USCIRF Issues Report On Women's Rights and Religious Freedom

The U.S. Commission on International Religious Freedom yesterday issued a new report titled Women and Religious Freedom: Synergies and Opportunities.  Here is the "Overview" section of the 14-page report:

Observing the synergies between FORB [Freedom of Religion or Belief] and women’s equality has not been made particularly straightforward by the architecture of international human rights law. The human rights sources that address FORB and women’s rights to equality are distinct, and emerged from the lobbying of separate constituencies.

This textually distinct basis is compounded by the thrust of the research and advocacy in women’s rights, which strongly highlights that violations to women’s rights are carried out in the name of religion, or at least that violations to women’s rights are excused or postponed due to the intransigence of religious tradition and culture, whether perpetuated by state or non-state actors or a combination thereof. This serves to exacerbate the (mis)perception of a necessary and inevitable clash between women’s rights to equality and FORB.

The juxtaposition of these two allegedly conflicting rights is conceptually untenable and counterproductive.  It violates the universality of human rights in and of itself, since unless there is a holistic approach to human rights, its “indivisibility” and “interdependence” is denied. Furthermore, it fails to provide full redress to all, since it forces female claimants to “choose” to advance their right to either equality or FORB.

The purpose of this paper is to seek to identify synergies as well as complexities between FORB and the right to women’s equality through the analysis of various international human rights law documents impacting this topic.

Russian Supreme Court Appeals Panel Affirms Ban on Jehovah's Witness Activity

Tass and BBC News reported yesterday that the appellate panel of the Russian Supreme Court has rejected an appeal of an April 2017 finding by a single judge of the Supreme Court that the Jehovah's Witness national headquarters in St. Petersburg and its 395 local affiliates should be classified as "extremist" organizations. (See prior posting.) The presiding judge yesterday held:

The ruling passed by the Supreme Court of the Russian Federation on April 20 shall remain unchanged and the appeal shall not be entertained.

This affirms the ban on all Jehovah's Witness activity and the order that the organizations' property be seized by the state.  Jehovah's Witness respondents plan an appeal to the European Court of Human Rights.

Suit Challenges Hawaii's Notice Mandate For Pro-Life Pregnancy Centers

A suit was filed last week in Hawaii federal district court challenging Hawaii's SB 501 enacted earlier this year that requires "limited service pregnancy centers" to disseminate on-site to patients a notice that says:

Hawaii has public programs that provide immediate free or low-cost access to comprehensive family planning services, including, but not limited to, all FDA-approved methods of contraception and pregnancy-related services for eligible women. To apply online for medical insurance coverage, that will cover the full range of family planning and prenatal care services, go to mybenefits.hawaii.gov. Only ultrasounds performed by qualified healthcare professionals and read by licensed clinicians should be considered medically accurate.

The complaint (full text) in Calvary Chapel Pearl Harbor v. Chin, (D HI, filed 7/12/2017), alleges in part:

Plaintiffs are a non-profit, pro-life, Christian church operating a pregnancy center known as A Place for Women ..., and a national non-profit pro-life membership organization with 5 affiliates in Hawaii. Plaintiffs seek to provide help and pro-life information to women in unplanned pregnancies so that they will be supported in choosing to give birth....

The Act, however, imposes government compelled speech upon the Plaintiff pregnancy centers ... in ways that undermine the centers’ messages.

The complaint contends that the law infringes free speech and free exercise of religion, is unconstitutionally vague and violates federal statutory law that protects health care entities from being required to refer patients for abortions. Christian Times reports on the lawsuit.

British Survey of Anti-Semitic Crime Finds Overall Increase For 2016, But Fewer Violent Crimes

As reported by JTA, Britain's non-profit organization Campaign Against Antisemitism yesterday released its National Antisemitic Crime Audit-- 2016 in Review.  The report found 1,078 Anti-Semitic crimes in 2015, an increase of 14.9% from the prior year.  105 of these were violent crimes. Violent anti-Semitic crime though fell by 44.7% from 2015.  According to the report:

Ever since crime targeting British Jews began to surge in 2014, each successive year has set a new record for antisemitic crime, and each year fewer crimes have been charged. 2016 was the worst year on record for antisemitic crime, yet instead of protecting British Jews, the authorities prosecuted merely fifteen cases of antisemitic hate crime, including one solitary violent crime.

Kansas Court Says No Appeal On Vaccination Order For Children In State Custody

In an unpublished opinion, a Kansas state appeals court appears to have held that a mother who has religious objections to vaccination has no right to appeal a trial court order that her children, who have previously been placed in temporary custody of the state, receive physician-recommended vaccinations.  In In the Interest of M.H.D., K.S.D., and O.H.D., (KA App., July 14, 2017), the court held that while the mother was given a hearing on the issue at the trial court level, the trial court order entered more than 30 days after the children's placement does not fit within the category of orders over which Kansas statutes give the Court of Appeal appellate jurisdiction.

