Story Recounts Personal Side of Court-Ordered Medical Treatment of Child

The Cleveland Plain Dealer today has a lengthy account of the personal emotions involved in a court clash between parents and doctors over the treatment of a 14-year old girl with a brain tumor.  The story details the difficult decisions involved where parents, who are Moorish-Americans, want, consistent with their religious beliefs, to use herbal treatment instead of chemotherapy on the inoperable tumor.

Recent Prisoner Free Exercise Cases

In Hammock v. Pierce, 2018 U.S. Dist. LEXIS 76797 (SD NY, May 7, 2018), a New York federal district court allowed a Nation of Islam inmate to move ahead with his complaint that his cassette tapes containing NOI teachings were confiscated when his cell was searched.

In Gwyn v. Booker, 2018 U.S. Dist. LEXIS 77119 (WD VA, May 7, 2018), a Virginia federal district court dismissed an inmate's complaint that authorities refused to approve meetings for inmates of the Apostolic faith, separate from multi-denominational Protestant services.

In Wells v. McKoy, 2018 U.S. Dist. LEXIS 77516 (ND NY, May 7, 2018), a New York federal magistrate judge recommended dismissing complaints by plaintiffs that the Nation of Islam community was not allowed to select the inmates who would prepare the meals served during Ramadan, and that they were served food during Ramadan that did not meet NOI dietary restrictions.

In Harris v. Food Supervisor Carlock, 2018 U.S. Dist. LEXIS 77983 (CD IL, May 9, 2018), an Illinois federal district court allowed an inmate to move ahead with his claim that he was denied his religious vegan diet for an eight day period.

In Hammer v. Smith, 2018 U.S. Dist. LEXIS 80169 (WD VA, May 10, 2018), a Virginia federal district court dismissed, without prejudice, a civil detainee's claim that state hospital policy violated his free exercise rights by denying him "the right to enter into holy matrimony".

Education Department Considering Expanding Faith-Based Insitutions' Eligibility For Grants

As part of its Spring 2018 regulatory agenda released on Wednesday, the U.S. Department of Education signaled that it is considering rule amendments to expand the eligibility of faith-based institutions for federal grants.  In a release titled Eligibility of Faith-Based Entities and Activities, DOE said:

Various provisions of the Department’s regulations regarding the eligibility of faith-based entities to obtain grants from the Department or to participate in State-administered programs and the activities that they may perform unnecessarily restrict participation by religious entities in the Department’s grant programs by including requirements specific to such entities. The Department plans to review and to amend or rescind such regulations in order to be consistent with current law and to reduce or eliminate unnecessary burdens and restrictions on religious entities and activities.

According to the New York Times, the proposals are an attempt to align DOE rules regarding religious colleges and universities with the Supreme Court's 2017 Trinity Lutheran decision. [Thanks to Scott Mange for the lead.]

Indonesia Sentences Christian Man To 4 Years For Facebook Post Urging Conversion

According to World Watch Monitor and the Jakarta Post, in Indonesia on Monday a Christian cleric was sentenced to 4 years in prison and a fine equivalent to $3,565(US) for religious discussion on a video he posted online.   Abraham Ben Moses, a convert from Islam, was convicted of violating the Electronic and Information Transactions Law No. 11/2008 by intentionally spreading information intended to incite hatred against an individual or group based on religion. According to the Post:

Abraham was known for recording his conversations with an online taxi driver identified only as Supri.

In a video he uploaded to his Facebook account, Abraham quoted a Quran verse about marriage and tried to convince the driver to convert to Christianity.

Muslim Woman Sues Over Forcible Removal of Hijab At California Jail

CAIR-LA announced yesterday that it has filed a federal lawsuit on behalf of a Muslim woman who had her hijab forcibly removed by Ventura County, California deputy sheriffs.  The incident occurred at the county jail after Jennifer Hyatt was arrested because of her involvement in a domestic dispute.  Even after she had been searched, deputies refused her request to wear her hijab when men were present, and instead violently pulled off the second part of her two-piece hijab.

