Trump Keeps Special Envoy For LGBTI Rights At State Department

Foreign Policy this week reports that  the Trump Administration has decided to keep Obama-appointee Randy Berry in his State Department position of Special Envoy for the Human Rights of LGBTI Persons. According to Foreign Policy:

The special envoy position was created during the Obama years to fight back against the discrimination of lesbian, gay, bisexual, and transgender people around the globe. Conservative groups have called the office an attempt to “entrench the LGBTI agenda” into the United States government, and accuse it of browbeating countries opposed to gay-friendly school textbooks and same-sex marriage.

Berry repeatedly stressed that his goal was to convince foreign governments to stop violence against gays and lesbians rather than pressure every nation to allow same-sex marriage. 

Berry, who is an openly gay career Foreign Service officer, will also stay on as deputy assistant secretary to the Bureau of Democracy, Human Rights, and Labor, a position to which he was appointed in the last hours of the Obama administration. Christian evangelical groups had called for Trump to dismiss Berry.

2016 Census of Hate Groups Released

The Southern Poverty Law Center yesterday released its annual census of hate groups and other extremist organizations. The census, which lists 917 groups for 2016, is in the form of an interactive map showing the location of each group. The 2015 census showed 892 hate groups.  Anti-Muslim hate groups rose to 101, up from 34 a year earlier.

6th Circuit: County Board's Prayer Practice Violates Establishment Clause

In Bormuth v. County of Jackson, (6th Cir., Feb. 15, 2017), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  The majority held that the County Commissioners went beyond that permitted by the Supreme Court's Town of Greece decision.  Plaintiff in the case was Peter Bormuth who described himself as a Pagan and an Animist. When during the public comment period at one meeting Bormuth complained that the invocation practice violated the Establishment Clause, one of the Commissioners "made faces expressing his disgust" and then turned his chair around so he would not look at Bormuth while he spoke.

Judge Moore's majority opinion said in part:

A combination of factors distinguishes this case from the practice upheld in Marsh and Town of Greece, including one important factor: the identity of the prayer giver.... Here, the Jackson County Commissioners give the prayers.... The difference is not superficial. When the Board of Commissioners opens its monthly meetings with prayers, there is no distinction between the government and the prayer giver: they are one and the same....

Because they are the ones delivering the prayers, the Commissioners—and only the Commissioners—are responsible for the prayers’ content.... And because that content is exclusively Christian, by delivering the prayers, the Commissionersare effectively endorsing a specific religion....

What is more, the prayer givers are exclusively Christian because of an intentional decision by the Board of Commissioners.... [A]t least one Jackson County Commissioner admitted that, in order to control the prayers’ content, he did not want to invite the public to give prayers....

First, the Board of Commissioners directs the public to participate in the prayers at every monthly meeting.... Second, the Board of Commissioners has singled out Bormuth for opprobrium. During a public meeting, a Commissioner stated that Bormuth’s lawsuit was an "attack on Christianity and Jesus Christ, period."...

Third, Bormuth has submitted evidence suggesting that the Board of Commissioners has “allocated benefits and burdens based on participation in the prayer.” ... Shortly after Bormuth filed his complaint, Jackson County officials nominated members for the County’s new Solid Waste Planning Committee from a pool of applicants.... Although Bormuth had three years of experience working on related issues, the Board of Commissioners did not nominate him.

Judge Griffin filed a lengthy dissenting opinion. AP reports on the decision.

Trump's EEOC Continues To Fight Transgender Employment Discrimination

Slate reported yesterday that it has become clear that the EEOC under the Trump Administration will continue to fight employment discrimination against transgender individuals.  In a brief (full text) filed with the 6th Circuit on Feb. 10, the EEOC argued that Title VII's prohibition on "sex" discrimination includes discrimination based on transgender status and/or transitioning.  It also argued that religious beliefs are not a basis for discriminating against transgender individuals. The brief comes in an appeal in EEOC v. R.G, a suit in which a Michigan federal district court upheld a funeral home's defense under the Religious Freedom Restoration Act to a charge that it engaged in gender stereotyping when it dismissed a transgender employee who was in the process of transitioning from male to female. (See prior posting.)

