President Holds High Holiday Teleconference With Jewish Leaders, Absent Many Who Boycotted the Annual Event

As reported by the Washington Post, today President Trump (along with Jared Kushner) participated in the traditional annual telephone call with Jewish leaders in advance of Rosh Hashanah. This year, however, leaders of the Reform, Conservative and Reconstructionist denominations boycotted the call in protest of Trump's remarks last month after Charlottesville.  In a statement, these leader charged that "The president’s words have given succor to those who advocate anti-Semitism, racism, and xenophobia." (Background.)  The White House released a transcript of remarks by the President and by Kushner at today's teleconference.  There the President said in part:

I am grateful for the history, culture, and values the Jewish people have given to civilization. We forcefully condemn those who seek to incite anti-Semitism, or to spread any form of slander and hate -- and I will ensure we protect Jewish communities, and all communities, that face threats to their safety.

Louisiana AG Opinion Says ABA Model Rule Barring Discrimination Is Unconstitutional

The Louisiana State Bar Association is considering adopting an amendment to its Rules of Professional Conduct that would define professional misconduct as including:

conduct in connection with the practice of law that the lawyer knows or reasonably should know involves discrimination prohibited by law because of race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability.  This rule does not prohibit legitimate advocacy when race, color, religion, age, gender, sexual orientation, national origin, marital status, or disability are issues,nor does it limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16.

This is a narrower version of ABA Model Rule 8.4(g) which the ABA House of Delegates adopted in 2016.  Last week, the Louisiana Attorney General's Office issued Attorney General's Opinion 17-0114 which concludes that the ABA version of the Model Rule is likely unconstitutional under the First and Fourteenth Amendments, and that while Louisiana's proposed version seeks to avoid many of the constitutional problems, it still suffers from some of the same vagueness and overbreadth issues as does the ABA rule.

In addition to finding that the ABA Model Rule is overbroad and vague, the Opinion also concluded that it violates associational and religious liberty protections, saying in part:

Lawyers participate in a wide variety of associations that engage in expressive conduct which could run afoul of ABA Model Rule 8.4(g), including faith-based legal organizations and activist organizations that promote a specific political or social platform....

ABA Model Rule 8.4(g) could also result in lawyers being punished for practicing their religion.  The United States Supreme Court specifically noted in Obergefell v. Hodges that "those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned."  However this type of advocacy appears to be prohibited by ABA Model Rule 8.4(g).... Under Rule 8.4(g), a lawyer who acts as a legal advisor on the board of their church would be engaging in professional misconduct if they participated in a march against same-sex marriage or taught a class at their religious institution against divorce....

AP reports on the Attorney General's Opinion.

9th Circuit: Facebook Is Immune From Liability For Blocking Access To Sikh Group's Page

In Sikhs for Justice, Inc. v. Facebook, Inc., (9th Cir., Sept. 13, 2017), the U.S. 9th Circuit Court of Appeals affirmed a California federal district court's dismissal of a religious discrimination claim against Facebook. (See prior posting.) In the lawsuit, brought by a Sikh human rights group, plaintiffs contend that Facebook violated the public accommodation provisions of the 1964 Civil Rights Act when it blocked access to SJF's Facebook page in India.  The suit contends that Facebook collaborated with the government of India in retaliating against SFJ for its online campaign complaining about the treatment of Sikhs and promoting an independent Sikh state.  The 9th Circuit held that Facebook is immune from civil liability under Section 230 of the Communications Decency Act, and that Title II of the 1964 Civil Rights Act does not provide an exception to this immunity.

Former USCIRF Commissioner Cromartie Dies

A press release yesterday from the U.S. Commission on International Religious Freedom reported that former USCIRF Commissioner Michael Cromartie died on Aug. 28. The release said in part:

Mr. Cromartie was a prolific writer who edited more than a dozen books on religion and politics.  He also served as a primary source for the media as reporters sought to understand the intersection of politics and religion.  He has been described as being part of a wave of evangelical Christians who believed that their faith required an active engagement in both politics and public life.

The New York Times (Sept. 1) carried his Obituary.