Texas' Highest Criminal Court Upholds Law Punishing Sexual Assault By Polygamists More Harshly

In Estes v. State of Texas, (TX Ct. Crim. App., May 9, 2018), the Texas Court of Criminal Appeals, reversing the Court of Appeals, upheld the constitutionality of a Texas statute that provides higher penalties for polygamists who sexually assault their purported spouses than for other sexual assaults.  Defendant argued that the statute had the effect of treating married people more harshly than others.  The majority held that where, as here, the assault victim was a minor, it is enough that the state had a rational basis for the distinction it drew, saying in part:

[T]he Legislature could rationally conclude that to be a married man or woman is to project the kind of “stability” and “safe haven” that many children find comfort in.... And it could rationally see fit to declare that one who would enjoy this marital perception of trustworthiness will be punished all the more severely if he uses it to groom, and then sexually abuse, a child.

Judge Newell, joined by Judges Hervey and Richardson, filed a separate opinion concurring in part and dissenting in part, saying:

[W]hile I ultimately agree with the Court that the legislative classification is rationally related to a legitimate state interest, I disagree with the Court’s chosen path to that result....

The State’s interest in protecting children does not explain why a legislative distinction between married and unmarried defendants is rational. It only serves to make the State’s argument supporting that distinction look more substantial....

Ultimately, the resolution of this case turns upon the level of scrutiny we must apply in our evaluation of the statute at issue. Does strict scrutiny apply because the distinction between married and unmarried offenders significantly interferes with the fundamental right to marry? Rather than remand the case to the court of appeals to decide the issue, I would address the issue head-on. The answer is no.

Judge Alcala dissented without filing a separate opinion.

Gayle Manchin Appointed To USCIRF

Last week, the U.S.Commission on International Religious Freedom issued a press release announcing the recent appointment of Gayle Conelly Manchin as a member of the Commission.  She was appointed on April 19 by Senate Democratic Leader Charles E. Schumer.  Manchin, who is the wife of West Virginia Senator Joe Manchin, has previously served as a member of the West Virginia State Board of Education and director of AmeriCorps Promise Fellows in West Virginia.  She was West Virginia's First Lady from 2005- 2010.

Islamic School Consultant Files Religious Freedom Lawsuit Over Impediments To Its Purchase of Property

WFJM News reported yesterday on a federal court lawsuit filed last month by a consulting firm for Islamic schools over impediments placed in its way as it attempted to purchase a now-vacant 150 acre site in Shenango Township, Pennsylvania from the state.  The property, containing 13 building, was formerly used to provide rehabilitative services and housing for juvenile offenders.  Plaintiff intended to use the site in part for a youth intervention center and partly for an Islamic boarding school.  The complaint (full text) in HIRA Educational Services of North America v. Augustine, (WD PA, filed 4/13/2018), alleges that local residents were unhappy that the property was being sold to an Islamic institution.  At a community meeting, a representative of an advocacy organization opposing the sale falsely claimed that the property would be used as a center for thousands of refugees. State and local officials took a variety of elaborate steps to block the sale, making it impossible for the purchaser to obtain financing for the property. The lawsuit contends that actions by officials to prevent the purchase imposed a substantial burden on religous exercise in violation of RLUIPA, the Pennsylvania Religious Freedom Protection Act and federal civil rights laws.

Ecclesiastical Abstention Doctrine Requires Dismissal of Priest's Defamation Suit

In Diocese of Palm Beach, Inc. v. Gallagher, (FL App., May 9, 2018), a Florida state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a defamation suit brought by a Catholic priest against the diocese in which he served.  Father John Gallagher was not offered the position of pastor at Holy Name Church, and was reassigned.  He rejected the transfer and instead took a leave, contending that the reassignment was punishment for his attempt to expose inadequacies in the way in which the diocese handled sexual abuse claims.  In response to his going public with these charges, diocese officials made comments that led to Gallagher's lawsuit.  As related in the court's opinion:

Father Gallagher claimed the diocese defamed him in newspaper articles, letters to parishioners which were read at masses, press statements posted on the diocese webpage, electronic mail among diocese personnel, and postings on diocese personnel’s social media. These statements, Father Gallagher alleged, defamed him by calling him a liar, unfit to be a priest, and in need of professional help.