UPDATE: I should add that it has become clear that the EEOC will continue to take this position for now.  Because there is a vacancy on the Commission, a Democratic commissioner's position comes up for appointment later this year and the General Counsel position is vacant, the Commission could change its position in the future. The Slate article points out these possibilities.

New Suit Challenges Syrian Refugee Ban In Trump Executive Order; Hawaii Suit Moves Ahead

The portion of President Trump's travel ban Executive Order which suspends entry of refugees from Syria into the United States was challenged in a lawsuit filed on Monday in a Wisconsin federal district court by a Sunni Muslim who was granted asylum status because of torture and religious persecution he had
suffered in Syria.  The complaint (full text) in Doe v. Trump, (WD WI, filed 2/13/2017), says that the ban prevents plaintiff from bringing his wife and 3-year old daughter to the U.S. from Syria under a derivative asylum petition which is being processed by the government. The Executive Order prevents USCIS from adjudicating the petition and the State Department from issuing visas to his family.  It also contends that the nationwide temporary restraining order issued by a Washington federal district court is not broad enough to cover this situation because the TRO applies only to enforcement at "United States borders and ports of entry." This new suit alleges that the Executive Order violates the Establishment Clause, the Equal Protection and Due Process clauses and various statutory provisions. WRN News reports on the lawsuit.

Meanwhile, Hawaii's Attorney General announced yesterday that a federal district judge has partially lifted a stay he imposed last week on Hawaii's suit against the Executive Order. This allows an Hawaii resident to be added as a plaintiff.  The court also allowed Hawaii to file an amended complaint (full text) adding a challenge under the Religious Freedom Restoration Act. KHON News reports on these developments.

Pakistani Court Bans Public Valentine's Day Celebrations

AP reports that a court in Pakistan's capital of Islamabad has banned all Valentine's Day celebrations in public places or at official levels in the capital city. The court, whose ruling applies only in the capital city, said that the celebrations violate Islamic law.  Pakistan's media regulator instructed all media outlets not to print or broadcast any Valentine's Day promotions.

Virginia Federal Judge Says Trump Travel Ban Likely Violates Establishment Clause

Yesterday another court ruled against President Trump's Executive Order that temporarily bars entry into the country of individuals from seven majority-Muslim nations.  In Aziz v. Trump, (ED VA, Feb. 13, 2017), a Virginia federal district court concluded that Virginia had produced unrebutted evidence that it is likely to succeed on its Establishment Clause claim, saying in part:

The "Muslim ban" was the centerpiece of the president's campaign for months.... [Rudy] Giuliani said two days after the EO was signed that Trump's desire for a Muslim ban was the impetus for this policy.

The court enjoined enforcement of Section 3(c) of the Executive Order at any port of entry against Virginia residents how either were lawful permanent residents or who held a valid student visa or work visa at the time the Executive Order was signed. NBC4 News reports on the decision.

Settlement Reached In Suit Against Jehovah's Witness Congregation Over Sex Abuse

Penn Live reports that a settlement has been reached on the fifth day of a trial in Philadelphia, Pennsylvania in a suit against a Jehovah's Witness congregation and other Jehovah's Witness organizations. In the suit, plaintiff claims that as a teenager she was sexually abused by a member of her church and church elders covered up the situation and failed to report it to authorities after the girl's mother contacted church elders.  The full text of the complaint in the case, Fessler v. Watchtower Bible and Tract Society of New York, Inc., (PA Com. Pleas, filed 3/26/2014), is discussed in another report by Penn Live.

Court Denies Preliminary Injunction In Tribal Challenge To Dakota Pipeline

AP reports that a federal district judge in Washington, D.C. yesterday refused to grant a temporary injunction against construction of the portion of the Dakota Access Pipeline running under Lake Oahe.  The Cheyenne River and Standing Rock Sioux tribes had sued claiming that the pipeline violates their rights under the Religious Freedom Restoration Act. (See prior posting.) The judge ruled on the motion after an hour-long hearing, concluding that the Tribe's religious exercise would not be infringed before oil actually begins running through the pipeline. Full arguments on the motion will be heard by the court on Feb. 27.

