Religion Clause

Tuesday, March 14, 2017

Recent Prisoner Free Exercise Cases

In Robinson v. Superintendent Houtzdale SCI, (3d Cir., March 6, 2017), the 3rd Circuit affirmed the dismissal of an inmate's complaint that he was unable to participate in the sex offender’s treatment program because it requires him to "confess" to a therapist, and as a Christian the Bible only permits him to confess to God.

In Adams v. Scott, 2017 U.S. Dist. LEXIS 28966 (CD IL, March 1, 2017), an Illinois federal district court dismissed a complaint by several civilly committed individuals that their nondenominational Christian religious beliefs were not accommodated.

In Carawan v. McLarty, 2017 U.S. Dist. LEXIS 29485 (ED NC, March 2, 2017), a North Carolina federal district court dismissed an inmate's claim that his free exercise rights were infringed when authorities confiscated his mail which contained postage stamps donated to him by Muslim inmates practicing zakat.

In Ayers v. Esgrow, 2017 U.S. Dist. LEXIS 30124 (WD NY, March 1, 2017), a New York federal district court allowed an inmate to move ahead with his complaint that a correctional officer vindictively seized his personal religious property, removed him from his religious clerk position and filed a falsified misbehavior report against him.

In Barros v. Wetzel, 2017 U.S. Dist. LEXIS 30498 (MD PA, March 2, 2017), a Pennsylvania federal magistrate judge recommended allowing a Muslim inmate to move ahead with his complaint that authorities refused to provide him with a medically prescribed therapeutic diet tray during the Ramadan fast.

European Court of Justice Upholds Neutral Employment Rules Barring Religious Dress

The Court of Justice of the European Union today decided two cases raising the question of whether private employers may prohibit Muslim employees from wearing a headscarf at work. In a case from Belgium, Achbita v. G4S Secure Solutions NV, (CJEU, March 14, 2017), the Court's Grand Chamber ruled:

Article 2(2)(a) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the prohibition on wearing an Islamic headscarf, which arises from an internal rule of a private undertaking prohibiting the visible wearing of any political, philosophical or religious sign in the workplace, does not constitute direct discrimination based on religion or belief within the meaning of that directive.

By contrast, such an internal rule of a private undertaking may constitute indirect discrimination within the meaning of Article 2(2)(b) of Directive 2000/78 if it is established that the apparently neutral obligation it imposes results, in fact, in persons adhering to a particular religion or belief being put at a particular disadvantage, unless it is objectively justified by a legitimate aim, such as the pursuit by the employer, in its relations with its customers, of a policy of political, philosophical and religious neutrality, and the means of achieving that aim are appropriate and necessary, which it is for the referring court to ascertain.

In a case from France, Bougnaoui v. Micropole SA, (CJEU, March 14, 2017), however, the Court's Grand Chamber held that where an employer does not have a general rule on dress:

Article 4(1) of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation must be interpreted as meaning that the willingness of an employer to take account of the wishes of a customer no longer to have the services of that employer provided by a worker wearing an Islamic headscarf cannot be considered a genuine and determining occupational requirement within the meaning of that provision.

The Court issued a press release summarizing the decisions. The Guardian reports on the decision.

7th Circuit Upholds Enhanced Sentence For Hajj Fraud Defendant

In United States v. Minhas, (7th Cir., March 10, 2017), the U.S. 7th Circuit Court of Appeals upheld the 114 month prison sentence imposed on a travel agent convicted in two separate cases of wire and mail fraud. One of the cases involved selling 54 customers purported Hajj travel packages when defendant was unable to provide the necessary visas for travel to Saudi Arabia. The district court imposed sentence enhancement under the Sentencing Guidelines because the offense resulted in substantial financial hardship to the victims. The appeals court upheld the district court's consideration of victims as a group rather than individually in making this determination. The court added:

It is also worth noting that the district court understood that, at least in the Lightstar Hajj case, the harm was not just the loss of money, but was also a spiritual injury inflicted when it became impossible for the victim to make the hajj.... While being deprived of this opportunity (for a year at the very least) may not constitute a financial loss in the traditional sense of losing dollars from a bank account, it is a significant alteration in life circumstances, as are many of the factors pertinent to interpreting “substantial financial hardship”....