Rejecting the trial court's conclusion to the contrary, the Court of Appeals held:

[T]o, to resolve Father Gallagher’s actual damages claim, the courts would have to determine whether the diocese’s reasons for not making him a pastor, and reassigning him to another church, were valid religious reasons concerning Father Gallagher’s fitness for the job, or retaliation for Father Gallagher’s whistleblowing....  [W]e would be required to weigh the effect of Father Gallagher’s problems with his Hispanic congregants on the advisory committee’s decision to pass over Father Gallagher for the position of pastor, and whether this was a valid religious reason for the diocese’s decision.....

We are not permitted to look behind the diocese’s ministerial employment decision because doing so would necessarily entangle us in questions about the religious reasons why Father Gallagher was not promoted under canonical law.

Daily Business Review reports on the decision.

German Labor Court Upholds Ban On Primary School Teacher Wearing Hijab

In 2015, Germany's Constitutional Court invalidated a blanket ban on Muslim teachers wearing the hijab (head scarf) while teaching. However it held that hijabs could be banned in individual cases where a concrete danger is posed. (See prior posting.)  Yesterday a labor court judge in Berlin upheld the city's neutrality law that prohibits all religious clothing for public school teachers, police officers and judicial employees, saying that it does not violate a teacher's constitutional right to religious freedom.  The ruling came in the case of a primary school teacher who asserted the right to wear a hijab.  Justice Arne Boyer ruled that neutrality takes precedence over free religious expression.  A court spokesman clarified the ruling, saying that while primary school children should be free of the influence that can be exerted by religious symbols, the teacher could could continue to wear her hijab while teaching older students in a public secondary school.  Deutsche Welle and PressTV report on the decision.

University of Michigan Sued Over Anti-Bias Rules

A lawsuit was filed yesterday in Michigan federal district court against the University of Michigan challenging provisions in its disciplinary code prohibiting harassment, bullying and bias-related conduct, and enforcement of these provisions by the University's Bias Response Team. The lawsuit contends that the "amorphous prohibitions" in the conde "profoundly chill free speech and open discourse." The complaint (full text) in Speech First, Inc. v. Schlissel, (ED MI, filed 5/8/2018), alleges in part:

The University’s definitions of “bias” encompass countless instances of protected speech and expression on all manner of topics. Under the plain text of these definitions, a student may be deemed to have acted with “bias” if, for example, she gives a speech sharply criticizing the Catholic Church and its adherents for not allowing  women to become priests; this student has expressed a “negative opinion” or “attitude” about a certain group of people based on their “cultural experience” of religion....

The mere existence of the BRT mechanism chills protected expression even apart from any punishments that may result at the end of the process. The University has created and promoted a system in which students can file anonymous reports of “bias” under an amorphous definition based on anything that harms their “feelings,” which will then lead a team of University officials to spring into action to investigate. Students voicing controversial or unpopular opinions, or seeking to engage in humor, satire, or parody, may credibly fear that the BRT will be summoned in response to their speech and that they will be forced to defend themselves against accusations of “bias.”

The College Fix reports on the lawsuit.

EEOC Sues Company Over Refusal To Accommodate Muslim Women Employees' Dress Requirements

The EEOC announced this week that it has filed a Title VII lawsuit against Washington-state based Aviation Port Services, a  provider of support services to airlines.  The company fired six Muslim female passenger service agents at its Boston location for violating a requirement that they wear company-provided pants or knee-length skirts at work. It refused to accommodate the women's religious obligation to wear long skirts instead.

11th Circuit: Challenge To City's Approval of Chabad Building Is Moot

In Gagliardi v. TJCV Land Trust, (11th Cir., May 7, 2018), the U.S. 11th Circuit Court of Appeals dismissed as moot an Establishment Clause challenge to Boca Raton, Florida's zoning approval for a Chabad religious center.  Plaintiffs claimed that the city gave preferential treatment to Chabad when it amended its zoning ordinances to accommodate the Jewish organization's building plans. Because a state court had already invalidated the building project on other grounds, the federal appeals court dismissed the case, saying in part:

We have indisputable evidence that this project is over. And the complaint has offered not the slightest suggestion that a new Chabad project is in the works or being considered now by the City’s employees. As we see it, this is a textbook case for mootness. 

