Justice Alito Speaks On Faith and Religious Freedom

As reported by KYW Newsradio, yesterday U.S. Supreme Court Justice Samuel Alito received an honorary degree from Saint Charles Borromeo Seminary in Wynnewood, Pennsylvania. Alito spoke to graduates of the Schools of Philosophy and Theology.  A blog on the school's website also published Faith, Family, and Religious Freedom: A Conversation with Justice Samuel Alito conducted in anticipation of his visit.

Bahamas Constitution Protects Muslim Military Officer From Mandatory Christian Prayer

In Commodore Royal Bahamas Defence Force v Laramore, (Privy Council, May 8, 2017), the UK Judicial Committee of the Privy Council (a court of final appeal from Bahamas courts) held it unconstitutional under the Bahamian constitution to require a Muslim member of the Royal Bahamian Defence Force to participate in Christian prayers. At issue are the "ceremonial prayers" in regular weekly colours parades.  From 1993 to 2006, non-Christians could fall out during the prayers. A 2006 Memorandum ended that accommodation. Law & Religion UK has more on the decision.

EEOC Sues Over Refusing To Accommodate Jewish Employee's Holiday Observance

The EEOC announced on Tuesday that it has filed a Title VII lawsuit against XPO Last Mile, Inc., a delivery company, for rescinding a job offer to Tzvi McCloud who refused to report for his first day of work on Rosh Hashanah.  A company vice president allegedly told McCloud that if he gave him a religious accommodation for his Jewish religious beliefs, he would have to extend accommodations to other employees as well.

1st Amendment Requires Dismissal of Some Priest Sexual Abuse Allegations

In Roy v. Norwich Roman Catholic Diocesan Corp., 2017 Conn. Super. LEXIS 774 (CT Super., April 24, 2017), plaintiff sued claiming that from 1990 to 1996 when he served as an altar boy at a Pomfret, Connecticut Catholic church he was sexually assaulted hundreds of times by a now-deceased priest, Fr. Paul Herbert.  While the trial court permitted plaintiff to move ahead on a number of his claims, it dismissed three of them on the ground that these would impermissibly entangle the court in matters of discipline, faith, internal organization, or ecclesiastical rule, custom, or law. The allegations that were dismissed were that the church failed to adequately evaluate the mental fitness of Herbert to serve as a Catholic priest, and the allegation that plaintiff suffered emotional and spiritual loss, substantially affecting his belief in his faith. The court held that plaintiff's other claims, such as the failure to adequately train and supervise Herbert, can be decided by applying neutral principles of law.

Organization Announces Campaign To Promote Graduation Prayer

Liberty Counsel this week announced its annual "Friend or Foe Graduation Prayer Campaign," saying in part:

Liberty Counsel will educate and, if necessary, litigate to ensure that prayer and religious views are not suppressed during graduation ceremonies across the Nation.

Liberty Counsel is making available red prayer wristbands which students can wear as a reminder to pray at graduation and all throughout the school year.... Students have the constitutional right to wear religious jewelry and to pray during noninstructional times while at school. Liberty Counsel also has a free legal memo on graduation prayer.

Juror Removed For Religious Statement Made In Deliberations

According to FirstCoast News, in a Jacksonville, Florida federal district courtroom earlier this month, a jury found former Congresswoman Corrine Brown  guilty on 18 counts of fraud and corruption. The jury's decision came a day after the judge removed one of the jurors  (referred to as Juror 13) from the panel. The judge took action against Juror 13 after another juror sent the judge a letter complaining about Juror 13's religious remarks. Near the beginning of deliberations, Juror 13 told the others that the Holy Spirit had told him Congresswoman Brown was not guilty on all charges. The full transcript of the judge's questioning Juror 13 before deciding to remove him from the jury makes interesting reading.

Court Dismisses California Law Challenge To Chabad's Kapparot Ceremony

In United Poultry Concerns v. Chabad of Irvine, (CD CA, May 12, 2017), a California federal district court dismissed a suit by an animal rights organization claiming that the annual Kapparot ceremony conducted by an Orthodox Jewish organization violates California's Unfair Competition Law.  The UCL provides civil remedies for “any unlawful, unfair or fraudulent business act or practice.” The complaint alleges that the ritual as implemented by Chabad of Irvine violates the state's ban on "intentional and malicious killing of animals" other than for use as food (California Penal Code Sec. 597(a), 599c).  Chabad charges $27 to each person for furnishing and disposing of the chicken used in the pre-Yom Kippur ceremony. (See prior posting.)