Animal Rights Group Sues Police Over Lax Enforcement Against Kapparot Ritual

As the Jewish High Holidays approach, animal rights groups in California are again (see prior posting) attempting to stop the practice of using chickens for the pre-Yom Kippur ritual of kapparot. The complaint (full text) in Animal Protection and Rescue League v. City of Los Angeles, (CD CA, filed 9/12/2017), contends that the the Los Angeles and Irvine police departments are violating the Establishment Clause by "actively protecting, encouraging and ratifying illegal conduct solely because it is motivated by religious belief." Plaintiffs say they want to make citizens' arrests of those who kill and discard chickens in their presence, but that police are deployed in large numbers to prevent such arrests. They say that under California Penal Code Secs. 597(a) and 599c, all intentional killing of animals, except when used for food, are outlawed. Orange County Register reports on the lawsuit. [Thanks to Steven H. Sholk for the lead.]

European Court Affirms Jurisdiction of Ecclesiastical Courts

In Nagy v. Hungary, (ECHR, Sept. 14, 2017), the Grand Chamber of the European Court of Human Rights, by a vote of 10-7, upheld the exclusive jurisdiction of ecclesiastical courts over contractual disputes that are matters of ecclesiastical law.  In the case, a pastor in the Reformed Church of Hungary was suspended, and ultimately removed, from his position through church disciplinary proceedings because of statements he had made in a local newspaper.  He then sued in civil courts for compensation that he says he was owed for the periods prior to his termination.  When lower courts dismissed his claims, he argued that this violated his right under Article 6(1) of the European Convention on Human Rights to a fair trial by an independent and impartial tribunal established by law in determining his civil rights.  The European Court's majority opinion held in part:

... [A]pplicant’s claim ... concerned an assertion that a pecuniary claim stemming from his ecclesiastical service, governed by ecclesiastical law, was actually to be regarded as falling under the civil law.... Given the overall legal and jurisprudential framework existing in Hungary ..., the domestic courts’ conclusion that the applicant’s pastoral service had been governed by ecclesiastical law and their decision to discontinue the proceedings cannot be deemed arbitrary or manifestly unreasonable.... [This] Court cannot but conclude that the applicant had no “right” which could be said, at least on arguable grounds, to be recognised under domestic law. To conclude otherwise would result in the creation by the Court, by way of interpretation of Article 6 § 1, of a substantive right which had no legal basis in the respondent State.

Four separate dissenting opinions were also filed. ADF issued a press release regarding the decision.

6th Circuit Rejects Law Prof's Claim That $666 Raise Was Retaliatory As "Mark of the Beast"

In Lifter v. Cleveland State University, (6th Cir., Sept. 12, 2017), the U.S. 6th Circuit Court of Appeals affirmed an Ohio federal district court's dismissal of a lawsuit by two former Cleveland State University Law School professors (husband and wife) who claim that the dean had retaliated against them because of the husband's activity in unionizing the faculty.  Plaintiff Sheldon Gelman argued that part of the retaliation was awarding him a raise of only $666 for the year.  He contended that not only did he deserve more, but that the dean chose the $666 figure as an intentional invocation of the biblical "mark of the beast."  The court dismissed Gelman's claim, saying:

Construing the facts in the light most favorable to Gelman, he cannot show that his union organizing activities were a substantial or motivating factor in these alleged injuries.

Law.com reports on the decision.

Santa Fe Diocese Releases List of Priests Found Guilty of Sex Abuse

On Tuesday, the Catholic Archdiocese of Santa Fe released the names of 74 priests, deacons and brothers who have been found guilty of sexually abusing a child, either by the Church (canon law), the State (criminal law), or both. The list also includes those who were laicized after being accused of sexually abusing a minor, and those publicly accused where criminal proceedings were not completed (often because of death).  AP, reporting on the release, says that it comes after decades of pressure from victims and their families.