Trump Justice Department Withdraws Objections To Nationwide Injunction In Transgender Bathroom Case

As previously reported, last year a Texas federal district court issued a nationwide preliminary injunction barring the federal government from enforcing Guidelines interpreting Title IX as barring discrimination by schools on the basis of gender identity.  In particular the Guidelines took the position that transgender students must have access to restrooms and locker rooms consistent with their gender identity. Subsequently the Obama administration asked the court for a partial stay that would limit the injunction, pending appeal, to the 13 states that were plaintiffs in the case.  As reported by AP, a hearing on that motion was to have been held Feb. 14.  However on Friday, the Justice Department withdrew the government's request for a partial stay, and indicated it was "currently considering how best to proceed in this appeal." (Full text of court filing.)

Last week, the U.S. 9th Circuit Court of Appeals approved a similar nationwide injunction against President Trump's Executive Order barring travel from seven Muslim countries. (See prior posting.) In its unsuccessful motion for a stay (full text, see pg. 24), the Justice Department argued that a nationwide injunction was improper because it went beyond providing relief to the plaintiffs in the case.

Russians Divided Over Return of Famous Cathedral To The Church

AP reports that in St. Petersburg, Russia, competing demonstrations were staged yesterday over the city's decision, announced last month, to return St. Isaac's Cathedral to the Russian Orthodox Church. The Cathedral was seized after Soviets took control in 1917, and was turned into a museum.  It has become one of the city's top tourist attractions. Opponents of the return are concerned that Church tours will begin to focus too much on the Cathedral's religious aspects at the expense of its architectural and cultural importance.

Recent Articles of Interest

From SSRN:

• Andrew Koppelman, If Liberals Knew Themselves Better, Conservatives Might Like Them Better, (20 Lewis & Clark L. Rev. 1201 (2017))
• Graham Polando, Restraining Free Exercise: Protection Orders and Church Attendance, (February 5, 2017).
• B. Jessie Hill, Kingdom Without End? The Inevitable Expansion of Religious Sovereignty Claims, (Lewis & Clark Law Review, Vol. 20, 2017).
• Robin Fretwell Wilson, Unpacking the Relationship between Conscience and Access, (Forthcoming, Law, Religion, and Health in the United States, Holly Fernandez Lynch, I. Glenn Cohen, Elizabeth Sepper, eds. Cambridge U. Press 2017).
• Sahar F. Aziz, Losing the 'War of Ideas': A Critique of Countering Violent Extremism Programs, (Texas International Law Journal, Forthcoming).
• Christian Turner, Submarine Statutes, (February 8, 2017).
• Mary Anne Case, Forms of Patriarchy in Amoris Laetitia and in the Papacy of Francis, (U of Chicago, Public Law Working Paper No. 613 (2017)).
• Claudia E. Haupt, Antidiscrimination in the Legal Profession and the First Amendment: A Partial Defense of Model Rule 8.4(g), (19 University of Pennsylvania Journal of Constitutional Law Online (2017 Forthcoming)).
• Gertrude N. Levine & Samuel J. Levine, Internet Ethics, American Law, and Jewish Law: A Comparative Overview (21 J. Tech. L. & Pol’y 37 (2016)).

From SSRN (Focus on individuals):

• Andrew Koppelman, Kent Greenawalt, Defender of the Faith, (Texas Law Review, Forthcoming).
• Michael John DeBoer, Justice Brent E. Dickson, State Constitutional Interpretation, and the Religion Provisions of the Indiana Constitution, (Indiana Law Review, Vol. 50, No. 1, 2016).