In dismissing the lawsuit, the court said:

The Court cannot find, and Plaintiff does not cite a single case in which the acceptance of a donation in connection with the performance of religious ritual has been treated as a “business act” under the UCL. Moreover, the Court finds that Defendant Chabad of Irvine does not participate nor compete as a business in the commercial market by performing a religious atonement ritual that involves donations. For these reasons, the Court finds that Plaintiff fails to state a claim against Chabad of Irvine for a violation of the Unfair Competition Law (B.P.C. § 17200 et seq.)

First Liberty Institute issued a press release announcing the decision.  Jewish Press reported on the decision.

State Department Implements Expanded "Mexico City Policy"

Yesterday the State Department took steps to implement an earlier Memorandum from President Trump that reinstated the "Mexico-City Policy" that bars U.S. foreign aid dollars from going to nongovernmental organizations that offer abortion counseling or  advocate the right to seek abortions in their home countries.(See prior posting).  In a Fact Sheet and a Background Briefing the State Department elaborated on its new plan called "Protecting Life in Global Health Assistance" which expands on the Mexico City Policy as applied in prior Republican administrations.  According to the briefing:

...[G]lobal health assistance includes funding for international health programs, such as those for HIV/AIDS, maternal and child health, malaria, global health security, family planning, and reproductive health. Protecting Life in Global Health Assistance applies to global health assistance to or implemented by foreign NGOs, including those to which a U.S. NGO makes a sub-award with such assistance funds.

Global health assistance to national or local governments, public international organizations, and other similar multilateral entities is not subject to this policy. Also excluded is humanitarian assistance, including State Department migration and refugee assistance activities, USAID disaster and humanitarian relief activities, and U.S. Department of Defense disaster and humanitarian relief. At any time, in consultation with the Secretary of Health and Human Services, the Secretary of State may authorize additional case-by-case exemptions to the policy....

Protecting Life in Global Health Assistance applies to approximately $8.8 billion in funds appropriated to the Department of State, the U.S. Agency for International Development, and the Department of Defense. Previously, the policy applied only to family planning assistance provided by USAID and the Department of State.

.... Departments and agencies will reprogram to other organizations any funding they would have awarded to NGOs that do not agree to the terms of Protecting Life in Global Health Assistance.

New York Times reports on the policy expansion. Liberty Counsel issued a press release with additional information on the new policy.

9th Circuit Hears Oral Arguments On Second Trump Travel Ban Executive Order

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in State of Hawaii v. Trump, (Docket No. 17-15589).  In the case, a Hawaii federal district court issued a nationwide temporary injunction against enforcement of key portions of  President Trump's second "travel ban" Executive Order. (See prior posting.) As reported by the New York Times, at issue in the arguments are whether the Executive Order can be considered a "Muslim ban" that violates the Establishment Clause.

N.J. Governor Conditionally Vetoes Total Ban On Marriage of Minors, Citing Religious Traditions

New Jersey Governor Chris Christie on May 11 vetoed Assembly Bill 3091 which would have placed an absolute ban on issuing of marriage or civil union licenses to persons under 18 years of age. His Conditional Veto message (full text) sent the bill back with recommendations for reconsideration.  the message said in part:

New Jersey law currently permits the issuance of these licenses to 16 and 17 year-olds with parental consent and to persons below age 16 with both parental consent and judicial approval....

I am recommending that this bill be amended so that a marriage license no longer be issued for a person under the age of 16.

I also would require judicial approval for the issuance of a marriage license to persons who are age 16 and 17....

An exclusion without exceptions would violate the cultures and traditions of some communities in New Jersey based on religious traditions. Judicial oversight would permit consideration of these factors in the 16 and 17 year old timeframe.

According to Politico, "almost 3,500 marriages involving at least one partner under 18 took place in New Jersey from 1995 to 2012. Of those, 163 involved at least one spouse 15 or younger. Most were religious arranged marriages."