Congress Sends Joint Resolution Condemning Hate Groups To President

Yesterday Congress gave final passage to Senate Joint Resolution 49 (full text) "condemning the violence and domestic terrorist attack that took place during events between August 11 and August 12, 2017, in Charlottesville, Virginia."  The Joint Resolution, that now goes to President Trump for his signature, reads in part:

Congress ... urges— ... the President and his administration to—

(i) speak out against hate groups that espouse racism, extremism, xenophobia, anti-Semitism, and White supremacy; and (ii) use all resources available to the President and the President’s Cabinet to address the growing prevalence of those hate groups in the United States; and 

[urges] the Attorney General to work with (i) the Secretary of Homeland Security to investigate thoroughly all acts of violence, intimidation, and domestic terrorism by White supremacists, White nationalists, neo-Nazis, the Ku Klux Klan, and associated groups in order to determine if any criminal laws have been violated and to prevent those groups from fomenting and facilitating additional violence....

Politico reporting on the action by Congress adds:

Though resolutions are often passed to offer the sense of the House or Senate on various issues, they rarely head to the president for consideration. But backers of this measure structured it as a "joint resolution," a move ensuring that passage would require Trump to weigh in on an issue that has dogged his presidency for weeks.

Malaysian Prime Minister Urges Trump To Support Moderate Muslim Regimes

Yesterday President Trump welcomed Malaysian Prime Minister Najib Abdul Razak to the White House.  Both leaders spoke briefly (full text of remarks) in the Cabinet Room before their private meeting. Among other things, Razak urged Trump to support progressive Muslim regimes, saying in part:

Daesh, IS, Al-Qaeda, Abu Sayyaf  ... are the enemy of the United States, they are also the enemy of Malaysia, and we will do our part to make sure that our part of the world is safe.

We will also contribute in terms of the ideological warfare because you need to win the hearts and minds.  And the key to it is to support moderate and progressive Muslim regimes and governments around the world, because that is the true face of Islam; that is the authentic face of Islam.  The more you align with progressive and moderate regimes, the better it would be in terms of winning the hearts and minds of the Muslim world.

President Trump responded: "Right".

Israel's High Court Strikes Down 2015 Law On Draft Exemptions For Ultra-Orthodox

Israel's High Court of Justice yesterday struck down a 2015 law that was intended to reverse attempts enacted a year earlier to increase the number of ultra-Orthodox young people who are drafted into the Israel Defense Forces.  As reported by Times of Israel:

Eight justices, led by Chief Justice Miriam Naor, ruled that the current arrangement was increasing the inequality in the “draft burden,” rather than reducing it, which was the law’s stated purpose and the grounds for its constitutionality. That made it an “unconstitutional law,” the justices ruled.

One dissenter, Justice Noam Solberg, argued that the law had not been in effect long enough to determine its effect on the military draft, and therefore no determination could yet be made about its constitutionality.

The Court gave the Knesset one year to come up with a different arrangement.  Ultra-Orthodox members of the Knesset strongly criticized the decision.  For example, Deputy Education Minister Meir Porush of the United Torah Judaism party said:

The High Court of Justice’s judicial activism completely empties Knesset legislation of importance, turning it into a dead letter. Today’s decision just drives another stake into the coffin. The High Court of Justice is eager for the apocalypse.

Jockeying In Travel Ban Litigation Continues In Supreme Court

As previously reported, last week the U.S. 9th Circuit Court of Appeals in State of Hawaii v. Trump affirmed a district court's decision on the scope of President Trump's second travel ban executive order.  The decision essentially found that the executive branch had read an earlier order by the Supreme Court too narrowly both as to the travelers and refugees who could be excluded under the travel ban pending a Supreme Court decision on the merits. In a filing on Sept. 11, the government asked Justice Kennedy, the Circuit Justice for the 9th Circuit, to stay the portion of the 9th Circuit's mandate dealing with refugees who are still covered by the travel ban. The next day, Justice Kennedy issued an order temporarily staying that portion of the 9th Circuit's mandate. Today, the state of Hawaii filed its response, arguing in part:

The Government has returned to this Court, for the third time, to ask that it superintend the application of the injunction in this case. The first time the Government was here ... this Court set forth the legal standard that governs the injunction of Executive Order 13,780 ...: Any foreign national with a “bona fide relationship” with a U.S. entity—that is, a relationship that is “formal, documented, and formed in the ordinary course”—is protected from EO-2’s travel and refugee bans.... The second time, on July 19, 2017, the Court denied the Government’s request to “clarify” that the injunction does not apply to refugees who have received a formal assurance from a refugee resettlement agency, instead directing the Ninth Circuit to resolve the question....