11th Circuit: Title VII Does Not Bar Sexual Orientation Discrimination

In Evans v. Georgia Regional Hospital, (11th Cir., March 10, 2017), the U.S. 11th Circuit Court of Appeals in a 2-1 decision held that Title VII of the 1964 Civil rights Act does not protect against employment discrimination on the basis of sexual orientation. Jude Martinez, in his majority opinion, held:

Our binding precedent forecloses such an action. Blum v. Gulf Oil Corp., 597 F.2d 936, 938 (5th Cir. 1979)4 (“Discharge for homosexuality is not prohibited by Title VII . . . .”). “Under our prior precedent rule, we are bound to follow a binding precedent in this Circuit unless and until it is overruled by this court en banc or by the Supreme Court.”

Judge Pryor concurring wrote in part:

I write separately to explain the error of the argument of the Equal Employment Opportunity Commission and the dissent that a person who experiences discrimination because of sexual orientation necessarily experiences discrimination for deviating from gender stereotypes. Although a person who experiences the former will sometimes also experience the latter, the two concepts are legally distinct. And the insistence otherwise by the Commission and the dissent relies on false stereotypes of gay individuals.

Judge Rosenbaum, dissenting in part, wrote:

Plain and simple, when a woman alleges, as Evans has, that she has been discriminated against because she is a lesbian, she necessarily alleges that she has been discriminated against because she failed to conform to the employer’s image of what women should be—specifically, that women should be sexually attracted to men only. And it is utter fiction to suggest that she was not discriminated against for failing to comport with her employer’s stereotyped view of women. That is discrimination “because of . . . sex,” 42 U.S.C. § 2000e-2(a)(1), and it clearly violates Title VII under Price Waterhouse [v. Hopkins, 490 U.S. 228 (1989)].

Atlanta Journal Constitution reports on the decision.

Monday, March 13, 2017

Sunday, March 12, 2017

Utah Legislature Passes Changes to Polygamy Ban

As reported by AP and CNN, the state legislature late last night gave last minute final passage to HB 99 (full text) amending the state's bigamy law. It is unclear whether Gov. Gary Herbert will sign the bill. The bill narrows the definition of bigamy, but increases the penalties if the person prosecuted is also convicted of fraud, abuse or trafficking. The bill required purporting to marry and cohabiting where either party is already married for a person to be guilty of bigamy. Current law requires only one of those. Reactions to the law vary. Sponsors say the change is necessary to protect against constitutional challenges and to focus on those plural marriages which are most problematic. Opponents say the bill will drive polygamy even further underground.

New South Dakota Law Protects Religious Child-Placement Agencies

ACLU reports that on March 10, South Dakota Governor Dennis Daugaard signed SB 149 (full text) into law. The new law protects adoption and foster care agencies that act in accordance with religious or moral beliefs in placing children, providing in part:

No child-placement agency may be required to provide any service that conflicts with, or provide any service under circumstances that conflict with any sincerely-held religious belief or moral conviction of the child-placement agency.

It also explicitly bars any adverse action by the state against a child placement agency that acts in accordance with its religious or moral principles, except it does not authorize discrimination on the basis of race, ethnicity or national origin. One of the primary effects of the legislation is to allow agencies to refuse to permit adoptions by same-sex couples.

Dakota Free Press reported on February hearings on the bill in which an ACLU witness pointed out that the bill would allow agencies to exclude adoptions or foster care placements by

not only same-sex couples, but also people who have a different religion [from] the agency, single parents, interfaith couples… families that don’t attend church weekly, service members or gun owners… based on the agency’s moral conviction regarding pacifism, all while children in need of homes languish in foster care and await permanent families. This bill even authorizes agencies to deny a child placement with a close relative and instead place that child with strangers if that relative is of the wrong religion….

Saturday, March 11, 2017

Mosque Sues Over Denial of Sewage Permit

As previously reported, last December the U.S. Department of Justice filed suit against Culpeper County, Virginia alleging that it violated the Religious Land Use and Institutionalized Persons Act by denying a sewage permit application to the Islamic Center of Culpeper. Now the Islamic Center has filed its own lawsuit making similar allegations. The complaint (full text) in Islamic Center of Culpeper v. County of Culpeper, Virginia, (WD VA, filed 3/9/2017) alleges:

The County of Culpeper ... has denied the Islamic Center of Culpeper... essential religious freedoms and equal protection under the law by refusing a “pump and haul” permit to enable ICC to construct a mosque on its own property. This Nation is founded on the principle that there will be religious freedom for all, but the County’s actions in this case violate that tenet by treating ICC differently than other similarly situated religious congregations.

