No Free Exercise Defense To Charge of Attending Cockfight

In United States v. Cruz, (SD NY, Feb. 15, 2018), a New York federal magistrate judge rejected a Free Exercise defense to a charge of knowingly attending a cockfight in violation of 7 USC §2156.  The court said in part:

Here, Cruz has failed to make a showing that the act of engaging in animal fighting ventures stems from sincerely held beliefs that are religious in nature. Although Cruz continually refers to the “God given” dominion of man over animals, he does not identify any specific religious tenets or practices that are burdened by the statute. Nor does he identify any religion or denomination from which his beliefs derive. Indeed, in “attest[ing] to the importance of the God given rights of the American farmer,” Cruz cites quotations in which the founding fathers, including Thomas Jefferson, John Adams, James Madison, and Benjamin Franklin, exalted agriculture.... This suggests that Cruz’s beliefs are philosophical or political in nature.

Ohio Court Gives Custody of Transgender Teen To Grandparents

CNN reports that an Ohio trial court judge today gave custody of a 17-year old transgender male to his grandparents after his parents sought to bar the hormonal transition treatment strongly recommended by the youth's medical team.  Grandparents will now be able to make medical decisions for the teen.  The parents argued that the teen was not old enough to make such a consequential decision.  A county prosecutor contended that the parents objected because of their religious beliefs. Court testimony revealed that the parents, in addition to opposing treatment, refused to call the youth by his chosen name, triggering suicidal feelings in him.

EEOC Sues Over Accommodation For Religious Objection To Flu Vaccine

The EEOC announced this week that it has filed a religious discrimination lawsuit against the Owossso, Michigan based Memorial Healthcare.  The company revoked its job offer to Yvonne Bair to work as a medical transcriptionist after she objected on religious grounds to receiving an influenza shot or spray immunization.  Memorial refused her suggested accommodation of allowing her to wear a mask, even though company policy allowed masks as an alternative for those who cannot take a vaccine for other reasons.  MarketWatch reports on the lawsuit.

4th Circuit En Banc Says Trump's Third Travel Ban Violates Establishment Clause

The U.S. 4th Circuit Court of Appeals en banc today, in opinions spanning 285 pages, affirmed a Maryland federal district court's grant of a preliminary injunction against the Proclamation setting out the third version of President Trump's travel ban.  In International Refugee Assistance Project v. Trump, (4th Cir. en banc, Feb. 15, 2018), the court by a vote of 9-4 held that plaintiffs are likely to succeed on the merits of their Establishment Clause claim.  Chief Judge Gregory's majority opinion said in part:

[H]ere the Government’s proffered rationale for the Proclamation lies at odds with the statements of the President himself. Plaintiffs here do not just plausibly allege with particularity that the Proclamation’s purpose is driven by anti-Muslim bias, they offer undisputed evidence of such bias: the words of the President. This evidence includes President Trump’s disparaging comments and tweets regarding Muslims; his repeated proposals to ban Muslims from entering the United States; his subsequent explanation that he would effectuate this “Muslim” ban by targeting “territories” instead of Muslims directly; the issuance of EO-1 and EO-2, addressed only to majority-Muslim nations; and finally the issuance of the Proclamation, which not only closely tracks EO-1 and EO-2, but which President Trump and his advisors described as having the same goal as EO-1 and EO-2.....

While the majority ultimately concluded that it would not rely on President Trump's pre-election statements in reaching its conclusion, it nevertheless indicated that it would have been permissible to do so:

Perhaps in implicit recognition of the rawness of the religious animus in the President’s pre-election statements, the Government urges us to disregard them. This is a difficult argument to make given that the President and his advisors have repeatedly relied on these pre-election statements to explain the President’s post-election actions related to the travel ban....  [I]n McCreary, the Supreme Court reminded us that “the world is not made brand new every morning.” .... Because “reasonable observers have reasonable memories,” these statements certainly provide relevant context when examining the purpose of the Proclamation.