Egyptian Muslim Cleric Accused of "Contempt of Religion"

In Egypt last Thursday, members of the Egyptian Parliament filed a lawsuit against Muslim cleric and former deputy minster in the Endowments Ministry, Salem Abdel Galil.  According to Egypt Daily News, the suit, and another one filed by different complainants, accuse Galil of contempt of religion and threatening national unity because of statements he made on May 3 during his television show "Muslims Ask."  In explaining a verse from the Qur'an, he said that Christians and Jews follow corrupt religions and are non-believers.  In a statement on his Facebook page, Galil apologized for "hurting Christians’ feelings," but said he would never apologize for his religion. Al-Mehwar TV has canceled Galil's contract, and Minister of Endowments Mokhtar Gomaa said that Galil would not be allowed to lead Friday prayers unless he retracted his comments.

Court Rejects Challenge To State's Use of Religiously Affiliated Child Placement Agency

In In re R.M., (KS Ct. App., May 12, 2017), the Kansas Court of Appeals rejected an argument that the state violated the Establishment Clause by contracting with  Saint Francis Community Services, an Episcopalian organization, to provide childcare services on behalf of the state.  The issue was raised by a mother who was contesting the state's termination of her parental rights to her two children.  The court said in part:

Mother has shown no evidence that Saint Francis encouraged, let alone coerced, her children into participating in religious activities or conditioned their receipt of any benefits on such participation. None of the case plans or court orders contains any reference to religious acts or beliefs or requires Mother or her children to do anything of a religious nature. Mother has not shown anything of a religious nature in the homes her children have been placed in.

Recent Articles of Interest

From SSRN:

• Madalyn Doucet Vicry, That Kind of Girl: Effects of Homeschooling on the Sexual Health of Women and Girls, (Georgetown Journal of Gender and the Law, Vol. 18, No. 103, 2017).
• Wojciech Sadurski, Judicial Review and Public Reason, (Comparative Judicial Review, Rosalind Dixon, Erin F. Delaney, eds, Edward Elgar, UK, 2017, Forthcoming).
• Caroline Mala Corbin, A Free Speech Tale of Two County Clerk Refusals, (Ohio State Law Journal, Forthcoming).
• Elaine Rene Elizabeth Panter, Tanya Primiani, Tazeen Hasan & Eduardo Calderon Pontaza, Antidiscrimination Law and Shared Prosperity: An Analysis of the Legal Framework of Six Economies and Their Impact on the Equality of Opportunities of Ethnic, Religious, and Sexual Minorities, (World Bank Policy Research Working Paper No. 7992 (March 3, 2017)).
• Robin Bradley Kar, Transformational Marriage: How to End the Culture Wars Over Same-Sex Marriage, (The Contested Place of Religion in Family Life (Cambridge University Press 2017)).
• Robin Elliot & Michael Elliot, 'Striking the Right Balance: Rethinking the Contest between Freedom of Religion and Equality Rights in Trinity Western University v. The Law Society of British Columbia', (Forthcoming in the University of British Columbia Law Review, (2017) Volume 50:3).
• Clifford Rosky, Still Not Equal: A Report from the Red States, (After Marriage Equality: The Future of LGBT Rights pgs. 73-101 (2016)).

SSRN (Islamic Law)

• Hae Won Bang, Production of Islamic Knowledge in the European Diaspora: A Case Study of Digital Texts from a British Muslim Halal Certifier, (May 30, 2016).
• Mmaphuti David Tuba, Lodhi 5 Properties Investments CC v Firstrand Bank Limited [2015] 3 All SA 32 (SCA) and the Enforcement of Islamic Banking Law in South Africa ,(Potchefstroom Electronic Law Journal, Vol. 20, 2017).

From SmartCILP:

• Symposium: Law and Religion in an Increasingly Polarized America. Articles by Kathleen A. Brady, Marc O. DeGirolami, Kent Greenawalt, B. Jesse Hill, Andrew Koppelman, Ronald J. Krotoszynski, Jr., Ira C. Lupu, Robert W. Tuttle, James M. Oleske, Jr. and Robin Fretwell Wilson. 20 Lewis & Clark Law Review 1093-1458 (2017).
• Allan W. Vestal, Regarding Oaths of Office, 37 Pace Law Review 292-325 (2016).

