Tuesday, January 23, 2018

Pence Speaks To Israel's Knesset

Yesterday U.S. Vice President Mike Pence delivered a lengthy address (full text) to Israel's Knesset (Parliament).  His remarks included numerous religious references and references to Jewish history.  He said in part:
In the story of the Jews, we’ve always seen the story of America. It is the story of an exodus, a journey from persecution to freedom, a story that shows the power of faith and the promise of hope.
My country’s very first settlers also saw themselves as pilgrims, sent by Providence, to build a new Promised Land. The songs and stories of the people of Israel were their anthems, and they faithfully taught them to their children, and do to this day. And our founders, as others have said, turned to the wisdom of the Hebrew Bible for direction, guidance, and inspiration....
The Jewish people’s unbreakable bond to this sacred city reaches back more than 3,000 years. It was here, in Jerusalem, on Mount Moriah, that Abraham offered his son, Isaac, and was credited with righteousness for his faith in God.
It was here, in Jerusalem, that King David consecrated the capital of the Kingdom of Israel. And since its rebirth, the modern State of Israel has called this city the seat of its government.

Suit Over Opening Prayers In Courtroom Survives Motion To Dismiss

In Freedom From Religion Foundation, Inc. v. Mack(SD TX, Jan. 19, 2018), a Texas federal district court refused to dismiss a an Establishment Clause challenge to the practice by a Texas Justice of the Peace of opening each court session with a lengthy Christian prayer by a guest chaplain from his chaplaincy program. The court concluded that two of the three plaintiffs had standing, and that they had stated a plausible claim that the judge's prayer practice violates the Lemon test.  the judge had campaigned on a platform of reinstituting religious values within the office.  Both Freedom From Religion Foundation and First Liberty issued press releases announcing the decision. First Liberty also has links to some of the pleadings in the case.  (See prior related posting.)

Monday, January 22, 2018

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, January 21, 2018

Recent Prisoner Free Exercise Cases

In Ollie v. Illinois Department of Corrections, 2018 U.S. Dist. LEXIS 6684 (SD IL, Jan. 16, 2018), an Illinois federal district court dismissed a Christian inmate's complaint that he was not allowed to attend congregate religious services while in the Staff Assaulter Program.

In Jackson v. Climmer, 2018 U.S. Dist. LEXIS 6656 (D OR, Jan. 16, 2018), an Oregon federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 215490, Nov. 22, 2017) and dismissed an inmate's allegations that pork was included in his diet.

In Thompson v. Premo, 2018 U.S. Dist. LEXIS 7907 (D OR, Jan. 16, 2018), an Oregon federal district court, in an inmate's challenge to his sentence, rejected his argument that jurors' free exercise rights were infringed when jurors were death-qualified for the guilt phase of his trial.

In Braziel v. Roy, 2018 U.S. Dist. LEXIS 7106 (D MN, Jan. 17, 2018), a Minnesota federal district court adopted a magistrate's recommendation (2017 U.S. Dist. LEXIS 215627, Dec. 21, 2017) and dismissed a Muslim inmate's complaint regarding his suspension from the religious diet program and the policy underlying his suspension.

In Ramsey v. Fischer, 2018 U.S. Dist. LEXIS 9114 (WD NY, Jan. 18, 2018), a New York federal magistrate judge recommended dismissing an inmate's complaint that upon transfer it took a week for him to be placed on the kosher meal plan and another month to receive matzah and grape juice for Friday evening Sabbath services.

Saturday, January 20, 2018

Nuns Argue RFRA Claim As To Pipeline Before 3rd Circuit

On Friday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Adorers of the Blood of  Christ v. FERC.  In the case, a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order. (See prior posting.)  At issue is whether the nuns should have used procedures set out in the Natural Gas Act to raise their objections. NPR reports on the oral arguments.