The majority concluded:

In sum, the face of the Proclamation, read in the context of President Trump’s official statements, fails to demonstrate a primarily secular purpose. To the objective observer, the Proclamation continues to exhibit a primarily religious anti-Muslim objective. Our constitutional system creates a strong presumption of legitimacy for presidential action and we often defer to the political branches on issues related to immigration and national security. But the disposition in this case is compelled by the highly unusual facts here. Plaintiffs offer undisputed evidence that the President of the United States has openly and often expressed his desire to ban those of Islamic faith from entering the United States. The Proclamation is thus not only a likely Establishment Clause violation, but also strikes at the basic notion that the government may not act based on “religious animosity.”

Six of the judges would have also found a likelihood of success on at least some of plaintiffs' statutory challenges to the Proclamation. Four concurring opinions and two dissenting opinions were also filed. Pursuant to an earlier U.S. Supreme Court order, the court stayed the injunction pending a petition for certiorari to the Supreme Court. Richmond Times-Dispatch reports on today's decision.

NY Governor Issues Executive Order Barring State Contracts With Entities That Fail To Address Discrimination

Earlier this month (Feb. 3), New York Governor Andrew Cuomo issued an Executive Order (full text)  directing all state agencies and departments to amend their procurement procedures to prevent entering into contracts "with entities that have institutional policies or practices that fail to address the harassment and discrimination of individuals on the basis of their age, race, creed, color, national origin, sexual orientation, gender identity, military status, sex, marital status, disability, or other protected basis."  State departments and agencies must include non-discrimination provisions in all contracts for goods, services, technology or construction.  In a press release announcing the Executive Order, the governor's office said in part:

The Trump administration has banned transgender people from serving in the U.S. Military, removed guidance nationwide that helped protect young transgender students at school, and completely removed the LGBTQ community from the National Survey of Older Americans. Additionally, in October 2017, the federal government rescinded a contraceptive coverage mandate under the Affordable Car Act. This action has permitted employers and organizations to claim broad exemptions from nondiscrimination laws, which has increased the vulnerability of LGBTQ rights.

Following these actions, which perpetuate and tolerate discrimination and taken this nation in the wrong direction, New York is once again stepping up to ensure the rights of individuals across the state are protected.

The Director of Public Policy of the Archdiocese of New York strongly criticized the new Executive Order, saying in part:

the target of this new action is the very existence of religious agencies, and the intent is to suppress any deviation from the new orthodoxy of gender and sexual ideology.

LifeSite News reports further on these developments.

Murder Convictions Reversed Because Jehovah's Witness Juror Excluded

In Pacchiana v. State of Florida, (FL App., Feb. 14, 2018), a Florida appeals court reversed and remanded for a new trial the murder conviction of defendant.  In companion decisions the convictions of Pacchiana's co-defendants were also reversed: Michael Bilotti v. Florida and in Christin Bilotti v. Florida .

In the case, defense counsel raised a Batson challenge to the state's peremptory strike of an African American member of the jury pool.  The state responded that its race-neutral reason for the challenge was that the juror is a Jehovah's Witness.  The prosecution urged that members of that religion often believe that only God judges and they cannot judge.  In the court's primary opinion, Judge Levine wrote:

the state did not provide a “legitimate” race-neutral reason..... During voir dire, the potential juror stated that she would follow the law and gave no indication that she would allow her status as a Jehovah’s Witness to affect her decisionmaking at all. In moving to strike her, the state merely relied on the juror’s membership in a religion without any testimony that it would actually affect her service as a juror, speculating that “any” practicing Jehovah’s Witness would refuse to sit in judgment of others.

Judge Levine went on to conclude that even if this was a valid religion-based challenge, Batson should be extended to religion-based peremptory challenges, as well as racial ones.  He also concluded that:

striking a potential juror from jury service based solely on membership in a religion, no matter what the juror says during voir dire, is an impermissible “religious test” in violation of the United States and Florida Constitutions.

Chief Judge Gerber concurred only in part, concluding that religion is a race-neutral response to a Batson challenge. However he agreed with Judge Levine's other conclusions that made this an impermissible religion-based challenge.  Judge May dissented, concluding that Batson should not be extended to religion-based challenges.  She also concluded that there were sufficient additional reasons given for the challenge to make it race-neutral. However in co-defendant Christin Bilotti's case, she would remand for resentencing.  The Sun Sentinel reports on the decision.