Suit Challenges Christian-Only Ownership Rules In Chautauqua Cottage Community

A discrimination lawsuit was filed in a Michigan federal district court last week against the Bay View Association, a Lake Michigan summer community with roots in the Chautauqua Movement. The complaint (full text) in Bay View Chautauqua Inclusiveness Movement v. Bay View Association of the United Methodist Church, (WD MI, filed 7/10/2017), challenges provisions in the Association's rules that limit cottage ownership to practicing Christians.  The suit contends that this is religious discrimination that violates the U.S. and Michigan constitutions, the federal Fair Housing Act, and Michigan's Elliott-Larsen Civil Rights Act.  Petoskey (MI) News-Review reports on the lawsuit.

Recent Articles of Interest

Fom SSRN:

• Ronald J. Colombo, Religious Conceptions of Corporate Purpose, (74 Wash.& Lee L. Rev. 813 (2017)).
• Helen L. Norton, Government Speech and the War on Terror , (86 Fordham L. Rev. (2017 Forthcoming)).
• Heidi Kitrosser, Free Speech, Higher Education, and the PC Narrative, (101 Minnesota L.Rev. 1987 (2017)).
• Martin H. Redish & Matthew Fisher, Terrorizing Advocacy and the First Amendment: Free Expression and the Fallacy of Mutual Exclusivity, (Fordham Law Review, Forthcoming).

From SmartCILP:

• Symposium: The First Amendment Post-Obergefell: The Clash of Enumerated and Unenumerated Rights. Remarks by Justice Daniel Kelly; articles by Barry W. Bussey, Travis Weber, J. Caleb Dalton, Bill Piatt. 29 Regent University Law Review 183-308 (2016-2017).

Recent Prisoner Free Exercise Cases

In In re Ohio Execution Protocol Litigation, 2017 U.S. Dist. LEXIS 107468 (SD OH, July 12, 2017), an Ohio federal magistrate judge rejected RLUIPA and free exercise challenges to the provision in Ohio's Execution Protocol that allows the warden to limit a death row inmate's last words statement if it contains language intentionally offensive to the execution witnesses. Plaintiffs claimed that this might limit them from including a prayer for atonement in their last words because witnesses might find the prayer offensive.

In Crawley v. Parsons, 2017 U.S. Dist. LEXIS 107775, (WD VA, July 12, 2017), a Virginia federal district court allowed a House of Yahweh inmate to move ahead with his claim against the prison chaplain that he was not allowed to participate in the 2015 Passover observance. His claims against other defendants for this, and his claims regarding observance of the Feast of Tabernacles were dismissed.

In Crutcher v. Bolling, 2017 U.S. Dist. LEXIS 106778, (ND AL, July 11, 2017), an Alabama federal district court adopted a magistrate's recommendations (2017 U.S. Dist. LEXIS 107832, May 18, 2017), and dismissed without prejudice an inmate's complaint that conditions of solitary confinement denied him access to church.

Quebec Tribunal Finds Discrimination When Jewish Owner Enforces Jewish Practice On Jewish Employees

In Canada, Quebec's Tribunal for Human Rights in a decision last month held that the Jewish owner of a hair salon violated the religious rights of a Jewish employee when she decided that none of the Jewish employees should work on Saturdays, the Jewish Sabbath.  Hair stylist  Richard Zilberg wanted to include Saturdays in his 6-day work week since this was the busiest day of the week, but Spa Liv Zen owner Iris Gressy prohibited it. Zilberg was fired after he revealed to a client the reason he was no longer available on Saturdays.  In Commission on Human Rights and Youth Rights v. 9220-3454 Quebec, Inc., (QCTDP, June 27, 2017), the Tribunal held that this violated Zilberg's rights under Quebec's Charter of Human Rights and Freedoms to equality in employment, freedom of conscience and religion, and dignity and respect for his private life.  According to the Tribunal:

[Zilberg] stated that the Defendants’ decision amounted to a hurtful determination of how he should practice his religion. He felt outraged that the Defendants could ... impose upon him a religious practice that violates his rights to freedom of conscience and religion.

... [H]e felt no less true to his faith because, for various personal reasons, he did not conform to the religious practice of observing the Sabbath; he in fact celebrated other important Jewish holidays with his family.

... Consequently, the interdiction to work on Saturdays imposed upon Mr. Zilberg genuinely affected him as he practiced his religion according to his own personal values.

The Tribunal awarded Zilberg $6,006 in material damages and $4,000 for the moral prejudice he suffered, and $2,500 in punitive damages. Neither Cressy nor her business contested the claims against them and neither were present at the Tribunal hearing. Canadian Press this week reported on the decision.