Report Says Women of Color Disproportionately Give Birth In Catholic Hospitals In 19 States

The Columbia Law School Public Rights/ Private Conscience Project yesterday released a new report Bearing Faith: The Limits of Catholic Health Care for Women of Color. The study focuses on racial disparities of women giving birth in Catholic hospitals governed by Ethical and Religious Directives for Catholic Health Care Services.  According to the report:
The ERDs forbid hospitals owned by or affiliated with the Catholic Church ... from providing many forms of reproductive health care, including contraception, sterilization, many infertility treatments, and abortion, even when a patient’s life or health is jeopardized by a pregnancy. Catholic hospitals represent a large and growing part of the U.S. health care system. One in six hospital beds in the country is in a hospital governed by the ERDs....
This study finds that in nineteen out of the thirty-four states/territories that we studied, women of color are more likely than white women to give birth at hospitals bound by the ERDs.
The study found that in 12 states and one territory, Catholic hospitals disproportionately served white women, two states showed little disparity, and seven states had no Catholic birth hospitals.

Friday, January 19, 2018

Trump Administration Takes Several Actions Supporting Pro-Life Advocates

As reported by CNN, today was the 45th annual March for Life in Washington, D.C.  Both Vice-President Pence and President Trump addressed the marchers via video feed from the White House Rose Garden. (Video of remarks.) Today, President Trump also issued a Proclamation (full text) declaring January 22 as National Sanctity of Human Life Day. The White House additionally issued a Fact Sheet titled President Donald J. Trump is Standing Up for the Sanctity of Life.

Today, the Department of Health and Human Services also announced two pro-life initiatives. The HHS Office for Civil Rights issued a 216-page release (full text) proposing revisions in in order to expand enforcement authority as to rules that protect conscience objections in delivery of health care services. Second, the Department of Health and Human Services issued a Letter to State Medicaid Directors (full text) rescinding SMD #16-005, a 2016 letter to Medicaid.  That letter which today's action rescinded provided in part:
... [S]tates may not deny qualification to family planning providers, or take other action against qualified family planning providers, that affects beneficiary access to those providers—whether individual providers, physician groups, outpatient clinics or hospitals—solely because they separately provide family planning services or the full range of legally permissible gynecological and obstetric care, including abortion services (not funded by federal Medicaid dollars, consistent with the federal prohibition), as part of their scope of practice.

Supreme Court Grants Cert. In 3rd Travel Ban Challenge; Asks For Argument on Establishment Clause

The U.S. Supreme Court today issued an order (full text) granting review in Trump v. Hawaii, (Docket No. 17-965, cert. granted 1/19/2018).   In the case, the U.S. 9th Circuit Court of Appeals held that the third version of President Trump's travel ban is inconsistent with the Immigration and Nationality Act, but stayed its injunction pending Supreme Court review. (See prior posting.) While the 9th Circuit avoided ruling on plaintiffs' Establishment Clause claim, the Supreme Court ordered the parties to brief and argue that issue (raised as Question 3 in Hawaii's brief in opposition), as well as the issues raised by the original petition for certiorari.  SCOTUSblog's case page has links to additional primary source material relating to the case.

No Title VII Claim Based on "Perceived" Religion

In Cole v. Cobb County School District, (ND GA, Jan. 18, 2018), a Georgia federal district court dismissed Title VII religious discrimination claims brought by a school principal who was transferred to a low performing school far from her home after parents complained about her introduction of mindfulness practices, including yoga, at her school.  The principal is Christian, but parents complained to the school board falsely claiming that the she was a Buddhist and was attempting to indoctrinate their children with Buddhism.  The court held that Title VII does not cover discrimination or reverse discrimination claims based on an individual's perceived, rather than their actual, religion,  The court however did permit plaintiff to move ahead with her Establishment Clause claim.

10th Circuit Reverses Summary Judgment In Title VII Suit By Seventh Day Adventists

In Tabura v. Kellogg USA, (10th Cir., Jan. 17, 2018), the U.S. 10th Circuit Court of Appeals reversed a district court's grant of summary judgment to employer Kellogg in a Title VII suit brought by Seventh Day Adventists who were seeking an accommodation for their Sabbath observance.  The court held:
Title VII required Kellogg reasonably to accommodate Plaintiffs’ religious practice, if Kellogg could do so without incurring undue hardship to its business. Whether Kellogg reasonably accommodated Plaintiffs’ Sabbath observance and, if not, whether Kellogg could do so without undue hardship, must await further proceedings.
In reaching this conclusion, the court rejected arguments that it should adopt per se rules defining reasonable accommodation, and instead emphasized that these issues must be decided on a case specific basis.  Business Insurance reports on the decision.  [Thanks to Steven H. Sholk for the lead.]

