Monday, March 27, 2017

5th Circuit Upholds Student Invocations At School Board Meetings

In American Humanist Association v. McCarty, (5th Cir., March 20, 2017), the U.S. 5th Circuit Court of Appeals upheld a school board's practice of opening its meetings with presentations from students, which often involves a prayer.  As described by the court:
Since 1997, two students have opened each session—with one leading the Pledge of Allegiance and the Texas pledge and the other delivering some sort of statement, which can include an invocation. Those student presenters, typically either elementary- or middle-school students, are given one minute. [School board] officials do not direct them on what to say but tell them to make sure their statements are relevant to school-board meetings and not obscene or otherwise inappropriate. At a number of meetings, the student speakers have presented poems or read secular statements. But ... they are usually an invocation in the form of a prayer, with speakers frequently referencing “Jesus” or “Christ.”
Upholding the practice, the court said that the  in part:
The key question ... is whether this case is essentially more a legislative-prayer case or a school-prayer matter....We agree with the district court that “a school board is more like a legislature than a school classroom or event.” The BISD board is a deliberative body, charged with overseeing the district’s public schools, adopting budgets, collecting taxes, conducting elections, issuing bonds, and other tasks that are undeniably legislative....
In a press release, the American Humanist Association indicates that it will file a petition to seek an en banc rehearing in the case.

Monday, March 20, 2017

Religion Clause To Take A Publication Break

Dear Readers:

Religion Clause will be going on a publication break until approximately the end of March.  Check back for my resumption of postings at that time.

Howard Friedman

Sunday, March 19, 2017

Recent Articles of Interest

From SSRN:
From elsewhere:

Saturday, March 18, 2017

Ministerial Exception Does Not Apply To Exercise Science Teacher At Christian University

In Richardson v. Northwest Christian University, (D OR, March 16, 2017), an unmarried professor of exercise science at a Christian university sued for discrimination after she was fired because she became pregnant out of wedlock and refused to either marry her child's father or stop living with him.  The school contended that the professor's action were inconsistent with its policy that faculty are to live their lives in conformity with Biblical Christianity.  The court held that the "ministerial exception" doctrine does not require it to dismiss the lawsuit, saying in part:
[Plaintiff] was expected to integrate her Christianity into her teaching and demonstrate a maturing Christian faith. But any religious function was wholly secondary to her secular role: she was not tasked with performing any religious instruction and she was charged with no religious duties such as taking students to chapel or leading them in prayer. If plaintiff was a minister, it is hard to see how any teacher at a religious school would fall outside the exception.
The court granted plaintiff summary judgment on her marital status discrimination claim under Oregon law. It allowed her to move to trial on her claims of pregnancy discrimination and breach of contract.

Friday, March 17, 2017

Another Court Bars Enforcement of Trump's Second Travel Ban

As reported by Bloomberg Politics, yesterday a Maryland federal district court became the second court to bar enforcement of part of President Trump's second "travel ban" Executive Order. In International Refugee Assistance Project v. Trump, (D MD, March 16, 2017), the court issued a nationwide preliminary injunction barring enforcement of Section 2(c) of the Second Executive Order. That section imposes a 90-day suspension on entry into the country of nationals of Iran, Libya, Somalia, Sudan, Syria, and Yemen.  The court said in part:
The Second Executive Order does not explain specifically why this extraordinary, unprecedented action is the necessary response to the existing risks. But while the travel ban bears no resemblance to any response to a national security risk in recent history, it bears a clear resemblance to the precise action that President Trump described as effectuating his Muslim ban. Thus, it is more likely that the primary purpose of the travel ban was grounded in religion, and even if the Second Executive Order has a national security purpose, it is likely that its primary purpose remains the effectuation of the proposed Muslim ban. Accordingly, there is a likelihood that the travel ban violates the Establishment Clause.

Recent Prisoner Free Exercise Cases

In Givens v. Vaughn, 2017 U.S. Dist. LEXIS 31366 (SD IL, March 6, 2017), an Illinois federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 31374, Feb. 6, 2017) and dismissed a complaint by a Hebrew Israelite inmate over the method of preparing kosher meals, refusal of separate Hebrew Israelite Sabbath services, and inability to celebrate certain feasts.