SCOTUS Review Sought In Florist's Refusal To Sell For Same-Sex Wedding

A petition for certiorari (full text) has been filed with the U.S. Supreme Court in Arlene's Flowers, Inc. v. State of Washington, (cert. filed, 7/14/2017).  In the case, the state of Washington's Supreme Court held that a florist's religiously-motivated refusal to sell arranged flowers for a same-sex wedding violates the Washington Law Against Discrimination. (See prior posting.) The petition for review asks the U.S. Supreme Court to combine this case with the Masterpiece Cake Shop case in which it has already granted review (see prior posting), or to at least hold this case until it decides Masterpiece Cake Shop. Tri-City Herald reports on the cert. petition.

Establishment Clause Challenge To Portrayal of Hinduism In California Schools May Proceed

In California Parents for the Equalization of  Educational Materials v. Torlakson, (ND CA, July 13, 2017), plaintiffs challenge the treatment of Hinduism in the Standards and the Framework for history and social science courses taught in the California public schools.  They claim discrimination against Hinduism as compared to the treatment of other religions.  A California federal district court last week held that plaintiffs had stated a claim under the Establishment Clause.  The court relied on impressions of one sixth-grader to support its conclusion that the curriculum may have favored other religions over Hinduism:

The primary message that sixth grade student received was that her teacher and classmates considered Hinduism “cruel,” “primitive and unjust,” and that Hinduism had not been treated with “fairness and dignity.” ... The student formed this impression based in large part on the Framework’s content, which emphasized that the caste system was a part of Hinduism. 

The court however dismissed plaintiffs' equal protection challenge, holding that the equal protection clause may not be used to challenge the content of school curriculum.  The court also rejected plaintiffs' claims of discrimination in the process of adopting the curriculum Framework, as well as free exercise and substantive due process challenges. Courthouse News Service reports on the decision.

Christian Refugees To U.S. Outnumber Muslim Refugees So Far In 2017

A Pew Research Center analysis released last week shows that during the first months of the Trump Administration, Christian refugees admitted to the United States outnumber Muslim refugees. This is a change from last year.  During fiscal 2016, of refugees admitted, 46% were Muslim and 44% were Christian. But from Jan. 21 until June 30 of this year, 50% are Christian (9,598), 38% are Muslim (7,250), 11% are other religions and 1% have no religious affiliation.  The difference is in part accounted for by shifts in the countries of origin of admitted refugees.  During the first months of the Trump Administration, the largest number of refugees (3,235) came from the Democratic Republic of the Congo.

2nd Circuit: Ministerial Exception Requires Dismissal of Sex Discrimination Claim By Catholic School Principal

In Fratello v. Archdiocese of New York, (2d Cir., July 14, 2017), the U.S. 2nd Circuit Court of Appeals held that the principal of a Catholic elementary school is barred by the "ministerial exception" doctrine from pursuing her claim that gender discrimination accounted for the school's refusal to renew her contract. The court said in part:

... [T]he plaintiffʹs claims are barred because she is a minister within the meaning of the exception.  Although her formal title was not inherently religious, the record reflects that, as part of her job responsibilities, she held herself out as a spiritual leader of the school and performed many religious functions to advance its religious mission.

The court noted some of the tensions inherent in the doctrine:

The irony is striking.  We rely in part on Fratelloʹs supervisorsʹ and faculty officialsʹ prior praise of her performance of her religious responsibilities as proof that she could be fired for the wrong reason or without any reason at all.... This case thus lies at the center of the tension between an employerʹs right to freedom of religion and an employeeʹs right not to be unlawfully discriminated against. The ministerial exception, as we understand it to be interpreted by the Supreme Court, resolves that tension in this case against Fratello and in favor of the Archdiocese, the Church, and the School.

New York Law Journal, reporting on the decision, says plaintiff will seek en banc review.

Attorney General Sessions Speaks At Hate Crimes Summit

On June 29, Attorney General Jeff Sessions delivered remarks (full text) at the Civil Rights Division's Hate Crimes Summit.  Sessions focused on recent hate crime arrests and convictions, saying in part:

The Department has prosecuted a number of high-profile hate crimes cases this year as we seek to bring criminals to justice.

In March ... a suspect was found and arrested in Israel for allegedly making threatening phone calls to Jewish community centers, inflicting terror across the nation.  In April, we brought federal charges against him, and our investigation into these acts as possible hate crimes continues....

Just last week, we sought and a federal grand jury returned an indictment against a man in Texas for burglary and arson of the Victoria Islamic Center.   He now faces up to 40 years in federal prison.   Earlier this month, a man in Tennessee was sentenced to over 19 years in prison for trying to recruit people to help him burn down a mosque in a small town in New York.   Also this month, the Department indicted a man from Kansas for shooting three men at a bar because he thought they were of Persian origin.... 