Thursday, January 18, 2018

Trump Administration Is Planning Expanded Religious and Moral Exemptions For Doctors

The Wall Street Journal reported yesterday that the Trump Administration is planning to expand exemptions from health care anti-discrimination rules for doctors who have religious or moral objections to gender transitioning or abortion.  The Department of Health and Human Services also plans to create  a division of "conscience and religious freedom protections" in the Department's Office for Civil Rights.  HHS sent its rule proposals to the White House for review last Friday.  President Trump might announce the changes on Friday when he addresses the March for Life on the National Mall by satellite. [Thanks to Steven H. Sholk for the lead.]

UPDATE: On Jan. 18, the Department of Health and Human Services formally announced formation of a new Conscience and Religious Freedom Division in its Office for Civil Rights.

"Church Plan" Class Action Settled

Last June, the U.S. Supreme Court held that retirement plans of religiously affiliated health care systems qualify as "church plans" exempt from ERISA. (See prior posting.) Now a settlement has been approved by an Illinois federal district court in a class action suit against Ascension, the largest Catholic health care system in the country. The suit was one of many that challenged the availability of the  church plan exemption.  As reported by Cook County Record:
Under the deal, Ascension agreed to pay $29.5 million into a trust fund, and agreed to not reduce any retiree accrued benefits for at least the next seven years, and provide various annual plan notices, “equitable provisions that mimic certain provisions” of the federal Employee Retirement Income Security Act, according to a memorandum filed by plaintiffs in support of the settlement.
However, the deal would allow Ascension to buy out its full obligation, by contributing $25 million to the trust fund.

3rd Circuit: Preachers' Civil Rights Suit Dismissed On Immunity Grounds

In Karns v. Shanahan, (3rd Cir., Jan. 11, 2018), t U..S. 3rd Circuit Court of Appeals affirmed the dismissal of a civil rights damage action brought by two evangelical Christian ministers who were arrested for preaching on an NJ Transit train platform without the required permit.  In a 2-1 decision, the court held that NJ Transit is an arm of the state and thus has 11th Amendment immunity.  The 3-judge panel agreed unanimously that the police officers who were also sued have qualified immunity.  WHYY News reports on the decision.

Advocacy Groups Say Military Is Imposing Religious Participation On Cadets

The Freedom From Religion Foundation and American Atheists announced this week that they have sent a joint letter (full text) to Secretary of Defense James Mattis complaining about an increased incidence of military members and their families being forced to participate in religious observances at military training facilities. The letter says in part:
By scheduling prayer in graduation ceremonies, and by leading cadets in prayer prior to examinations, our military training facilities are violating the Establishment Clause of the First Amendment. By assigning menial or labor-intensive tasks to cadets who elect not to participate in worship services, these facilities are violating the equal protection principles enshrined in the Due Process Clause of the Fifth Amendment.
Friendly Atheist Blog reports on the letter.

Couple Sues Printer Over Substitution of Anti-Gay Pamphlets For Wedding Programs

The New York Post this week reports on a lawsuit filed in Massachusetts federal district court against Vistaprint.  The company's North American Business Headquarters are located in Boston.  Plaintiffs are a same-sex couple who were married in a ceremony in Pennsylvania last September. The couple had ordered 100 copies of a customized program for their wedding.  When they opened the package Vistaprint sent to them, they found that instead of the programs they had been sent 80 copies of an anti-gay pamphlet titled "‘Understanding Temptation: Fight the good fight of the faith." The pamphlets warn: "Satan entices your flesh with evil desires." Vistaprint, which says it would not discriminate on the basis of sexual orientation, indicated that it had just learned of the incident and have begun an internal investigation.

Wife's Religious Convictions Do Not Override Vermont Divorce Law

In Maghu v. Singh, (VT Sup. Ct., Jan. 12, 2018), the Vermont Supreme Court rejected a wife's attempt to obtain dismissal of a no-fault divorce petition filed by her husband.  The couple was married in India and, among other contentions, the wife argued that Vermont's courts should defer to Indian divorce law. In rejecting that contention, the court said in a footnote:
We reject wife’s argument that the court’s grant of a no-fault divorce contrary to India’s Hindu Marriage Act, and the religious requirements reflected therein, impinges on wife’s free exercise of religion in violation of Chapter I, Article 3 of the Vermont Constitution. Quite the opposite, it would be constitutionally problematic, to say the least, if we began to decline access to a divorce from an otherwise qualified domiciliary on the basis of the religious convictions of the other party. 