New Report Quantifies Anti-Semitism On Twitter

The ADL yesterday released a new report titled Quantifying Hate: A Year of Anti-Semitism on Twitter (full text).  It reports:

at least 4.2 million anti-Semitic tweets were shared or re-shared in English on Twitter over the 12-month period ending January 28, 2018. Those 4.2 million tweets were sent from an estimated three million Twitter handles.

[Thanks to Scott Mange for the lead.] 

Suit Seeks To Remove "So Help Me God" From Citizenship Oath

According to a press release yesterday from the Raelian Movement, a French national living in Massachusetts who is seeking to become a U.S. citizen has filed suit in federal district court seeking to have the phrase "So help me God" stricken from the citizenship oath.  Olga Paule Perrier-Bilbo is an atheist and says that the required oath violates her religious free exercise rights.  Perrier-Bilbo is represented by activist Michael Newdow who has filed suits in the past seeking to have mention of God removed from currency, the Pledge of Allegiance and the Presidential oath.

Kansas, Oklahoma Pass Bills Protecting Religious Beliefs of Adoption Agencies

As reported by AP, last week both the Kansas an the Oklahoma legislatures  approved bills allowing faith-based social service agencies to provide adoption services consistent with their religious beliefs. Wichita Eagle had this report on Kansas SB 284 (legislative history) (full text):

A bill that ensures faith-based adoption agencies can turn away gay and lesbian couples based on religious beliefs will be signed into law by Gov. Jeff Colyer....

The Senate approved the bill 24-15 at 1:51 a.m. Friday after the House passed it Thursday night, 63-58. The bill had been dormant for weeks before lawmakers revived and passed it in a matter of hours....

The bill doesn’t apply to organizations that contract directly with DCF [Kansas Department of Chidren and Families], allowing DCF to prohibit discrimination in placements. Agencies that refuse to place children with LGBT couples can continue to receive reimbursement from the state if they are making placements on behalf of a DCF contractor.

The Oklahoma bill, SB 1140 (legislative history) (full text) covers both adoption and foster care placement by agencies that act in accordance with their "written religious or moral convictions or policies." However agencies may not refuse any services for children in custody of the state Department of Human Services.  Gov.Mary Fallin has not said whether she will sign the bill. 

UPDATE: On May 11, Gov. Fallin signed SB 1140, but also ordered the  Department of Human Services to publish a list of Oklahoma adoption and foster agencies on its website who are willing to serve everyone who meets the Department's criteria for being a foster or adoptive parent. (Press release from Governor's office.)

Recent Articles and Books of Interest

From SSRN:

• Avishalom Westreich, Assisted Reproduction in Israel: Law, Religion, and Culture, (Brill Research Perspectives: Family law in a Global Society, 2018).
• Steven Douglas Smith, The Case of the Exemption Claimants: Religion, Conscience, and Identity, (San Diego Legal Studies Paper No. 18-345, 2018).
• Sidney Martin, Oklahoma's 'Bone-Dry' Law and the Fallacy of Legislative Accommodation Under Employment Division v. Smith, (January 12, 2017).
• Joel Harrison, Pope Francis, True Religion, and Religious Liberty, (Journal of Law and Religion, Vol. 33, No. 3, 2018).
• Joel Harrison, Sovereignty, (Nicholas Aroney and Ian Leigh (eds), Christianity and Constitutionalism (Cambridge University Press, 2018)).
• Nicholas Mignanelli, Is Satan a Transactions Attorney? An Account of Satanic Imagery in Law and Literature, (University of Miami Legal Studies Research Paper No. 18-16, 2018).
• Robert Kahn, Hate Speech, Democratic Legitimacy and the Age of Trump, (17 International and Comparative Law Review 239 (2017)).
• Kheinkor Lamarr, Jurisprudence of Minority Rights: The Changing Contours of Minority Rights, Proceedings of the 8th International RAIS Conference on Social Sciences (2018)).

From SSRN (Islamic law):

• Saadiya Suleman, Muslim Personal Law and Gender Equality Concerns in India, (Advances in Social Science, Education and Humanities Research, Volume 162, International Conference on Law and Justice (ICLJ 2017)).
• Reza Banakar & Keyvan Ziaee, The Life of the Law in the Islamic Republic of Iran, (Iranian Studies, Vol. 51, 2018, Forthcoming).