New Tennessee Law Requires Religious Holy Day Accommodation For School Athletics

On May 2 (bill history), Tennessee Governor Bill Haslam signed Senate Bill 1012, as amended, which gives students' religious observances priority over athletic schedules.  The new law provides:

A local education agency, local school board, school, educator, or employee or the employee's representative may not require a student to attend a school athletic event, or event related to participation on a school athletic team, if the event is on an official school holiday, observed day of worship, or religious holiday. The parent or legal guardian of a student participating in a school athletic event may provide written notice that the student will not be in attendance to the coach or administrator of the athletic event at least three (3) full school days prior to the event. Prior written notice to the coach or administrator of the school athletic event may not be required if the absence is due to an unforeseen emergency.

In comments published by Forbes after the bill's enactment, the sponsor of the parallel measure in the state House of Representatives appears to understate the mandatory excusal requirement of the law, saying:

What we're trying to do is bring awareness and realization to athletic programs that the school and administration have leeway when it comes to answering the needs of families. It provides a platform for discussion to take place.

Recent Prisoner Free Exercise Cases

In Jones v. Johnson, 2017 U.S. Dist. LEXIS 69634 (D CT, May 8, 2017), a Connecticut federal district court dismissed a Muslim inmate's complaint that he was denied congregate religious services while confined in the Administrative Segregation Program.

In Greenhill v. Clarke, 2017 U.S. Dist. LEXIS 70937 (WD VA, May 10, 2017), a Virginia federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 71291, March 20, 2017) and denied a preliminary injunction to a Muslim inmate who complained that he was precluded from observing weekly Jum'ah services because inmates in segregation can watch a tape of such services only if they purchase their own television set.

In Kitchen v. Leach, 2017 U.S. Dist. LEXIS 71144 (WD MI, May 10, 2017), a Michigan federal district court dismissed a Muslim inmate's claim that a vegan diet imposes a substantial burden on his religious beliefs and his complaint that his meal trays were marked kosher.  However it allowed him to move ahead with his claim that the vegan menu causes him gastrointestinal distress that interferes with his religious practices.

In Bishop v. Mohave Mental Health Inc., 2017 U.S. Dist. LEXIS 71368 (D AZ, May 10, 2017), an Arizona federal magistrate judge dismissed with leave to amend plaintiff complained that he was not allowed to attend religious services on March 24, 2013, without prior permission from his probation officer.

In Griffin v. Lopez, 2017 U.S. Dist. LEXIS 72315 (ED CA, May 11, 2017), a California federal magistrate judge dismissed with leave to amend a Muslim inmate's complaint that he was denied religious meals on one day during Ramadan, and that defendant has a custom of denying Ramadan meals.

Fragmented Decision Upholds Business' Refusal to Print LGBT Pride T-Shirts

In a 2-1 decision yesterday, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused to print T-shirts for a local LGBT Pride Festival. At issue in Lexington Fayette Urban County Human Rights Commission v. Hands On Originals, Inc., (KY Ct. App., May 12, 2017), was the policy of a business which prints customized t-shirts, mugs, pens, and other accessories "to refuse any order that would endorse positions that conflict with the convictions of the ownership."

Chief Judge Kramer, writing the court's opinion, held that the business, Hands On Originals (HOO), never refused goods or services to a customer on the basis the customer's sexual orientation or gender identity because the order was placed by an organization which has no sexual orientation of gender identity. Neither did HOO deny goods or services because the customer was engaging in conduct engaged in exclusively or predominantly by a protected class of people. Judge Kramer explained, saying in part:

The acts of homosexual intercourse and same-sex marriage are conduct engaged in exclusively or predominantly by persons who are homosexual. But anyone—regardless of religion, sexual orientation, race, gender, age, or corporate status—may espouse the belief that people of varying sexual orientations have as much claim to unqualified social acceptance as heterosexuals. Indeed, the posture of the case before us underscores that very point: this case was initiated and promoted by Aaron Baker, a non-transgendered man in a married, heterosexual relationship who nevertheless functioned at all relevant times as the President of the GLSO.

