Saturday, July 22, 2017

Plaintiffs Awarded Attorneys' Fees In Suit Against County Clerk Kim Davis

In Miller v. Davis, (ED KY, July 21, 2017) a Kentucky federal district court awarded $224,703 in attorney’s fees and costs to plaintiffs who previously obtained a preliminary injunction against Rowan County, Kentucky Clerk Kim Davis.  Davis, citing her religious beliefs, stopped issuing marriage licenses entirely in order to avoid issuing licenses to same-sex couples.  The court yesterday held that plaintiffs were entitled to attorneys' fees because they were the “prevailing party” --they obtained a preliminary injunction that granted the relief they sought. The ultimate dismissal of the case after a change in the law rendered it moot did not change this conclusion.  The court, in a 50-page opinion, said in part:
In this case, the Plaintiffs “prevailed by every measure of victory.” The relief Plaintiffs obtained—the ability to secure marriage licenses and marry—was “preliminary” in name only. It is not the “fleeting” success that fails to establish prevailing-party status.  After the Court obtained compliance with the Preliminary Injunction Orders, Plaintiffs received marriage licenses. And once the plaintiff-couples received their marriage licenses, their rights were not subject to revocation….
... Couples continued to receive marriage licenses after the Kentucky General Assembly amended the law – albeit, on a form Davis felt more comfortable with. Therefore, Plaintiffs’ preliminary-injunction success materially altered their legal relationship with Davis, and that court-ordered change was enduring and irrevocable. Accordingly, the Court concludes that the Plaintiffs “prevailed” within the meaning of § 1988 and are entitled to attorneys’ fees.
The court also held that the state of Kentucky, not Rowan County, is liable for the attorneys’ fees. AP reporting on the decision says Davis plans to appeal, but the state of Kentucky has not yet decided whether it will appeal the ruling. [Thanks to Tom Rutledge for the lead.]

Friday, July 21, 2017

Constitutionality Of No-Fly List Upheld

In Mohamed v. Holder, (ED VA, July 20, 2017), a Virginia federal district court upheld the constitutionality of the government's No-Fly List in a challenge by a Muslim American citizen originally from Somalia.  One of plaintiff's challenges implicated religious freedom rights. The court said in part:
He argues that many First Amendment freedoms, such as the free exercise of religion, cannot be fully enjoyed without recognizing the right to travel internationally, such as by traveling to Mecca to fulfill the Islamic duty of hajj....  
There is much to warrant extending the fundamental right to travel or movement to include international travel. As Plaintiff correctly observes, the right to international travel is recognized by international agreements to which the United States is a party, and in today’s world, restricting a person’s right to international travel can, in some circumstances, have as profound an adverse effect on a person’s ability to exercise other liberty interests as a restriction on the right to interstate travel. .... 
Nevertheless, the United States also has a long history of judicially sanctioned restrictions on citizens’ international travel in the interests of foreign affairs and national security that would never have been countenanced with respect to interstate travel.... Moreover, the Supreme Court has strongly implied, though it has not explicitly stated, that there is no fundamental right to international travel.

Church Youth Group Covered By Megan's Law

In State v. S.B., (NJ Sup. Ct., July 20, 2017), the New Jersey Supreme Court held that a youth ministry associated with a church is a "youth serving organization" under Megan's Law. That law prohibits sex offenders whose victims were minors from participating in any way in these youth organizations.  The court emphasized it was deciding a question of statutory interpretation and that no constitutional issue was raised by the parties.  In the case, the defendant whose sexual assault convictions took place in 1991 was a volunteer youth leader, counselor, mentor, and chaperone for children ages 12- 17 in the church's No Limits Youth Ministry. NJ.com reports on the decision.

Court Enjoins Illinois Law Requiring Referrals Out For Abortions

In National Institute of Family Life Advocates v. Rauner, (ND IL, July 19, 2017), an Illinois federal district court granted a preliminary injunction to plaintiffs, a group of pro-life health care facilities and medical personnel, who object to Illinois SB 1564.  The statute, as a condition of immunity from suit for not performing conscience-infringing health care services, requires objecting personnel to refer the patient elsewhere for the services.  The court, citing other free-expression cases, concluded:
...the amended act under review in this case applies only to health care providers with conscience-based objections to certain legal treatment options such as abortion. Therefore, the court finds that plaintiffs have demonstrated a likelihood of showing that the amended act discriminates against health care providers that are of the point of view that abortion is wrong by compelling only them to speak a message that, from their viewpoint, is abhorrent.
The court issued a preliminary injunction barring enforcement of the statute
to the extent that enforcement would penalize health care facilities, health care personnel, or physicians who object to providing information about health care providers who may offer abortion or who object to describing abortion as a beneficial treatment option.
Christian Post reports on the decision.