The Ninth Circuit faithfully applied both of those directives. It determined ... that a refugee has a “bona fide” relationship with a resettlement agency that signs a formal, written assurance to provide for her housing, food, and other essentials of life. And the Ninth Circuit rejected the Government’s invitation to treat this Court’s July 19, 2017 stay as the merits decision the Court had declined to issue; instead, it performed the diligent analysis that is expected of an appellate court.

SCOTUSblog reports on developments.

UPDATE: On Sept. 12, the U.S. Supreme Court issued an order (full text) staying the 9th Circuit's mandate as it applies to refugees covered by a formal assurance of placement from a resettlement agency.  Refugees from countries covered by the travel ban whose only connection to the United States is such an assurance of placement will be able to be excluded, at least until the Supreme Court decides on the validity of the travel ban on the merits this term.

Pope Criticizes Trump's Action On DACA

Pope Francis yesterday on his way back to the Vatican from his trip to Colombia was sharply critical of President Trump's recent move to repeal DACA. As reported by Newsweek, the Pope said in part:

The president of the United States presents himself as pro-life, and if he is a good pro-lifer, he understands that family is the cradle of life and its unity must be protected.

India's Chief Justice Tells Authorities To Rein In Cow Protection Vigilantes

According to Reuters, India's Supreme Court last week ordered both the federal and state governments to appoint police officers to stop cow protection groups from taking the law into their own hands. Chief Justice Dipak Misra told governments to take this step after a hearing on three public interest lawsuits. There has been a wave of attacks by Hindu activists on Muslims accused of killing cows or eating beef. Police have processed over three dozen cases in the past two years. Several Indian states impose criminal punishment for slaughtering cows, which are sacred to Hindus.

South African Court Reconciles Marriage Law With Gender Identity Change Statute

Under South African law, marriages may be performed only for heterosexual couples; however civil unions, which create the same legal rights as a marriage, may be performed for either heterosexual or same-sex couples.  South Africa also has a statute which allows transgender individuals to register their gender transition with the government if they have undergone medical or surgical treatment to alter their sexual characteristics. Registration leads to a change in the gender listed on birth certificates and in the population register. In KOS v. Minister of Home Affairs, (S.A. High Ct., Sept. 6, 2017), a South African trial court was faced with the question of how to treat couples who had entered a heterosexual marriage (not a civil union), where subsequently the husband underwent gender transitioning and registered the change in gender identity with the government.

The government argued that in such cases, a gender change should not be able to be registered since it would result in a same-sex marriage, which the law does not recognize. In one of the cases, the government had instead cancelled the couple's marriage record and insisted that they enter a civil union.  The court however, disagreed concluding that the couples must be allowed to register the gender reassignment and remain married.  Refusing to do this, the court said, violates the rights under the South African Constitution to administrative justice and to equality and human dignity. GroundUp reports on the decision.

Recent Articles of Interest

From SSRN:

• D. A. Jeremy Telman, The Free Exercise Clause and Hans Kelsen's Modernist Secularism, (Hans Kelsen in American–Selective Affinities and the Mysteries of Academic Influence (Springer 2016)).
• Michel Rosenfeld, The Conscience Wars in Historical and Philosophical Perspective: The Clash between Religious Absolutes and Democratic Pluralism, (The Conscience Wars: Rethinking the Balance between Religion, Identity, and Equality (Cambridge University Press 2018) (Susanna Mancini & Michel Rosenfeld, eds.)).
• Barry W. Bussey, The Charter Is Not a Blueprint for Moral Conformity, (August 31, 2017).
• Harold Anthony Lloyd, It's a Full Moon Tonight: Speaker Meaning and the Interpretation and Construction of Executive Orders (with Related Reflections on Legislative Speaker Meaning), (September 5, 2017).