Judge Lambert concurred only in the result and filed a separate opinion contending that HOO is protected in its conduct because of the Kentucky Religious Freedom Restoration Statute.  She said in part:

HOO refused to print the shirts because the HOO owners believe the lifestyle choices promoted by GSLO conflict with their Christian values.

Judge Taylor dissented, saying in part:

The majority takes the position that the conduct of HOO in censoring the publication of the desired speech sought by GLSO does not violate the Fairness Ordinance. Effectively, that would mean that the ordinance protects gays or lesbians only to the extent they do not publicly display their same gender sexual orientation. This result would be totally contrary to legislative intent and undermine the legislative policy of LFUCG since the ordinance logically must protect against discriminatory conduct that is inextricably tied to sexual orientation or gender identity. Otherwise, the ordinance would have limited or no force or effect.

 Lexington Herald Leader reports on the decision.

Suit Over War Memorial Depicting Cross Is Settled

The American Humanist Association announced on Thursday that a settlement has been reached in  American Humanist Association v. Borough of Roselle Park.  In the case, plaintiffs brought an Establishment Clause challenge to a war memorial on public property depicting a soldier kneeling over a grave marked by a Christian cross. (See prior posting.) The city took down the memorial after the lawsuit was filed.  Under the settlement agreement, the city agreed it will not erect the same display or a similar one in the future.

Pence At Conference On Persecution of Christians Says ISIS Is Guilty of Genocide

Vice President Mike Pence delivered a nearly 25-minute speech yesterday in Washington, D.C. at the first-ever World Congress of Persecuted Christians. (Full text of remarks). (Press release from Liberty Counsel.) The event is sponsored by the Billy Graham Evangelistic Association.  At one point in his prepared remarks, he said:

I believe ISIS is guilty of nothing short of genocide against people of the Christian faith, and it is time the world called it by name.

It is not clear whether he was announcing a formal labeling of ISIS activities as "genocide" which would then trigger obligations under the 1948 Convention on the Prevention and Punishment of Genocide.

Here are additional excerpts from the Vice President's speech:

I’m here on behalf of the President as a tangible sign of his commitment to defending Christians and, frankly, all who suffer for their beliefs across the wider world.  I stand here today as a testament to President Trump’s tangible commitment to reaffirm America’s role as a beacon of hope and light and liberty to inspire the world....

The reality is, across the wider world, the Christian faith is under siege.  Throughout the world, no people of faith today face greater hostility or hatred than the followers of Christ.  In more than 100 countries spread to every corner of the globe –- from Iran to Eritrea, Nigeria to North Korea –- over 215 million Christians confront intimidation, imprisonment, forced conversion, abuse, assault, or worse, for holding to the truths of the Gospel.  And nowhere is this onslaught against our faith more evident than in the very ancient land where Christianity was born....

In Iraq, at the hands of extremists, we’ve actually seen monasteries demolished, priests and monks beheaded, and the two-millennia-old Christian tradition in Mosul virtually extinguished overnight.  In Syria, we see ancient communities burned to the ground.  We see believers tortured for confessing Christ, and women and children sold into the most terrible form of human slavery.

Know today with assurance that President Trump sees these crimes for what they are: vile acts of persecution animated by hatred -- hatred for the Gospel of Christ.  And so too does the President know those who perpetrate these crimes.  They are them the embodiment of evil in our time.  He calls them by name -- radical Islamic terrorists....

But to be clear, adherents of other religions across the world have not been spared.  And we will speak for them and pray for them as well.  For as history attests, persecution of one faith is ultimately the persecution of all faiths.

Arson Awareness Week Focuses On Arson Prevention At Houses of Worship

The U.S. Fire Administration has designated May 7-13, 2017 as National Arson Awareness Week, and has made the theme for this year "Arson Prevention at Houses of Worship."

4th Circuit Hears Oral Arguments On North Carolina's Magistrate Recusal Law

The U.S. 4th Circuit Court of Appeals on Wednesday heard oral argument (audio of full arguments) in Ansley v. Warren (Docket No. 16-2082). In the case, a North Carolina federal district court dismissed for lack of standing an Establishment Clause challenge to North Carolina's S.B. 2 that allows magistrates who have religious objections to performing same-sex marriages to recuse themselves from performing any marriages. (See prior posting.)  AP reports on the oral arguments.