Recent Books:

• Kim, Davis, Under God's Authority, (Liberty Counsel, Feb. 2018).
• James Loeffler, Rooted Cosmopolitans: Jews and Human Rights in the Twentieth Century, (Yale Univ. Press, May 2018).
• Nadine Strossen, Hate: Why We Should Resist It with Free Speech, Not Censorship, (Oxford Univ. Press, May 2018).

Church Testimony To Liquor Board Did Not Violate Establishment Clause

In Clarke v. Goodson, 2018 U.S. Dist. LEXIS 74419 (MD AL, May 1, 2018), and Alabama federal magistrate judge recommended dismissing an Establishment Clause challenge to Pike County, Alabama's denial to plaintiffs of a license for the sale of beer and wine at their restaurant.  Plaintiffs contended that it was a violation of the Establishment Clause for the Alcoholic Beverage Control Board to allow officials of a nearby church to testify in opposition to granting of the license.

[T]he law is settled that the "protect[ion] of churches and schools from disruption associated with liquor serving establishments" is a valid secular purpose.... Moreover, ... the Defendants' conduct would arguably have violated the Establishment Clause, if the Defendants had refused to allow citizens to speak in opposition to the Plaintiff's application on the basis of those individuals' affiliation with the church.

Recent Prisoner Free Exercise Cases

In Warner v. Friedman, 2018 U.S. Dist. LEXIS 70564 (ND CA, April 26,2018), a California federal district court allowed a Jewish inmate to move ahead with claims of violation of a settlement agreement reached in his prior litigation regarding a kosher diet.

In Wilkins v. Macomber, 2018 U.S. Dist. LEXIS 70586 (ED CA, April 26, 2018), a California federal magistrate judge dismissed an inmate's complaint regarding access to kosher meals and Jewish religious services, but with an an opportunity to amend his complaint to clarify his allegations as to religious services.

In Long v. California, 2018 U.S. Dist. LEXIS 72460 (ED CA, April 30, 2018), a California federal magistrate judge rejected a civil detainee's claim that anyone who follows Jesus Christ should be allowed to rule over the world, and his request to be released so he can do so. UPDATE: a federal magistrate udge likewise recommended dismissal of an amended complaint at 2018 U.S. Dist. LEXIS 78495 (May 9, 2018).

In Nelson v. Hjorth, 2018 U.S. Dist. LEXIS 73825 (D NE, May 2, 2018), a Nebraska federal district court allowed a pre-trial detainee to move ahead with her complaint that she was denied access to newspaper and magazine subscriptions, but dismissed her complaint that religious and spiritual publications are banned and that inmates attending Protestant Bible study are not allowed to attend Catholic religious services.

In Rafiq v. United States, 2018 U.S. Dist. LEXIS 73771 (WD LA, April 30, 2018), a Louisiana federal magistrate judge gave a Muslim inmate 30 days to amend his complaint to cure pleading deficiencies.  The suit complains of access to clergy, religious classes, congregate worship and Ramadan observance, and of favoritism to Christianity in holiday decorations.

In Smith v. Davis, 2018 U.S. Dist. LEXIS 75567 (D WV, May 4, 2018), a West Virginia federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 75795, April 10, 2018), and dismissed a Muslim inmate's complaint that he was not served hot meals on three days during Ramadan.

In Mayo v. Cameron, 2018 U.S. Dist. LEXIS 75822 (WD PA, May 2, 2018), a Pennsylvania federal magistrate judge recommended dismissing a Baptist inmate's complaint that he was not permitted to purchase a Crucifix  because it was identified as a Catholic religious article.

Trump's Faith Initiative Executive Order Has Rescinded Protections For Clients Objecting To Religious Provider

As previously reported, on May 3 President Trump signed an Executive Order on the Establishment of a White House Faith and Opportunity Initiative.  As reported by JTA, buried in that order is repeal of a previous provision that required religious social service providers using federal grant funds to refer a client to an alternative provider if the client objected to the religious character of the original provider.  That referral requirement was added in 2010 by President Obama in Executive Order 13559 which amended Executive Order 13279 (2002).  The most recent change was effected by the following language in Sec. 2(b) of President Trump's recent Executive Order:

Executive Order 13279, as amended, is further amended by striking section 2(h) and redesignating sections 2(i) and 2(j) as sections 2(h) and 2(i), respectively.