  While the Israeli litigation was pending, the husband (plaintiff in this case) returned to the United States.  Competing custody rulings for the couple's daughter were issued in the U.S. and Israel. The Israeli rabbinical court awarded custody of the daughter to the mother, but was unable to grant a divorce because the husband refused to grant the wife a get (Jewish divorce document).

What happened next is explained by the New Jersey court:
Israeli law gives rabbinical courts the authority to issue certain sanctions to pressure a nonconsenting spouse to give consent to a get. Accordingly, to compel plaintiff to consent to the get, the rabbinical court issued a series of escalating sanctions against plaintiff. Ultimately, the rabbinical court issued an order finding that under Jewish law, plaintiff's refusal was criminal and that Jewish persons must avoid dealing with plaintiff. That rabbinical court order was sent to plaintiff's rabbi in New Jersey, and was published on several websites.
In April 2015, plaintiff filed a civil complaint ... in New Jersey. Specifically, plaintiff contended that defendants aided and abetted in the kidnapping of his daughter, defamed him, and intentionally inflicted emotional distress on him.

European Court Upholds Company's Religiously Objectionable Ads

In Case of Sekmadienis Ltd. v. Lithuania, (ECHR, Jan. 30, 2018), the European Court of Human Rights in a Chamber Judgment held that Lithuania's State Consumer Rights Protection Authority violated a clothing company's freedom of expression when it imposed a fine because of a series of the company's ads that were seen as offending Christians. The Economist, reporting on the decision, described the ads:
The case refers to a Kalinkin campaign in 2012 which featured a bare-chested young man and a woman, both with halos: the man was sporting jeans and tattoos, and the female figure wore a white dress with a string of beads. The captions consisted of lines such as: “Jesus, what trousers!”, “Dear Mary, what a dress!” and “Jesus, Mary, what are you wearing?”
The European Court concluded that Lithuanian courts "failed to strike a fair balance between, on the one hand, the protection of public morals and the rights of religious people, and, on the other hand, the applicant company’s right to freedom of expression."  The Court issued a press release summarizing the decision. Chamber judgments may be appealed to the Grand Chamber.

Denial of Spousal Health Benefits Because of Religious-Only Ceremony May Violate Equal Protection Clause

In Ali v. Cooper, (ND CA, Jan. 30, 2018), a California federal district court refused to dismiss an equal protection claim by an employee of the Alameda Housing Authority (AHA) after her husband's health insurance coverage was terminated.  The action was taken by the Executive Director (Cooper) and Director of Human Resources (Basta) because the couple were married in a Muslim solemnization ceremony without a civil marriage certificate. Plaintiff claims that the two defendants were motivated by religious animus in singling her out and invoking a rarely used obscure policy to deny coverage. The court said in part:
Plaintiff adequately states a claim for intentional discrimination on the basis of her religion under the Equal Protection Clause against Defendants Cooper and Basta. This claim, however, is inadequately pled against the AHA ... because Plaintiff does not allege that the official marriage-certificate policy itself was motivated by animus, but rather, that the Individual Defendants’ enforcement of the policy against her was motivated by animus....
There may be an argument that Defendant’s marriage-certificate policy might not be narrowly tailored to achieve a compelling state interest if it fails to recognize a marriage that lacks a civil certificate but is nevertheless legally valid. At this time, however, Plaintiff has not alleged that her marriage was legally-valid.... Additionally, Plaintiff has not alleged that the marriage-certificate policy burdens a sincerely held religious belief. Thus, at this time, this First Amendment theory is inadequately pled.

Challenges To Placement On Terrorist Watch List Are Dismissed

In Amiri v. Kelly, (ED MI, Jan. 30, 2018), a Michigan federal district court dismissed claims challenging denial of a visa to a British national and placement of him and his wife (a permanent U.S. resident who is an Iranian national and a British citizen) on a terrorist watch list.  Plaintiffs claim that the data bases used by the government in making these decisions contain unsubstantiated information based on plaintiffs' imputed Muslim religious beliefs.  In rejecting plaintiffs' 1st Amendment challenge, the court said in part:
Plaintiffs have failed to state a claim for a violation of the establishment clause of the first amendment, as they have identified no government action with a non-secular purpose that has a principal effect of advancing or inhibiting religion, or that results in excessive government entanglement with religion..... Plaintiffs also fail to state a claim under the free exercise clause. They do not allege that they have been compelled to engage in a practice that violates their religious convictions, refrain from doing an act required by their religious convictions, or affirm or deny a belief contrary to their religious convictions. Indeed, Plaintiffs do not claim to be Muslim, but rather accuse Defendants of presuming they are Muslim.... 
Plaintiffs also fail to state an equal protection claim as they fail to allege that they have been treated differently than similarly situated individuals of a different nationality....  Nor do they allege that they are treated differently based on their religion, as they do not claim to be Muslim.