City Considering Crowdfunding To Pay Ten Commandments Litigation Costs

The Farmington Daily Times reports that the city of Bloomfield, New Mexico may take an unusual approach to paying the $700,000 attorneys' fees of the successful plaintiffs who sued it over a Ten Commandments monument. It is considering using an online crowdfunding site to raise the funds.  While Alliance Defending Freedom represented the city without charge in the litigation, now that the city has finally lost after a denial of review by the Supreme Court, it must pay the ACLU for the cost of representing plaintiffs in the litigation.  The amounts will have to come from the city's general funds if its crowdfunding initiative is unsuccessful.

Cert. Filed In Episcopal Church Property Dispute

A petition for certiorari (full text) was filed last week with the U.S. Supreme Court in Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (cert. filed 2/9/2018).  In the case, the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. (See prior posting.)  The question presented in the cert petition is:

Whether the "neutral principles of law" approach to resolving church property disputes requires court to recognize a trust on church property even if the alleged trust does not comply with the State's ordinary trust and property law.

Anglican Curmudgeon blog discusses the cert. petition at length. [Thanks to Don Nichol for the lead.]

7th Circuit: Hebrew Teacher Covered By "Ministerial Exception" Doctrine

In Grussgott v. Milwaukee Jewish Day School, Inc., (7th Cir., Feb. 13, 2018), the U.S. 7th Circuit Court of Appeals held that the ministerial exception applies to prevent a former Hebrew teacher in a Jewish day school from suing for her firing in violation of the Americans With Disabilities Act.  Plaintiff taught first and second graders. In concluding that plaintiff should be classified as a "ministerial" employee, the court said in part:

... it is sufficient that the school clearly intended for her role to be connected to the school’s Jewish mission....  Milwaukee Jewish Day School expected Grussgott to follow its expressly religious mission and to teach the Tal Am curriculum, which is designed to “develop Jewish knowledge and identity in [its] learners.”.... This, combined with the importance of Grussgott’s Judaic teaching experience in her being hired, confirms that the school expected her to play an important role in “transmitting the [Jewish] faith to the next generation.”.... Even if Grussgott did not know this, the purpose of the ministerial exception is to allow religious employers the freedom to hire and fire those with the ability to shape the practice of their faith. Thus, it is the school’s expectation—that Grussgott would convey religious teachings to her students— that matters.

Valentine's Day Remains Controversial In Some Conservative Muslim and Hindu Areas

Again this year, Valentine's Day is countering opposition from conservative religious leaders in some nations.  Voice of America reports that Pakistan's  Electronic Media Regulatory Authority sent instructions to radio and television stations based on a ruling last year by the Islamabad High Court that Valentine's Day is un-Islamic, spreading immorality, nudity and indecency.  PEMRA told its licensees:

Respondents are directed to ensure that nothing about the celebrations of Valentine's Day and its promotion is spread on the Electronic and Print media," PEMRA's directive stated. "No event shall be held on an official level and at any public place. PEMRA is directed to ensure that all the TV channels shall stop the promotion of Valentine's Day forthwith."

Meanwhile, the Indonesian province of South Sulawesi has also continued its ban of the celebration of Valentine's Day. (Jakarta Post). And in the Indian state of  Karnataka, Shri Ram Sena pro-Hindu activists have been burning Valentines in effigy, claiming Valentine's Day as anti-Hindu. (MeriNews). Arab News reports however that Valentine's Day has become one of the most celebrated events in Egypt.

DOE No Longer Investigating Transgender Bathroom Access Complaints

The Department of Education yesterday confirmed that it is no longer investigating civil rights complaints from transgender students who are not allowed to use restrooms that conform to their gender identity.  CNN reports that the Department, implementing its prior withdrawal of Guidance documents issued by the Obama administration, now takes the position that Title IX bars discrimination on the basis of sex, but not on the basis of gender identity. A spokesperson said that Title IX does bar discrimination against transgender students based on sex-based stereotypes, but that longstanding regulations provide that sex-segregated bathrooms are not discriminatory.