WVIR reports on the lawsuit.

Friday, March 10, 2017

Hawaii Files Amended Complaint To Challenge Trump's New Travel Ban Executive Order

As reported by NPR, on Wednesday, Hawaii became the first state to sue to challenge the Trump administration's revised Executive Order imposing a 90-day suspension of entry into the United States by nationals of six Muslim-majority nations. The state's Second Amended Complaint (full text) in State of Hawaii v. Trump,(D HI, filed 3/8/2017), alleges that the new travel ban violates the Establishment Clause by having the purpose and effect of disfavoring Islam, and violates the equal protection clause by discriminating on the basis of religion and/or national origin, nationality, or alienage. It also contends that the Executive Order substantially burdens the exercise of religion in violation of the Religious Freedom Restoration Act, contending:

Among other injuries, some non-citizens currently outside the United States cannot enter the United States to reunite with their families or religious communities. Religious communities in the United States cannot welcome visitors, including religious workers, from designated countries. And some non-citizens currently in the United States may be prevented from travelling abroad on religious trips, including pilgrimages or trips to attend religious ceremonies overseas, if they do not have the requisite travel documents or multiple-entry visas.

[Thanks to Tom Rutledge for the lead.]

Church May Move Ahead With RLUIPA Objections To Denial of Demolition Permit

Village of West Dundee v. First United Methodist Church of West Dundee, (IL App., March 7, 2017), involves a church's attempt to obtain a permit to demolish a building located in the Village's Historic District. The Church used the building as a parsonage until it fell into disrepair. The Village sought to have the church repair the building instead of demolish it. The Church, in a counter complaint, alleged that denial of a demolition permit imposed a substantial burden in violation of the Religious Land Use and Institutionalized Persons Act, amounted to unequal treatment under RLUIPA and constituted an inverse condemnation. The appeals court held that the trial court should not have dismissed the Church's counter complaint because it sufficiently stated several claims and was not barred on failure-to-exhaust grounds.

Thursday, March 09, 2017

Photographer Challenges Public Accommodation Law

Earlier this week a suit was filed in a Wisconsin state trial court challenging Madison City Code § 39.03(5) which makes it illegal for public accommodations to deny “equal enjoyment” because of someone’s sexual orientation or political beliefs or to publish “any communication” that denies facilities or that conveys a person’s patronage is “unwelcome, objectionable or unacceptable” because of someone’s sexual orientation or political beliefs. It also challenges Wis. Stat. §106.52 that has similar provisions regarding sexual orientation. The complaint (full text) in Amy Lynn Photography Studio, LLC v. City of Madison, (WI Cir. Ct., filed 3/7/2017), contends that these legal provisions impede the ability of photographer Amy Lynn to rely on her Christian religious beliefs in deciding which clients to offer her visual storytelling service:

Amy loves to photograph and post about weddings so that others can see God’s love and character displayed in the beauty of marriage. Amy also wants to photograph for and post about pro-life pregnancy health clinics so that others can see God’s love and character displayed in the sanctity of life. These desires have grown as Amy has seen our culture increasingly question the value of marriage and the sanctity of human life.

To counteract that trend, Amy not only promotes certain content, she avoids certain content. Amy can hardly promote her beliefs while glamorizing contrary ideas. Amy therefore cannot photograph or write about things celebrating pornography, racism, violence, abortion, or any marriage besides marriage between one man and one woman, such as same-sex marriage. Nor can she photograph or write about organizations that promote those beliefs.

But Madison’s and Wisconsin’s public accommodation laws forbid that freedom.

An ADF press release announced the filing of the lawsuit.

Wednesday, March 08, 2017

100 Senators Call For Action On Jewish Community Center Bomb Threats

All 100 members of the U.S. Senate yesterday signed a letter (full text) to the Attorney General, the Secretary of Homeland Security and the Director of the FBI calling for "swift action with regard to the deeply troubling series of anonymous bomb threats made against Jewish Community Centers (JCCs), Jewish Day Schools, Synagogues and other buildings affiliated with Jewish organizations or institutions across the country." Sen. Gary Peters issued a press release announcing the letter. Politico called the letter "a rare moment of bipartisanship."