Catholic Order Sues To Force Rerouting of Pipeline

A religious Order of Catholic women last week filed suit in a Pennsylvania federal district court contending that a decision of the Federal Energy Regulatory Commission violates the Religious Freedom Restoration Act. The complaint (full text) in Adorers of the Blood of Christ v. Federal Energy Regulator Commission, (ED PA, filed 7/14/2017), contends that FERC's approval of the Atlantic Sunrise Pipeline route running through the religious Order's property, and giving Transcontinental Pipeline Company the power to take the land by eminent domain, substantially burdens the Order's religious belief that it must protect and preserve the land it owns. The suit contends that because FERC could approve an alternative route that goes around the property owned by the Catholic Order, it has not used the least restrictive means to achieve its goal. Adorers announced the lawsuit in a blog post.

Thursday, July 20, 2017

Activist's Suit Argues Gay Pride Flags Are Religious Symbols

The San Diego Union Tribune reported yesterday that anti-gay marriage activist Chris Sevier has filed suit against four members of Congress seeking to force them to remove rainbow flags they have in the hallways outside their Congressional offices.  According to the Union Tribune:
Sevier’s 38-page complaint asks the federal District Court in the District of Columbia to determine that “‘homosexuality’ and other forms of self-asserted sex-based identity narratives are a ‘religion,’” and that the colorful banners are a religious symbol for the “homosexual denomination.” ...
Sevier also asked the court to overturn Supreme Court rulings that ended a prohibition against sodomy and federal policies that only recognized opposite-sex marriages, as well as Obergefell V. Hodges, the 2015 ruling that found that same-sex couples have a fundamental right to marry.
Further, he said the members who displayed the flag should be removed from office.
Sevier has previously lost suits, aimed at discrediting same-sex marriage, in which he challenged state refusals to allow him to marry his laptop. (See prior posting.)

Court Dismisses Husband's Suit Over Pastor's Affair With Wife

In Laidlaw v. Converge Midatlantic, 2017 Phila. Ct. Com. Pl. LEXIS 203 (PA Com. Pl., July 19, 2017), a Pennsylvania trial court dismissed a suit brought by a husband who is seeking damages for a sexual affair between his wife and the pastor of the couple's church.  In prior years the pastor had furnished marriage counseling to the couple.  While the suit was framed as claims for negligence, infliction of emotional distress, fraud and defamation, the court held that these are in reality "heart balm" torts which were eliminated by case law and statute in Pennsylvania decades ago.  The court added:
Even if Appellant's claims were not barred as obsolete heart balm torts, the First Amendment to the United States Constitution requires this Court to dismiss them because they would constitute impermissible state intrusion upon religion. Appellant's claims against his church and pastor for the affair are wholly based in religious doctrine, perceived social pressures from his religious community, and his own faith-his personal faith in his pastor and in his church. Therefore, the Court would be forced to interpret and evaluate church canons, discipline, and faith to determine the merit of his claims.

Tax Court Says Omission of Cost of Donated Property Justifies Full Disallowance of Deduction

In RERI Holdings I, LLC v. Commissioner, (US TC, July 3, 2017), the United States Tax Court held that a charitable deduction for property should be disallowed in full because the taxpayer failed to include the property's cost basis on IRS Form 8283, the form for reporting Non-Cash Charitable Contributions.  The taxpayer did include the fair market value of the property, which it listed as $33 million.  The Tax Court concluded that the actual fair market value was $3.46 million. Reporting on the case, BNA Daily Report for Executives [subscription required] says that the case has caused a stir among tax lawyers because cost basis is rarely relevant and failure to include it is generally seen merely as a technical violation.  The Tax Court, however, said that listing of cost basis assists the IRS in determining whether the fair market value is overstated.

Wednesday, July 19, 2017

Supreme Court Rules Again On Scope of Travel Ban During Appeal

Once again the Supreme Court has found a complicated middle path in the ongoing challenge to President Trump's second Travel Ban Executive Order.  As previously reported, a Hawaii federal district court held that the government too narrowly interpreted the Supreme Court's temporary order that precludes while appeal is pending, enforcement of the ban against foreign nationals who have a bona fide relationship with a person or entity in the United States.  The government asked the Supreme Court to clarify the matter.  Today in Trump v. Hawaii, (Sup. Ct., July 19, 2017), after receiving briefs on the matter, the Supreme Court refused to stay the portion of the district court's order that allows in otherwise banned foreign nationals from 6 Muslim-majority countries if the travelers have grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, or cousins in the United States. The Supreme Court however suspended, while the government's appeal to the 9th Circuit is pending, the portion of the district court's order that would have allowed entry of refugees who have assurances of placement from a resettlement agency, as well as those entering under the Lautenberg Program.  Justices Thomas, Alito and Gorsuch said they would have stayed the entire district court order.  SCOTUSblog reports on the Supreme Court's action.