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

• Shital Prakash Kharat, Effect of the Hindu Succession (Amendment) Act 2005 – Judicial Response, (February 6, 2017).
• Grant Robert Hooper, From the Magna Carta to Bentham to Modern Australian Judicial Review: Themes of Practicality and Spirituality, (Australian Institute of Administrative Law (AIAL) Forum, Vol. 84, pp. 22-44, 2016).

From SSRN (LGBT Rights):

• Reva Siegel, Same-Sex Marriage and Backlash: Consensus, Conflict, and Constitutional Culture, (February 9, 2017).
• Susan Frelich Appleton, Obergefell's Liberties: All in the Family, (Ohio State Law Journal, Vol. 77, No. 5, 2016).
• Malcolm Langford, Revisiting Joslin v. New Zealand: Same-Sex Marriage in Polarised Times, (E. Brems and E. Desmet, Integrated Human Rights in Practice: Rewriting Human Rights Decisions (Edward Elgar, 2017)).
• Katherine Pratt, The Tax Definition of 'Medical Care': A Critique of the Startling IRS Arguments in O'Donnabhain v. Commissioner, (23 Michigan Journal of Gender & Law 313 (2016)).
• Robin Fretwell Wilson, Squaring Faith and Sexuality: Religious Institutions and the Unique Challenge of Sports, (Law and Inequality: A Journal of Theory and Practice, Vol. 34, No. 385, 2016).
• Robin Fretwell Wilson, The Nonsense About Bathrooms: How Purported Concerns over Safety Block LGBT Nondiscrimination Laws and Obscure Real Religious Liberty Concerns, (Lewis & Clark Law Review, Vol. 20, No. 4, 2017).

From SmartCILP and elsewhere:

• Michael J. Churgin, Is Religion Different? Is There a Thumb on the Scale in Refugee Convention Appellate Court Adjudication in the United States? Some Preliminary Thoughts, [Abstract], 51 Texas International Law Journal 213-228 (2016).
• David L. Hudson, Jr. & Emily H. Harvey, Dissecting The Hybrid Rights Exception: Should It Be Expanded or Rejected?, [Abstract], 38 University of Arkansas Little Rock Law Review 449-475 (2016).
• Hon. Gail T. Kulick, Tadd M. Johnson, Rebecca St. George, & Emily Segar-Johnson, From Dysfunction and Polarization to Legislation: Native American Religious Freedom Rights and Minnesota Autopsy Law, 42 Mitchell Hamline Law Reveiw 1699-1721 (2016).
• Law, Religion and the Family Unit After Hobby Lobby: A Tribute to Professor Harry Krause, 2016 University of Illinois Law Review 1227-1808.
• Symposium: Law and Religion In an Increasingly Polarized America,(Lewis & Clark Law Review, Vo. 20, No. 4, 2017).
• Symposium on Religious Liberty and Christian Higher Education, (Two Kingdoms Network, Concordia University, 2017). The Symposium, among others, includes Howard M. Friedman, The Future of Religious Liberty.

USCIRF Issues New Report On Vietnam

Last week the U.S. Commission on International Religious Freedom released a report titled Religious Freedom in Vietnam: Assessing the Country of Particular Concern Designation 10 Years After its Removal. The Introduction summarizes the report's theme:

Of all the countries the U.S. government has designated as CPCs, Vietnam is unique in that it is the only one removed from the CPC list due to diplomatic activity. This raises several questions: Why was Vietnam first designated as a CPC? What was different about this designation that led to Vietnam’s swift removal from the list? If the strategy was a success in de-listing Vietnam, why has it not been replicated in other countries? This paper examines the history and efficacy of Vietnam’s CPC designation, ultimately arguing it should be re-designated.