In Jones-Bey v. Jefferson County Government, 2017 U.S. Dist. LEXIS 31827 (WD KY, March 6, 2017), a Kentucky federal district court allowed a recently-released inmate to move ahead with his damage action for denying him permission to attend Islamic Services and denying him Halal meals.

In Munt v. Minnesota Department of Corrections, 2017 U.S. Dist. LEXIS 32235 (D MN, March 6, 2017), a Minnesota federal district court ordered defendants to file a supplemental affidavit responding to a Christian inmate's complaint that the lack of privacy in prison facilities (showers, toilets, etc.) violates his religious belief against exposing himself.

In Barrera-Avila v. Watts, 2017 U.S. Dist. LEXIS 33116 (SD GA, March 8, 2017), a Georgia federal magistrate judge recommended dismissing an inmate's complaint regarding interference with the practice of his Santeria religion.

In Hoke v. Lyle, 2017 U.S. Dist. LEXIS 32445 (SD GA, March 7, 2017), a Georgia federal district court adopted a magistrate's recommendation and dismissed an inmate's complaint over policies that resulted in his not receiving his packages containing a study Bible and bible study lessons.

Thursday, March 16, 2017

5 Judges In 9th Circuit Would Uphold Trump's First Travel Ban

Last month, a 3-judge panel of the U.S. 9th Circuit Court of Appeals refused to stay the Washington federal district court's temporary restraining order against enforcement of President Trump's first "travel ban" Executive Order. (See prior posting.)  On March 8, after the President issued a narrower and more focused new Executive Order, a 3-judge panel of the 9th Circuit granted the government's unopposed motion to dismiss its underlying appeal of the district court's decision, leaving the case pending at the district court level. A judge of the 9th Circuit then called for a vote on en banc reconsideration of the order to dismiss in order to vacate the panel's original opinion upholding the district court's stay. In State of Washington v. Trump, (9th Cir., March 15, 2017), reconsideration failed to receive a majority vote.  However five judges (Judges Bybee, Kozinski, Callahan, Bea, and Ikuta) filed a dissenting opinion, criticizing the panel's original rationale for upholding the stay.  The dissenters focused on the Supreme Court's decision in Kleindienst v. Mandel (1972) relating to the deference which courts should give to executive action affecting aliens who are outside the U.S.  CNN points out that the five dissenters were all appointed by Republican presidents.

Lynn to Retire As Head of Americans United

In a press release issued yesterday. Americans United for Separation of Church and State announced that its long-time executive director Barry W. Lynn will retire at the end of 2017.  Lynn has served as the head of AU for 25 years.  In a letter to AU members and supporters, Lynn said that a search for his successor is already under way.

Appeals Court OK's Court-Ordered Meeting of Church Members

In Hawkins v. St. John Missionary Baptist Church of Bakersfield, California, (CA App., March 15, 2017), a California state appellate court upheld a trial court's determination that it could use neutral principles of state non-profit corporation law to order a church's Board of Deacons to call a meeting of members to vote on whether to remove the church's pastor. The appeals court said in part:
[T]he court may apply neutral principles of law based on the church’s own constitution, bylaws and rules, and relevant California statutes.... Thus, a court may determine whether an election in which a pastor was removed was properly conducted according to the church’s bylaws, rules and regulations. In other words, the court may assist the church in acting within its proper sphere under its own rules and regulations to protect civil and property rights.
At the meeting, overseen by a court-appointed referee, those favoring removal of the pastor prevailed by 1 vote. The appeals court concluded that the referee had wrongly excluded the votes of 3 members, and remanded the case for the trial court to redetermine the election results after counting those votes.