Pence Speaks To Christians United For Israel

On Monday, Vice President Mike Pence delivered a nearly 25-minute address at the Christians United for Israel Washington Summit.  His remarks (full text) included extensive references to the Trump Administration's support for Israel and to Pence's own religious beliefs.  Here are a few excerpts:
Now as the Good Book says: If you owe debts, pay debts.  If honor, then honor.  If respect, then respect.  And I’m really here on the President’s behalf and on our entire team’s behalf to pay a debt of gratitude to all of you who helped elect a President who is fighting every single day to defend faith, restore freedom, and strengthen America’s unbreakable bond with our most cherished ally, Israel....
My friends, to look at Israel is to see that the God of Abraham, Isaac, and Jacob keeps his promises, keeps the promises He makes to His people and to each one of us.
Ezekiel prophesized:  “Behold, I will cause breath to enter into you, and ye shall live.”  And the State of Israel and her people bear witness to God’s faithfulness, as well as their own....
For my part, like all of you, my passion for Israel springs from my Christian faith.  The songs of the land and the people of Israel were the anthems of my youth.  As for me and my house, we pray for the peace of Jerusalem and all who call her home.  It’s really the greatest privilege of my life to serve as Vice President to a President who cares so deeply for our most cherished ally.

Russian Court Labels Novel By German Rabbi As "Extremist" Literature

According to JTA, on Monday a Russian court in the city of Sochi classified as "extremist" literature a novel written by a prominent 19th century German rabbi, Marcus Lehmann.  The novel set in Medieval Europe and titled Forcibly Baptized traces the protagonist's determination to maintain his Jewish faith in the face of outside pressures to renounce it.  The Sochi court's decision added the book to the federal list of banned extremist materials compiled by Russia's Ministry of Justice.  Rabbi Boruch Gorin, a prominent aide to Russia's Chief Rabbi strongly denounced the action of the court, saying that it is attempting to limit the growth of Jewish spiritual life.

German Judge Says Litigant May Not Wear Hijab In Court

Daily Sabah reported yesterday that in the German state of Brandenburg, a family court judge has informed a Muslim woman who is suing her husband for divorce that she cannot appear in court wearing a headscarf.  The judge sent a judicial letter to the woman's attorney explaining: "Religiously motivated statements such as headscarves are not allowed in the courtroom and during a hearing."  The Muslim woman bringing the divorce action was originally a refugee from Syria. An appeal has been filed, delaying the divorce hearing originally scheduled for July 27.

Tuesday, July 18, 2017

USCIRF Issues Report On Women's Rights and Religious Freedom

The U.S. Commission on International Religious Freedom yesterday issued a new report titled Women and Religious Freedom: Synergies and Opportunities.  Here is the "Overview" section of the 14-page report:
Observing the synergies between FORB [Freedom of Religion or Belief] and women’s equality has not been made particularly straightforward by the architecture of international human rights law. The human rights sources that address FORB and women’s rights to equality are distinct, and emerged from the lobbying of separate constituencies.
This textually distinct basis is compounded by the thrust of the research and advocacy in women’s rights, which strongly highlights that violations to women’s rights are carried out in the name of religion, or at least that violations to women’s rights are excused or postponed due to the intransigence of religious tradition and culture, whether perpetuated by state or non-state actors or a combination thereof. This serves to exacerbate the (mis)perception of a necessary and inevitable clash between women’s rights to equality and FORB.
The juxtaposition of these two allegedly conflicting rights is conceptually untenable and counterproductive.  It violates the universality of human rights in and of itself, since unless there is a holistic approach to human rights, its “indivisibility” and “interdependence” is denied. Furthermore, it fails to provide full redress to all, since it forces female claimants to “choose” to advance their right to either equality or FORB.
The purpose of this paper is to seek to identify synergies as well as complexities between FORB and the right to women’s equality through the analysis of various international human rights law documents impacting this topic.