Wednesday, January 17, 2018

Inter-American Human Rights Court Recognizes Same-Sex Marriage and Transgender Rights

In an Advisory Opinion (full text in Spanish) dated Nov. 24, 2017, but apparently first published on Jan. 9, 2018, the Inter-American Court of Human Rights ruled that the American Convention on Human Rights requires governments to recognize family rights of same-sex couples and transgender rights. As reported by the Washington Blade:
The Inter-American Court of Human Rights on Tuesday issued a landmark ruling that recognizes same-sex marriage and transgender rights in the Western Hemisphere. 
The seven judges who issued the ruling stated governments “must recognize and guarantee all the rights that are derived from a family bond between people of the same sex.” Six of the seven judges also agreed that it is necessary for governments “to guarantee access to all existing forms of domestic legal systems, including the right to marriage, in order to ensure the protection of all the rights of families formed by same-sex couples without discrimination.”
The court issued its ruling after the Costa Rican government in 2016 asked for an advisory opinion on whether it has an obligation to extend property rights to same-sex couples and allow transgender people to change their name and gender marker on identity documents.
The ruling says the Costa Rican government must allow trans people to legally change their name and gender marker on official documents.
According to La Voz,  "Costa Rica is the only country that gives the same weight to a CIDH ruling as it does to a national court’s judicial decision."

Church Camp Loses Challenge To Zoning Decision On Neighboring Dairy Farm

In House of Prayer Ministries, Inc. v. Rush County Board of Zoning Appeals, (IN App., Jan. 16, 2018), an Indiana state appeals court rejected a challenge by a church summer camp to a zoning board decision granting a special exception to a dairy farm to operate a concentrated animal feeding operation one-half mile from the summer camp.  The church argued in part that the grant of the special exception substantially burdens its religious exercise by "imperiling the health of the children" at its camp.  The court first held that the federal Religious Land Use and Institutionalized Persons Act is not available to the church here because a RLUIPA claim can be raised only by a person with a property interest in the land that is regulated.  RLUIPA does not extend to other property that is merely affected by a land use decision as to neighboring land.

The court went on to hold that Indiana's state Religious Freedom Restoration Act was also not violated:
The [Board of Zoning Appeal's] apparent assessment that House of Prayer will not be substantially burdened in the exercise of its religion by the grant of the special exception is supported by substantial evidence.
Indiana Lawyer reports on the decision.

Suit Contends Ministerial Exception Does Not Bar Hostile Work Environment Claims

Yesterday's Cook County Record reports on a hostile work environment lawsuit filed in federal court in Chicago by Sandor Demkovich, former organist and music director of St. Andrew the Apostle Church in Calumet City, Illinois.  Demkovich was fired several days after he entered a same-sex marriage. His earlier lawsuit charging employment discrimination was dismissed on "ministerial exception" grounds.  The new lawsuit argues that the ministerial exception doctrine does not apply to hostile work environment claims.

Justice Department Supports Archdiocese Against Washington Area Transit Authority

As previously reported, the Court of Appeals for the D.C. Circuit is considering an appeal by the Archdiocese of Washington challenging the refusal of the Washington Area Metropolitan Transit Authority to accept bus ads that promote religion, religious practices or religious beliefs. Yesterday the U.S. Department of Justice filed an amicus brief (full text) supporting the Archdiocese whose Christmas ad was rejected by WMATA. The brief argues that "WMATA’s policy constitutes unconstitutional viewpoint discrimination." National Law Journal reports on DOJ's action.

Suit In Belgium Challenges Kosher Slaughter Ban

In Belgium yesterday, three organizations filed suit challenging legislation in the Flemish Region of the country that bans kosher and halal slaughter beginning in 2019. As reported by The Daily Mail, the lawsuit contends that the legislation in Flanders violates the freedom of religion protections found in the Charter of Fundamental Rights of the European Union, the European Convention on Human Rights and the Belgian Constitution. The Coordinating Council of Islamic Institutions has separately filed suit challenging the law. A suit filed last November challenged a similar law enacted by the Walloon Region. (See prior posting.)