Some Allegations About CAIR Stricken From Complaint

In Citizens for Quality Education San Diego v. San Diego Unified School District, (SD CA, Feb. 12, 2018), a California federal district court granted a motion by defendants to strike from plaintiffs' complaint certain allegations regarding the Council on American-Islamic Relations (CAIR).  The motion was filed in a suit alleging that the San Diego school district's anti-Islamophobia initiative is a "discriminatory scheme that establishes Muslim students as the privileged religious group within the school community." The court held that seven allegations claiming a relationship between CAIR and terrorism should be stricken as "impertinent, immaterial, and scandalous."  The court however refused to strike claims relating to CAIR’s views on Israel and Judaism.

Limits On Krishna Lunch Program Upheld

In Krishna Lunch of Southern California, Inc. v. Gordon, (CD CA, Feb. 9, 2018), a California federal district court dismissed a challenge by a Krishna consciousness organization to a UCLA rule that limits it to holding four event per year on the campus.  The organization, Krishna Lunch, wants to offer a lunch program with sanctified food (prasada) 2 or 3 times per week.  The court rejected free exercise, free speech and expressive association challenges to the limitation.  In rejecting plaintiff's expressive conduct claim, the court said in part:

Plaintiffs’ lunch program ... is afforded First Amendment protection only if there is an intent to convey a particularized message and a great likelihood that message would be understood by those who view it....

The Court previously concluded that Plaintiffs failed to allege a great likelihood their pro-animal/antimeat message would easily be understood by those who view it.  They still have not done so....

... [T]he fact that the Assigned Area (the location where Plaintiffs would conduct prasada) is regularly used by groups for which food distribution is common ... makes it highly unlikely that the ordinary viewer would glean a particularized message from Plaintiffs’ lunch program.

EEOC Obtains Settlement In Religious Discrimination Suit

In a press release last week, the EEOC announced that Decostar Industries, Inc., a Georgia-based auto supplier, has settled a religious discrimination lawsuit filed against it by the EEOC.  The company refused to accommodate an employee's religious beliefs that prevented her from working between sundown Friday and sundown Saturday.  The company will pay the employee damages of $38,500 and has entered a 2-year consent decree which, among other things, requires it to adopt a new religious accommodation policy.

White House Proposed Budget Promotes School Choice

The White House yesterday released its proposed Fiscal Year 2019 Budget (full text).  The Budget includes an increase in Department of Education funding for private (as well as public) school choice, described in part as follows:

The Budget invests $1.1 billion in school choice programs to expand the range of high-quality public and private school options for students, putting more decision-making power in the hands of parents and families.  This investment serves as a down payment toward achieving the President’s goal of an annual Federal investment of $20 billion—for a total of an estimated $100 billion when including matching State and local funds—in school choice funding. The Budget requests $500 million to establish a new school choice grant program to support a wide range of innovative approaches to school choice. These include expanding existing private school choice programs to serve more low-income and at-risk students, developing new private school choice models, or supporting school districts’ efforts to adopt student-based budgeting and open enrollment policies that enable Federal, State and local funding to follow the student to the public school of his or her choice....

Americans United issued a press release criticizing school voucher programs, saying in part:

Vouchers divert desperately needed resources away from the public school system, which educates 90 percent of our students, to fund the education of a few voucher students in private, religious schools. Voucher programs are an ineffective and damaging education policy: they do not improve – and can even lead to declines in – student achievement. They also lack accountability to taxpayers, deprive students of civil rights protections and often provide students with fewer resources than they would have in public schools.

Vouchers violate the religious freedom of both taxpayers and religious schools. The government should not compel any citizen to furnish funds in support of a religion with which he or she disagrees – or even a religion with which he or she does agree. Vouchers also threaten the religious liberty and autonomy of religious schools, as vouchers open them up to government audits, monitoring, control and interference from which they would otherwise be exempt.