Russian Supreme Court Appeals Panel Affirms Ban on Jehovah's Witness Activity

Tass and BBC News reported yesterday that the appellate panel of the Russian Supreme Court has rejected an appeal of an April 2017 finding by a single judge of the Supreme Court that the Jehovah's Witness national headquarters in St. Petersburg and its 395 local affiliates should be classified as "extremist" organizations. (See prior posting.) The presiding judge yesterday held:
The ruling passed by the Supreme Court of the Russian Federation on April 20 shall remain unchanged and the appeal shall not be entertained.
This affirms the ban on all Jehovah's Witness activity and the order that the organizations' property be seized by the state.  Jehovah's Witness respondents plan an appeal to the European Court of Human Rights.

Suit Challenges Hawaii's Notice Mandate For Pro-Life Pregnancy Centers

A suit was filed last week in Hawaii federal district court challenging Hawaii's SB 501 enacted earlier this year that requires "limited service pregnancy centers" to disseminate on-site to patients a notice that says:
Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women. To apply online for medical insurance coverage, that will cover the full range of family planning and prenatal care services, go to mybenefits.hawaii.gov. Only ultrasounds performed by qualified healthcare professionals and read by licensed clinicians should be considered medically accurate.
The complaint (full text) in Calvary Chapel Pearl Harbor v. Chin, (D HI, filed 7/12/2017), alleges in part:
Plaintiffs are a non-profit, pro-life, Christian church operating a pregnancy center known as A Place for Women ..., and a national non-profit pro-life membership organization with 5 affiliates in Hawaii. Plaintiffs seek to provide help and pro-life information to women in unplanned pregnancies so that they will be supported in choosing to give birth....
The Act, however, imposes government compelled speech upon the Plaintiff pregnancy centers ... in ways that undermine the centers’ messages.
The complaint contends that the law infringes free speech and free exercise of religion, is unconstitutionally vague and violates federal statutory law that protects health care entities from being required to refer patients for abortions. Christian Times reports on the lawsuit.

Monday, July 17, 2017

British Survey of Anti-Semitic Crime Finds Overall Increase For 2016, But Fewer Violent Crimes

As reported by JTA, Britain's non-profit organization Campaign Against Antisemitism yesterday released its National Antisemitic Crime Audit-- 2016 in Review.  The report found 1,078 Anti-Semitic crimes in 2015, an increase of 14.9% from the prior year.  105 of these were violent crimes. Violent anti-Semitic crime though fell by 44.7% from 2015.  According to the report:
Ever since crime targeting British Jews began to surge in 2014, each successive year has set a new record for antisemitic crime, and each year fewer crimes have been charged. 2016 was the worst year on record for antisemitic crime, yet instead of protecting British Jews, the authorities prosecuted merely fifteen cases of antisemitic hate crime, including one solitary violent crime.

Kansas Court Says No Appeal On Vaccination Order For Children In State Custody

In an unpublished opinion, a Kansas state appeals court appears to have held that a mother who has religious objections to vaccination has no right to appeal a trial court order that her children, who have previously been placed in temporary custody of the state, receive physician-recommended vaccinations.  In In the Interest of M.H.D., K.S.D., and O.H.D., (KA App., July 14, 2017), the court held that while the mother was given a hearing on the issue at the trial court level, the trial court order entered more than 30 days after the children's placement does not fit within the category of orders over which Kansas statutes give the Court of Appeal appellate jurisdiction.

Suit Challenges Christian-Only Ownership Rules In Chautauqua Cottage Community

A discrimination lawsuit was filed in a Michigan federal district court last week against the Bay View Association, a Lake Michigan summer community with roots in the Chautauqua Movement. The complaint (full text) in Bay View Chautauqua Inclusiveness Movement v. Bay View Association of the United Methodist Church, (WD MI, filed 7/10/2017), challenges provisions in the Association's rules that limit cottage ownership to practicing Christians.  The suit contends that this is religious discrimination that violates the U.S. and Michigan constitutions, the federal Fair Housing Act, and Michigan's Elliott-Larsen Civil Rights Act.  Petoskey (MI) News-Review reports on the lawsuit.

Recent Articles of Interest

Fom SSRN:
From SmartCILP:

Sunday, July 16, 2017

Recent Prisoner Free Exercise Cases

In In re Ohio Execution Protocol Litigation, 2017 U.S. Dist. LEXIS 107468 (SD OH, July 12, 2017), an Ohio federal magistrate judge rejected RLUIPA and free exercise challenges to the provision in Ohio's Execution Protocol that allows the warden to limit a death row inmate's last words statement if it contains language intentionally offensive to the execution witnesses. Plaintiffs claimed that this might limit them from including a prayer for atonement in their last words because witnesses might find the prayer offensive.