From SSRN (Islamic Law);

• Fajri Matahati Muhammadin & Fathimatush Sholihah, Towards a United Islamic Identity in the Making of International Law, (International Journal of Business, Economics, and Law, Vol 9 (5), 2016).
• Fajri Matahati Muhammadin & Thara Kunarti Wahab, Prospects and Challenges of Fiqh al-Jihad in Modern Warfare, (Conference Proceeding of Konferensi Nasional Perbandingan Hukum Indonesia, Universitas Airlangga, Surabaya, Indonesia (2017)).
• Fajri Matahati Muhammadin, Dian Agung Wicaksono,  Ola Anisa Ayutama & Almonika Cindy Fatika Sari, Lashing in Qanun Aceh and the Prohibition Against Torture and Cruel Treatment in the Convention Against Torture, (Conference Proceeding, Aceh Development International Conference, Selangor, Malaysia (2017)).
• Fajri Matahati Muhammadin, Refuting Da’Esh Properly: A Critical Review of the 'Open Letter to Baghdadi', (Journal of International Humanitarian Action, Vol I: 11 (2016)).
• Fajri Matahati Muhammadin, Comparing International Humanitarian Law and Islamic Law on War Captives: Observing ISIS, (Jurnal Dauliyah, Vol 2 (2016)).

From SmartCILP:

• Laurence Winer & Nina J. Crimm, A Perspective on Suitable Latitude for Religious Establishments. 49 Arizona State Law Journal 223-253 (2017).
• Stephane Mechoulan, France Bans the Veil: What French Republicanism Has to Say About It, 35 Boston University International Law Journal 223-284 (2017).
• Rena M. Lindevaldsen, When the Pursuit of Liberty Collides with the Rule of Law, 11 Liberty University Law Review 667-721 (2017).
• James A. Davids, The Role of Worldview in the Judicial Decisions of Justice John Paul Stevens, 11 Liberty University Law Review 723-764 (2017).
• Jonathan Rauch, David C. Baum Memorial Lecture. Gay Rights, Religious Liberty, and Nondiscrimination: Can a Train Wreck be Avoided?, 2017 University of Illinois Law Review 1195-1207.
• Brett H. McDonnell, Between Sin and Redemption: Duty, Purpose, and Regulation in Religious Corporations, 74 Washington & Lee Law Review 1043-1088 (2017).

U.S. Plans To Return Retrieved Jewish Archive To Iraq

According to a JTA report last week, an Iraqi Jewish Archive found by U.S. troops in the basement of the Iraqi secret services headquarters in Baghdad 14 years ago, will be returned to Iraq next year. According to JTA:

The archive was brought to America in 2003 after being salvaged by U.S. troops. It contains tens of thousands of items including books, religious texts, photographs and personal documents. Under an agreement with the government of Iraq, the archive was to be sent back there, but in 2014 the Iraqi ambassador to the U.S. said its stay had been extended. He did not say when the archive was to return....

In the U.S., the artifacts were restored, digitalized and exhibited under the auspices of the National Archives in Washington, D.C.

Jewish legislators and some Jewish groups are pressing the State Department to negotiate a new agreement to keep the collection in the United States or at some other location where it is available to Iraqi Jews-- all but a handful of whom have now left Iraq. [Thanks to Steven H. Sholk for the lead.]

Recent Prisoner Free Exercise Cases

In Nunez v. Wertz, 2017 U.S. Dist. LEXIS 142825 (MD PA, Sept. 1, 2017), a Pennsylvania federal district court permitted a Muslim inmate to move ahead with his complaint that his rights under RLUIPA were violated when he was not permitted to wear his pants with legs rolled up to expose his ankles, except during religious services.

In Riley v. Franke, 2017 U.S. Dist. LEXIS 142971 (ED WI, Sept. 5, 2017), a Wisconsin federal district court dismissed a Muslim inmate's claim that a correctional officer engaged in religious discrimination by dropping his Ramadan meals on the floor.