European Court Upholds Conviction For Inciting Hatred

In Smajić v. Bosnia and Herzegovina, (ECHR, Jan. 16, 2018), a 3-judge panel of the European Court of Human Rights rejected a claim by a a citizen of Bosnia and Herzegovina that his free expression rights were infringed when he was convicted of inciting national, racial and religious hatred, discord or intolerance.  Applicant had posted online action that should be taken by Bosniac citizens of the Brčko District in the event of war and secession of  Republika Srpska (one of the two constituent entities of Bosnia and Herzegovina).  According to the court:

The applicant had used expressions which were highly insulting to members of an ethnic group, such as “this stinking Christmas”, “get rid of the danger behind our backs”, “the city centre should then be slowly cleansed” and “Serbs who came from different shitholes live there”.

Rejecting applicant's argument that his conviction violated Art. 10 of the European Convention on Human Rights, the court said in part:

31. The Court notes that the applicant’s conviction amounted to an “interference” with his right to freedom of expression. An interference contravenes Article 10 of the Convention unless it is “prescribed by law”, pursues one or more of the legitimate aims referred to in paragraph 2 of Article 10, and is “necessary in a democratic society” for achieving such an aim or aims.

32. The interference in the present case was prescribed by law; namely, it was based on Article 160 § 1 of the 2003 BD Criminal Code... Furthermore, the Court is satisfied that it pursued at least one of the legitimate aims referred to in Article 10 § 2 – namely the protection of the reputation and rights of others.

33. The Court reiterates that freedom of expression is one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to Article 10 § 2, it applies not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb. Such are the demands of pluralism, tolerance and broadmindedness, without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, but these must be construed strictly, and the need for any restrictions must be established convincingly....

Recent Articles of Interest

From SSRN:

• Joshua Cutler, The Religious Roots of the Progressive Income Tax in America,(January 22, 2018).
• Robert Kahn, Five Thoughts About the Repeal of Denmark's Blasphemy Ban, (January 29, 2018).
• Julio C. Colón, Settlement of Islamic Finance Disputes in the United States of America, (Dispute Resolution in Islamic Finance (Forthcoming)).
• Avihay Dorfman, Toleration in Law, (January 30, 2018).
• Fiona de Londras & Mima Markicevic, Reforming Abortion Law in Ireland: An Analysis of Submissions to the Citizens Assembly, (October 10, 2017).
• Steven G. Calabresi, Hannah Begley, Katherine L. Dore & Sarah E. Agudo, Individual Rights Under State Constitution in 2018: What Rights are Deeply Rooted in a Modern-Day Consensus of the States, (Northwestern Law & Econ Research Paper No. 18-02 (2018)).
• J.B. Heaton, What Injures a Corporation? Toward Better Understanding Corporate Personality, (January 31, 2018).
• Gwendolyn Leachman, Media, Marriage, and the Construction of the LGBT Legal Agenda, Univ. of Wisconsin Legal Studies Research Paper No. 1437 (2018).
• Ryan T. Anderson, A Brave New World of Transgender Policy, (Harvard Journal of Law and Public Policy, Vol. 41, No. 1, 2018).
• Lloyd Hitoshi Mayer, Fiduciary Principles in Charities and Other Nonprofits, (Evan J. Criddle, Paul B. Miller, and Robert H. Sitkoff, eds., The Oxford Handbook of Fiduciary Law (Oxford University Press, 2018 Forthcoming)).

Recent Prisoner Free Exercise Cases

In Fox v. Lee, 2018 U.S. Dist. LEXIS 19402 (ND NY, Feb. 5, 2018), a New York federal magistrate judge recommended denying an inmate's motion for summary judgment in his suit claiming to be an adherent of the Anuaki religion and needing to wear his hair in a Mohawk cut for religious reasons.

In Blackbear v. Butler County Jail, 2018 U.S. Dist. LEXIS 19935 (D KA, Feb. 7, 2018), a Kansas federal district court rejected an inmate's complaint that for 3 weeks he was denied a special diet he needed for religious reasons.