Court Rejects RFRA Challenge To Dakota Access Pipeline

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, March 7, 2017), the D.C. federal district court denied a preliminary injunction requested by the Cheyenne River Sioux Tribe which objects to the presence of oil in the pipeline under Lake Oahe. It asserted a claim under RFRA that the easement under the lake will cause irreparable harm to its members’ religious exercise. The court held first:

Because of the Plaintiff’s delay in raising this religious-exercise objection and the negative impact of that delay on the Corps and Dakota Access, the Court concludes that the requested preliminary-injunctive relief is barred by laches.

Moving to the merits, the court also concluded that the Tribe has failed to demonstrate a likelihood of success, saying in part:

The government action here — i.e., granting the easement to Dakota Access and thereby enabling the flow of oil beneath Lake Oahe — does not impose a sanction on the Tribe’s members for exercising their religious beliefs, nor does it pressure them to choose between religious exercise and the receipt of government benefits. Cheyenne River argues that whether it has been subjected to such sanction or pressure is irrelevant ... and contends instead that it is sufficient for purposes of showing substantial burden that the effect of the government’s action is to prevent the Tribe’s members from performing required religious sacraments at Lake Oahe.... That argument, however, is directly at odds with Supreme Court precedent.

The Hill reports on the decision.

Pennsylvania Diocese Reaches Agreement With Prosecutors On New Child Protection Measures

As previously reported, a year ago a Pennsylvania Grand Jury filed a lengthy Report on sexual abuse of children by Pennsylvania Catholic clergy. On Monday, the U.S. Attorney's Office for the Western District of Pennsylvania and the Diocese of Altoona-Johnstown announced a memorandum of understanding on reforms by the Diocese, summarizing the core reforms as follows:

The creation of an independent, multidisciplinary oversight board;
The retention of an outside expert to develop a new, comprehensive child abuse prevention program;
A reporting protocol that requires the Diocese to report allegations of child sexual abuse to law enforcement within twelve hours after receipt; and
Counseling and support services for victims by qualified and independent mental health professionals chosen by the victims.

Reporting on the new agreement, AP says that it also requires the Diocese to immediately take priests accused of abuse out of positions where they have contact with minors, and place them on leave within 24 hours.

Revised Settlement Agreement Reached In Suits On NYPD Surveillance of Muslims

The ACLU on Monday announced a revised settlement agreement in two cases involving the New York Police Department's surveillance of Muslims. As previously reported, last November a federal district court judge rejected an initial settlement agreement's modifications of the so-called Handschu Guidelines that grew out of a consent decree in an earlier case on NYPD surveillance activities. The agreement announced Monday responds to the judge's concerns. The ACLU describes the changes as follows:

Under the new enhancements, the civilian representative has even greater authority, independence, and responsibility. She is empowered to report to the court at any time if there are violations of the Handschu Guidelines, is required to report systematic violations, and must report to the court on an annual basis. The mayor is prohibited from abolishing the civilian representative position without judicial approval, and abolition by order of the court is only permitted if there have not been systemic violations of the Handschu Guidelines for the preceding three years. The civilian representative is specifically authorized to review not just the opening or extension of investigations, but also how they are conducted. In addition, the civilian representative will review the propriety of the use of undercover officers or confidential informants — a source of great concern to communities.

Wyoming Supreme Court Censures Judge Who Refused To Perform Same-Sex Marriages

In a 3-2 opinion yesterday, the Wyoming Supreme Court held that a judge who, because of religious objections, refuses to perform same-sex marriages violates the Wyoming Code of Judicial Conduct. In Neely v. Wyoming Commission on Judicial Conduct and Ethics, (WY Sup. Ct., March 7, 2017), Justice Fox wrote for the majority, saying in part:

This case is not about same-sex marriage or the reasonableness of religious beliefs.... This case is also not about imposing a religious test on judges. Rather, it is about maintaining the public’s faith in an independent and impartial judiciary that conducts its judicial functions according to the rule of law, independent of outside influences, including religion, and without regard to whether a law is popular or unpopular.

Responding to petitioner's free exercise argument, the majority stated:

Allowing Judge Neely to opt out of same-sex marriages is contrary to the compelling state interest in maintaining an independent and impartial judiciary.

However, rejecting the Commission's recommendation that Judge Neely be removed from office, the majority said:

Weighing these factors, we find that Judge Neely’s misconduct warrants a public censure. We further find that Judge Neely must perform her judicial functions, including performing marriages, with impartiality. She must either commit to performing marriages regardless of the couple’s sexual orientation, or cease performing all marriage ceremonies.