Florida Judge Says Refusal To Sell Cake With Anti-Gay Message Is Not Religious Discrimination

A Florida Administrative Law Judge in a decision last week recommended to the Florida Commission on Human Relations that it find a Longwood, Florida bakery did not violate the state's public accommodation law when it effectively refused an order for a cake with the inscription "Homosexuality is an abomination unto the Lord." Cut the Cake bakery, owned by a mother and daughter, quoted a caller a price of $5,850 for the cake after the bakery had been the subject of thousands of calls per week when a You-Tube video was posted of a previous call in which the bakery refused to make a cake displaying an anti-homosexual message. In Mannarino v. Cut the Cake Bakery, (FL Div. Admin. Hearings, Feb. 9, 2017), petitioner claimed that the refusal constituted religious discrimination against him as a Christian.  The judge ruled, however, that the bakery did not fall within the definition of "public accommodation" under Florida law since it does not sell food for consumption on the premises. Additionally he ruled that petitioner had not shown religious discrimination, saying:

Cut the Cake refused to fulfill Petitioner’s order, not because he was Christian, but because of what it perceived to be the purpose of his message. Cut the Cake considered Petitioner’s message mean-spirited, regardless of his religion or the Quote’s source.

St. Augustine Record reports on the decision.

Recent Prisoner Free Exercise Cases

In Fluker v. King, (5th Cir., Feb. 9, 2017), the 5th Circuit affirmed the dismissal of a suit by a Muslim inmate who complained that Muslim c-custody inmates could not attend Jumu’ah services outside of their unit while non-Muslim c-custody inmates could.

In Conway v. Alford, (8th Cir., Feb. 8, 2017), the 8th Circuit concluded that the mailroom's withholding of publications from the Church of Jesus Christ Christian, classified as a security threat/ terrorist group, did not substantially burden an inmate's religious exercise.

In Vasquez v. Rockland County, 2017 U.S. Dist. LEXIS 14746 (SD NY, Jan. 31, 2017), a New York federal district court dismissed a complaint by an inmate that he was prevented from observing Ramadan due to being placed on a suicide watch.

In Gilliam v. Baez, 2017 U.S. Dist. LEXIS 15680 (SD NY, Feb. 2, 2017), a New York federal district court dismissed without prejudice an inmate's complaint that on two occasions he was permitted to participate in Nation of Islam classes.

In Harris v. Norwood, 2017 U.S. Dist. LEXIS 15979 (WD AR, Feb. 6, 2017), an Arkansas federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 16205, Jan. 12, 2017) and permitted an inmate to proceed with his complaint that his free exercise rights were infringed when he, as a "pork free person", was denied pork free meal trays.

In Ayoubi v. Dart, 2017 U.S. Dist. LEXIS 16310 (ND IL, Jan. 31, 2017), an Illinois federal district court dismissed a complaint by a Muslim inmate who the court described as "an experienced pro se litigator." Plaintiff objected to limits on his access to religious services, refusal of post-Ramadan-fast meal trays, denial of a Halal diet containing meat, and prohibition on his using a prayer rug and wearing a head garment.

In Young v. Hooks, 2017 U.S. Dist. LEXIS 17115 (SD OH, Feb. 7, 2017), an Ohio federal magistrate judge recommended dismissing an inmate's complaint that during a search of his cell his bottle of prayer oil was poured out.

In Edwards v. Thomas, 2017 U.S. Dist. LEXIS 17111 (MD PA, Feb. 6, 2017), a Pennsylvania federal district court allowed a Muslim inmate to move ahead with his free exercise challenge to the refusal of his request for a kosher diet, which would have met his Halal diet requirements.

In Branco v. Milligan, 2017 U.S. Dist. LEXIS 18094 (ND OH, Feb. 7, 2017), an Ohio federal district court dismissed a complaint by an inmate that on one occasion officials overlooked his housing unit when calling Muslim inmates down for a meal during Ramadan.

In Wallace v. Olivarria, 2017 U.S. Dist. LEXIS 18148 (SD CA, Feb. 8, 2017), a California federal district court dismissed an inmate's claim that a change in the schedule for his prison job violated his right to practice his religion.

In Martinez v. Richardson, 2017 U.S. Dist. LEXIS 18188 (ED TX, Feb. 8, 2017), a Texas federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 18515, Jan. 19, 2017) and dismissed a complaint by a Satanist inmate that he was not permitted to perform Satanic rituals or possess various items (e.g. parchment paper, candles, a robe, a bell, a wand, a chalice) needed to practice his religion.