In Sajous v. Withers, 2018 U.S. Dist. LEXIS 20191 (SD FL, Feb. 6, 2018), a Florida federal district court adopted a magistrate's recommendations (2018 U.S. Dist. LEXIS 20820, Jan. 16, 2018) and dismissed an inmate's complaint that a Haitian Flag Day ceremonial meal was canceled and that he is unable to practice his Vodoo religion.

In Williams v. Paramo, 2018 U.S. Dist. LEXIS 21191 (SD CA, Feb. 7, 2018), a California federal district court allowed an inmate to move ahead with his complaint that he was not allowed to participate in Ramadan in 2017.

In Icangelo v. County of Suffolk, 2018 U.S. Dist. LEXIS 21903 (ED NY, Feb. 8, 2018), a New York federal magistrate judge allowed an inmate to move ahead with this complaint that for 6 weeks he was not allowed to attend Jummah religious services. UPDATE: The magistrate's opinion was adopted by the court at 2018 U.S. Dist. LEXIS 32754 (Feb. 28, 2018).

Small Church Challenges Zoning Changes

Yesterday a small church in Laurel, Maryland filed a federal lawsuit challenging a zoning code change that prevents it from using property it purchased for a non-profit coffee shop and house of worship.  The complaint (full text) in Redemption Community Church v. City of Laurel, Maryland, (D MD, filed 2/9/2018), alleges that the zoning changes violate its right under RLUIPA and the 1st Amendment.  It alleges in part:

4. ... the City changed its zoning code to ban non-profit businesses and to require small churches (those located on less than one acre) to go through an onerous, costly, and uncertain special exception process before locating in the C-V Zone.

5. Churches that can afford more than an acre, and numerous secular assemblies or institutions can locate in the C-V Zone as of right....

7. The City has discriminated against Redemption Community Church, treated it less favorably than similarly-situated secular organizations, substantially burdened the Church’s free exercise of religion, and infringed on the Church’s right to free speech, peaceable assembly, and equal protection in violation of the Church’s federal and constitutional rights.

ADF issued a press release announcing the filing of the lawsuit.

Notre Dame Announces Another Change In Contraceptive Coverage

Notre Dame University on Wednesday announced another change in its policy regarding coverage for contraceptives by its employee health care plan.  Initially Notre Dame sued challenging the Obama administration's rule which required coverage, but allowed the coverage to be provided by the insurance company or third party administrator directly rather than by the University.  When the Trump administration broadened the exemption for religious non-profits so that Notre Dame could completely opt out of contraceptive coverage, the University chose to continue with the pre-existing coverage arrangement. This led to criticism from alumni and others. (See prior posting.)  Now in a letter to faculty and staff (full text), the University has announced a different approach-- one which makes a distinction between Catholic teaching regarding contraception and Church teaching regarding abortion (presumably including contraceptive drugs that prevent implantation of a fertilized ovum).  The letter from Notre Dame's president describes the policy as follows in part:

... [A]llowing the government-funded provision of drugs and services to continue through a third party administrator would provide access to contraceptives without University funding or immediate involvement. The government-funded program, however, includes the provision of abortion-inducing drugs, which are far more gravely objectionable in Catholic teaching. Stopping any access to contraceptives through our health care plan would allow the University to be free of involvement with drugs that are morally objectionable in Catholic teaching, but it would burden those who have made conscientious decisions about the use of such drugs and rely on the University for health care benefits.

I have reached the conclusion that it is best that the University stop the government-funded provision of the range of drugs and services through our third party administrator. Instead, the University will provide coverage in the University’s own insurance plans for simple contraceptives (i.e., drugs designed to prevent conception). The University will also provide in its plans funding for natural family planning options—options that do not use artificial contraceptives but employ natural methods for preventing conception. The University’s insurance plans (as opposed to the government-funded program) have never covered, and will not cover, abortion-inducing drugs.

In response to the new policy, Bishop Rhoades, Bishop of the Diocese of Fort Wayne-South Bend where Notre Dame is located, issued a statement yesterday (full text) welcoming parts of the new policy but strongly criticizing the University's decision to directly fund contraception coverage. [Thanks to Marty Lederman via Religionlaw for the lead.]