Justice Kautz, joined by Justice Davis, dissented, saying in part:

The majority’s position that Judge Neely violated Rule 1.2 is based on the mistaken conclusion that Judge Neely refused “to follow the law of the land.” As discussed above, the undisputed evidence shows that Judge Neely made no such refusal. She did not state that she would deny marriage to same sex couples, but rather said she would assist such couples in finding someone to perform their civil marriage ceremony. The law does not require Judge Neely personally to perform every marriage.

Focusing on the majority's free exercise argument, the dissenters said in part:

Apparently some individuals might find it offensive that Judge Neely said she would decline to personally perform a same-sex marriage and instead would refer them to someone else. There is no compelling state interest in shielding individuals from taking such an offense.

AP reports on the decision. [Thanks to Gabe Rusk for the lead.]

Tuesday, March 07, 2017

Trump Issues More Focused Travel Ban and Refugee Restrictions

As reported by the Washington Post, yesterday President Trump issued a narrower and more focused Executive Order (full text) imposing a 90-day suspension of entry into the United States by nationals of six Muslim-majority nations-- Iran, Libya, Somalia, Sudan, Syria and Yemen. Iraqi nationals are no long included in the travel ban, though they may be subjected to increased scrutiny. The Order justifies this list of nations:

Each of these countries is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. Any of these circumstances diminishes the foreign government's willingness or ability to share or validate important information about individuals seeking to travel to the United States. Moreover, the significant presence in each of these countries of terrorist organizations, their members, and others exposed to those organizations increases the chance that conditions will be exploited to enable terrorist operatives or sympathizers to travel to the United States....

This new Order exempts, among others, lawful permanent residents of the U.S. and dual nationals traveling on other country passports. The Order comes as the President's broader Order issued in January remains tied up in the courts. Yesterday's Order begins with a lengthy section setting out justifications for the earlier Order. Section 1.(b)(iv) lays out the Administration's argument against charges that the earlier Order favored Christian refugees over others:

Executive Order 13769 did not provide a basis for discriminating for or against members of any particular religion. While that order allowed for prioritization of refugee claims from members of persecuted religious minority groups, that priority applied to refugees from every nation, including those in which Islam is a minority religion, and it applied to minority sects within a religion. That order was not motivated by animus toward any religion, but was instead intended to protect the ability of religious minorities -- whoever they are and wherever they reside -- to avail themselves of the USRAP in light of their particular challenges and circumstances.

Like the earlier Order, the new one suspends refugee entry of 120 days and limits the number of refugees in fiscal 2017 to 50,000. However, in the new Order Syrian refugees are not singled out for a longer suspension.

Court Awards Nominal Damages Over School's Live Nativity Scene Show

In Freedom From Religion Foundation v. Concord Community Schools, (ND IN, March 6, 2017), an Indiana federal district court awarded nominal damages totaling $10 and issued a declaratory judgment concluding that Concord High School's Christmas Spectacular as performed in 2014 and as proposed to be performed in 2015 violated the Establishment Clause. The shows included a living Nativity scene. After rejecting the school's mootness arguments, the court ruled:

The 2014 version of the Christmas Spectacular presents an even clearer case. Not only did this version of the show include the same extended living nativity scene as the proposed-2015 show, in which the nativity scene was emphasized unlike any other aspect of the show, it included a narration consisting of Bible passages read by a faculty member, telling the story of Jesus’ birth. It also lacked any context suggesting an educational or cultural purpose for this presentation, and instead focused solely on the Christmas holiday, and in particular, the religious content of that holiday. The message of endorsement conveyed by this version of the show was unmistakable. Indeed, at no point in this litigation has the School presented any argument in defense of this version of the show.

FFRF issued a press release announcing the decision. (See prior related posting.)

Monday, March 06, 2017

Supreme Court Remands Transgender Bathroom Case

The U.S. Supreme Court today issued an order (Order List) in Gloucester County School Board v. G.G., (Docket No. 16-273), the high profile Title IX transgender bathroom case, sending the case back to the 4th Circuit. The Order reads:

The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017.

In February the Trump Administration withdrew the Guidance document that had been issued by the Obama Administration. (See prior posting). That withdrawn Guidance document took the position that Title IX requires that students be allowed to use rest rooms and locker rooms consistent with their gender identity. New York Times reports on the Supreme Couirt's action.