Driver's License Name Challenge Dismissed

In Bey v. State of Ohio, Bureau of Motor Vehicles, (OH App., Feb. 3, 2017), an Ohio state appellate court dismissed as moot a mandamus lawsuit by a member of The Moorish Science Temple of America challenging the refusal by the Bureau of Motor Vehicles to issue him a driver's license with the suffix "Bey" added at the end of his birth name.  After plaintiff filed suit, the state issued him the driver's license.  In an attempt to avoid mootness, plaintiff sought to amend his complaint to seek a class action against all Ohio governmental agencies that impede the free exercise of nationality and religious freedom by Moorish Science members in the state. However the appeals court relied on the doctrine that a writ of mandamus will not issue to compel an act already performed.

8th Circuit Upholds Solicitation Ban At Revenue Offices

In Brown v. Arkansas Department of Administration, (8th Cir., Feb. 3, 2017), the U.S. 8th Circuit Court of Appeals affirmed the dismissal of a suit brought by a Rastafarian minister challenging a no-solicitation policy at certain state Revenue Offices.  The ban prevented the minister from continuing to setup a table on the lawn of a revenue office to seek signatures for a ballot initiative on the Arkansas Medical Cannabis Act. (See prior posting.)  The appeals court held that the private property immediately surrounding the revenue office was a nonpublic forum, that the ban was reasonably related to the State’s interest in running revenue offices, and was viewpoint neutral.

RFRA Challenge To Dakota Access Pipeline Filed

As previously reported, last month President Trump issued a Presidential Memorandum directing the Secretary of the Army to expedite approval of construction of the controversial Dakota Access Pipeline (DAPL). A federal district court had previously denied the Standing Rock Sioux Tribe an injunction against the pipeline. (See prior posting.) As reported by Jurist, yesterday the Cheyenne River Sioux Tribe which had already intervened as a plaintiff in the challenge to the pipeline filed three motions in the case. First it asked to be allowed to file an amended complaint adding a Religious Freedom Restoration Act claim. (Full text of motion.) It then filed a motion (full text and supporting memorandum ) seeking a preliminary injunction, and a separate motion seeking a temporary restraining order (full text and supporting memorandum) directing the Army Corps of Engineers to withdraw the easement/right-of-way issued on February 8 that permits drilling under federally-owned lands under and surrounding Lake Oahe, explaining:

The Lakota people believe that the mere existence of a crude oil pipeline under the waters of Lake Oahe will desecrate those waters and render them unsuitable for use in their religious sacraments.

Suit Challenges Treatment of Hinduism In California School Curriculum

Suit was filed this week in a California federal district court challenging on 1st and 14th Amendment grounds the treatment of Hinduism in the California public school curriculum.  The complaint (full text) in California Parents for the Equalization of Educational Materials v. Torlakson, (N CA, filed 2/8/2017), contends:

Defendants have adopted and are implementing content standards and a curriculum framework that are the foundation of the history-social science education provided to all California public school students. The content standards, adopted by the State Board of Education (SBE) in 1998, explain the teachings of major world religions, their virtues and central figures, and the belief of adherents in the divine origins of their faiths. This is true for all religions covered except Hinduism, which is not portrayed as virtuous, does not include mention of religious figures, and is described as an “intellectual tradition” without reference to a belief in divine origins....

East Bay Times reports on the lawsuit. [Thanks to Glenn Katon for the lead.]

Community Room Policy Excluding Worship Held Unconstitutional

In His Healing Hands Church v. Lansing Housing Commission, (WD MI, Feb. 8, 2017), a Michigan federal district court held unconstitutional a Housing Commission policy that allows outside groups to use community rooms in housing projects, except for religious purposes, worship, or activities.  The court concluded that "the Housing Commission’s policy constitutes impermissible viewpoint discrimination."

UPDATE: An ADF press release points out that this decision makes permanent a preliminary injunction issued in the case last year.