In Crawley v. Parsons, 2017 U.S. Dist. LEXIS 107775, (WD VA, July 12, 2017), a Virginia federal district court allowed a House of Yahweh inmate to move ahead with his claim against the prison chaplain that he was not allowed to participate in the 2015 Passover observance. His claims against other defendants for this, and his claims regarding observance of the Feast of Tabernacles were dismissed.

In Crutcher v. Bolling, 2017 U.S. Dist. LEXIS 106778, (ND AL, July 11, 2017), an Alabama federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 107832, May 18, 2017), and dismissed without prejudice an inmate's complaint that conditions of solitary confinement denied him access to church.

Quebec Tribunal Finds Discrimination When Jewish Owner Enforces Jewish Practice On Jewish Employees

In Canada, Quebec's Tribunal for Human Rights in a decision last month held that the Jewish owner of a hair salon violated the religious rights of a Jewish employee when she decided that none of the Jewish employees should work on Saturdays, the Jewish Sabbath.  Hair stylist  Richard Zilberg wanted to include Saturdays in his 6-day work week since this was the busiest day of the week, but Spa Liv Zen owner Iris Gressy prohibited it. Zilberg was fired after he revealed to a client the reason he was no longer available on Saturdays.  In Commission on Human Rights and Youth Rights v. 9220-3454 Quebec, Inc., (QCTDP, June 27, 2017), the Tribunal held that this violated Zilberg's rights under Quebec's Charter of Human Rights and Freedoms to equality in employment, freedom of conscience and religion, and dignity and respect for his private life.  According to the Tribunal:
[Zilberg] stated that the Defendants’ decision amounted to a hurtful determination of how he should practice his religion. He felt outraged that the Defendants could ... impose upon him a religious practice that violates his rights to freedom of conscience and religion.
... [H]e felt no less true to his faith because, for various personal reasons, he did not conform to the religious practice of observing the Sabbath; he in fact celebrated other important Jewish holidays with his family.
... Consequently, the interdiction to work on Saturdays imposed upon Mr. Zilberg genuinely affected him as he practiced his religion according to his own personal values.
The Tribunal awarded Zilberg $6,006 in material damages and $4,000 for the moral prejudice he suffered, and $2,500 in punitive damages. Neither Cressy nor her business contested the claims against them and neither were present at the Tribunal hearing. Canadian Press this week reported on the decision.

SCOTUS Review Sought In Florist's Refusal To Sell For Same-Sex Wedding

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arlene's Flowers, Inc. v. State of Washington, (cert. filed, 7/14/2017).  In the case, the state of Washington's Supreme Court held that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination. (See prior posting.) The petition for review asks the U.S. Supreme Court to combine this case with the Masterpiece Cake Shop case in which it has already granted review (see prior posting), or to at least hold this case until it decides Masterpiece Cake Shop. Tri-City Herald reports on the cert. petition.

Establishment Clause Challenge To Portrayal of Hinduism In California Schools May Proceed

In California Parents for the Equalization of  Educational Materials v. Torlakson, (ND CA, July 13, 2017), plaintiffs challenge the treatment of Hinduism in the Standards and the Framework for history and social science courses taught in the California public schools.  They claim discrimination against Hinduism as compared to the treatment of other religions.  A California federal district court last week held that plaintiffs had stated a claim under the Establishment Clause.  The court relied on impressions of one sixth-grader to support its conclusion that the curriculum may have favored other religions over Hinduism:
The primary message that sixth grade student received was that her teacher and classmates considered Hinduism “cruel,” “primitive and unjust,” and that Hinduism had not been treated with “fairness and dignity.” ... The student formed this impression based in large part on the Framework’s content, which emphasized that the caste system was a part of Hinduism. 
The court however dismissed plaintiffs' equal protection challenge, holding that the equal protection clause may not be used to challenge the content of school curriculum.  The court also rejected plaintiffs' claims of discrimination in the process of adopting the curriculum Framework, as well as free exercise and substantive due process challenges. Courthouse News Service reports on the decision.

Christian Refugees To U.S. Outnumber Muslim Refugees So Far In 2017

A Pew Research Center analysis released last week shows that during the first months of the Trump Administration, Christian refugees admitted to the United States outnumber Muslim refugees. This is a change from last year.  During fiscal 2016, of refugees admitted, 46% were Muslim and 44% were Christian. But from Jan. 21 until June 30 of this year, 50% are Christian (9,598), 38% are Muslim (7,250), 11% are other religions and 1% have no religious affiliation.  The difference is in part accounted for by shifts in the countries of origin of admitted refugees.  During the first months of the Trump Administration, the largest number of refugees (3,235) came from the Democratic Republic of the Congo.