Wednesday, March 15, 2017

Hawaii Federal Court Bars Enforcement of Key Provisions of Second Travel Ban

Today a Hawaii federal district court issued a nationwide temporary restraining order prohibiting enforcement of Section 2  (90 day ban on entry into U.S. of nationals of six Muslim-majority nations) and Section 6 (120 day suspension of entry of refugees) of President Trump's second "travel ban" Executive Order.  The Executive Order was scheduled to go into effect tomorrow. (See prior posting.)  The lawsuit was brought by the state of Hawaii and by the Imam of the Muslim Association of Hawai‘i.  In State of Hawaii v. Trump, (D HI, March 15, 2017), a Hawaii federal district court concluded that:
Because a reasonable, objective observer—enlightened by the specific historical context, contemporaneous public statements, and specific sequence of events leading to its issuance—would conclude that the Executive Order was issued with a purpose to disfavor a particular religion, in spite of its stated, religiously-neutral purpose, the Court finds that Plaintiffs, and Dr. Elshikh in particular, are likely to succeed on the merits of their Establishment Clause claim.
The court explained its conclusion in part as follows:
The record before this Court is unique. It includes significant and unrebutted evidence of religious animus driving the promulgation of the Executive Order and its related predecessor.... The Government appropriately cautions that, in determining purpose, courts should not look into the “veiled psyche” and “secret motives” of government decisionmakers and may not undertake a “judicial psychoanalysis of a drafter’s heart of hearts.”... The Government need not fear. The remarkable facts at issue here require no such impermissible inquiry.
According to Hawaii News Now,  President Trump reacted to the ruling during a rally in Nashville, saying in part:
This is, in the opinion of many, an unprecedented judicial overreach. This ruling makes us look weak, which by the way, we no longer are, believe me.  We're going to fight this terrible ruling. We're going to fight this case as far as it needs to go, including all the way up to the Supreme Court.
Washington Post reports on today's decision. Josh Blackman's Blog has a lengthy post reviewing cases on the application of the Establishment Clause to immigration law matters and reaching a different conclusion than did the Hawaii court about the Executive Order's constitutionality..

NYC Arrangement On Controversial Circumcision Method Apparently Is Not Working

In September 2015, the New York City Board of Health repealed its largely unenforced regulations that required parental consent forms be signed in cases of ritual circumcision using the direct oral suction technique (metzitzah b'peh). The original regulations were adopted to prevent passage of the herpes simplex virus to infants.  In exchange for the repeal, the Orthodox Jewish community was to cooperate in banning mohels  who are found to have infected an infant. (See prior posting.) The New York Post reported Monday that since the the 2015 arrangement by the DeBlasio administration, there have been six case of herpes.  However only two of the six mohels involved have been identified, and those two were not removed, but merely advised not to use the controversial direct oral suction method.  Mayor DeBlasio says the city is reviewing the situation.

City's Settlement of Mosque Litigation Challenged By New Lawsuit

As previously reported, last month the city of Sterling Heights, Michigan reached settlements in two related lawsuits challenging the city's denial of a land use application filed by an Islamic group that wants to construct a mosque on five adjoining lots in the city. Now several individuals have filed a federal lawsuit challenging the settlement.  The complaint (full text) in Youkhana v. City of Sterling Heights, (ED MI, filed 3/13/2017), seeks a declaration that the settlement is invalid and unenforceable. It contends that the city violated plaintiffs' 1st, 4th and 14th Amendment rights, including the Establishment Clause, in the procedures used at the City Council meeting considering the settlement.  It also claims a violation of the Michigan Open Meetings Act. the complaint describes the procedures used at the meeting as follows:
The City ... (1) adopted an ad hoc rule that limited speakers wanting to address the Consent Judgment agenda item to just 2 minutes, thereby severely limiting Plaintiffs’ right to express their views at this public hearing, even though the Mayor allowed other speakers addressing less controversial matters that evening to speak at great length; (2) prohibited certain views based on their content and viewpoint (i.e., no one was permitted to mention religion or even hint at it when discussing the Consent Judgment matter, and certainly no one was permitted to make any statement that might be deemed critical of Islam); (3) directed the City police to seize individuals and escort them out of the meeting if the Mayor opposed what they were saying about the Consent Judgment matter; and (4) ordered the citizens out of the public meeting when it came time to actually vote on the Consent Judgment.
Detroit News reports on the lawsuit.