In Troutman v. Mutayoba, 2017 U.S. Dist. LEXIS 144100 (SD IL, Sept. 6, 2017), an Illinois federal district court allowed an inmate to move ahead with his complaint that authorities refused to provide him with a diet consistent with his Native American religious beliefs.

In Thomas v. Pingotti, 2017 U.S. Dist. LEXIS 144173 (ND NY, Sept. 6, 2017), a New York federal district court allowed a Muslim inmate to move ahead with his claim that during his keeplock confinement he was not allowed to attend Jum'mah services,  or the prayer and festival to break Ramadan.

In Gambino v. Payne, 2017 U.S. Dist. LEXIS 144337 (WD NY, Sept. 1, 2017), a New York federal magistrate judge in a suit brought by an inmate who was in the process of converting to Judaism recommended dismissing his complaint that showers with inadequate privacy violated his free exercise rights, but allowed him to move ahead with his claim against certain defendants that he was purposely served contaminated kosher meals which defendants refused to replace.

In Meza v. California Department of Corrections & Rehabilitation, 2017 U.S. Dist. LEXIS 144415 (ED CA, Sept. 6, 2017), dismissed with leave to amend a Catholic inmate's complaint that he was not allowed to attend a funeral outside of prison because of his alleged gang affiliation.

In Brim v. Donovan, 2017 U.S. Dist. LEXIS 144497 (W WI, Sept. 7, 2017), a Wisconsin federal district court allowed a Muslim inmate to proceed with a complaint that his name was removed from the congregate services pass list for 90 days and his name was not put on the 2015 Ramadan list.

In Allah v. Annucci, 2017 U.S. Dist. LEXIS 145104 (SD NY, Sept. 7, 2017), a New York federal district court allowed an inmate to move ahead with his claims that he was not allowed to attend two Shi'ite holy day events.

DOJ Supports Christian Baker In Amicus Brief Filed With Supreme Court

In an amicus brief filed in the U.S. Supreme Court on Sept. 7 in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the U.S. Department of Justice sided with the Christian bakery owner who refused to design and create a cake for a same-sex wedding.  The brief (full text) argues:

Heightened scrutiny is appropriate at least where a law both compels the creation, for a particular person or entity, of speech or of a product or performance that is inherently communicative, and compels the creator’s participation in a ceremony or other expressive event....

Public accommodations laws compel expression— whether speech or expressive conduct— when they mandate the creation of commissioned goods or the provision of commissioned services that are inherently communicative. That situation might arise if a public accommodations law were applied to painters, photographers, poets, actors, musicians, or other professional artists. Assuming that those artists offer their creative services to the public, a State might attempt to bar a painter who agrees to paint a custom portrait of an opposite-sex couple at their wedding from declining to paint a same-sex couple, or vice versa. Or it might attempt to bar a freelance graphic designer who agrees to design fliers for the upcoming meetings of a Jewish affinity group from declining to do so for a neo-Nazi group or the Westboro Baptist Church. So long as the artist offers to produce expression for a fee, a public accommodations law might purport to restrict her ability to determine which art she will create and for whom....

A public accommodations law exacts a greater First Amendment toll if it also compels participation in a ceremony or other expressive event. That participation may be literal, as in the case of a wedding photographer who attends and is actively involved with the wedding itself. Or that participation may be figurative, as when a person designs and crafts a custom-made wedding ring that performs an important expressive function in the ceremony. Either way, such forced participation intensifies the degree of governmental intrusion.

Some 15 other amicus briefs in support of petitioner have also been filed. Links to them are available on SCOTUSblog's case page.  The due date for amicus briefs in support of respondent has not yet arrived. Christian News reports on the filing of the amicus brief.

No RLUIPA Violations In Denial of Variance For Personal Chapel

In Milosavlejevic v. City of Brier, (WD Wash., Sept. 7, 2017), a Washington federal district court held that the city of Brier, Washington did not violate RLUIPA when it denied petitioner a height variance so he could build a personal Serbian Orthodox chapel with a 40-foot dome on his property.  The court held that the city had not substantially burdened petitioner's free exercise, saying that he has "ready alternative places of worship at his disposal." It also rejected his RLUIPA equal terms and his Sec. 1983 discrimination claims.