We have and will continue to enforce hate crime laws aggressively and appropriately where transgendered individuals are victims.  Last month, Joshua Brandon Vallum was sentenced to 49 years in prison for assaulting and murdering Mercedes Williamson.   This is the first case prosecuted under the Hate Crimes Prevention Act involving the murder of a transgender person.

I personally met with the Department’s senior leadership and the Civil Rights Division to discuss a spate of murders around the country of transgender individuals.   I have directed the Civil Rights Division to work with the United States Attorney’s Offices and the Federal Bureau of Investigation to identify ways the Department can support the state and local law enforcement authorities investigating these incidents and to determine whether federal action would be appropriate.

4th Circuit En Banc: Rowan County's Invocation Practice Violates Establishment Clause

In Lund v. Rowan County, North Carolina, (4th Cir., July 14, 2017), the U.S. 4th Circuit Court of appeals sitting en banc held by a 10-5 vote that the prayer practices of the Rowan County Board of Commissioners violates the Establishment Clause. Judge Wilkinson’s 42-page majority opinion reads in part:

We conclude that the Constitution does not allow what happened in Rowan County. The prayer practice served to identify the government with Christianity and risked conveying to citizens of minority faiths a message of exclusion. And because the commissioners were the exclusive prayer-givers, Rowan County’s invocation practice falls well outside the more inclusive, minister-oriented practice of legislative prayer described in Town of Greece. Indeed, if elected representatives invite their constituents to participate in prayers invoking a single faith for meeting upon meeting, year after year, it is difficult to imagine constitutional limits to sectarian prayer practice.

The great promise of the Establishment Clause is that religion will not operate as an instrument of division in our nation. Consistent with this principle, there is a time- honored tradition of legislative prayer that reflects the respect of each faith for other faiths and the aspiration, common to so many creeds, of finding higher meaning and deeper purpose in these fleeting moments each of us spends upon this earth. Instead of drawing on this tradition, Rowan County elevated one religion above all others and aligned itself with that faith. It need not be so. As the history of legislative invocations demonstrates, the desire of this good county for prayer at the opening of its public sessions can be realized in many ways that further both religious exercise and religious tolerance.

Judge Motz, joined by Judges Keenan and Harris, filed a concurring opinion emphasizing that the majority’s holding is consistent with Supreme Court precedent in Marsh and Town of Greece cases.

Judge Niemeyer, joined by Judge Shedd, filed a dissenting opinion arguing that the majority opinion “actively undermines the appropriate role of prayer in American civic life.”  Judge Agee also filed a dissenting opinion which was joined by Judges Niemeyer, Traxler, Shedd, and Diaz, arguing that the majority opinion is “irreconcilable” with Marsh and Town of Greece.  Charlotte Observer reports on the decision.

District Court Broadens Those Still Allowed Entry Under Trump's Travel Ban [UPDATED]

In State of Hawai'i v. Trump, (D HI, July 13, 2017), a Hawaii federal district court held that the government has too narrowly interpreted the U.S. Supreme Court's order that precludes enforcement of President Trump's second travel ban executive order against foreign nationals who have a bona fide relationship with a person or entity in the United States.  The district court held that qualifying close familial relationships include grandparents, grandchildren, brothers-in-law, sisters-in-law, aunts, uncles, nieces, nephews, and cousins of persons in the United States.  It also held that a refugee seeking entry has a bona fide relationship with a U.S. entity when a resettlement agency has given the refugee assurance that it will provide, or arrange for, reception and placement services to that refugee.  A similar relationship exists for those in the Lautenberg Program for refugee admissions. New York Times reports on the decision.

UPDATE:  As reported by SCOTUSblog, on July 14, the Trump Administration asked the Supreme Court to clarify that the district court's decision is an incorrect interpretation of the Supreme Court's order.  The Supreme Court ordered plaintiffs in the case to file a response to the government's motion for clarification by noon on July 18.

Michigan Outlaws FGM In Package of Bills Signed By Governor

On July 11, Michigan Governor Rick Snyder signed a series of bills dealing with female genital mutilation. As summarized by the governor's press release:

The bill package amends various public acts to prohibit and prosecute those who perform female genital mutilation. Specifically, the bills prohibit performing genital mutilation, create criminal penalties for offenders, provide sanctions against healthcare licensees, require increased public education surrounding the topic and extend criminal and civil statutes of limitations.

One of the bills, HB 4636, outlaws FGM and provides:

It is not a defense to prosecution under this section that the person on whom the operation is performed, or any other person, believes that the operation is required as a matter of custom or ritual, or that the person on whom the operation is performed, or that person’s parent or guardian, consented to the operation.

HB 4642 requires the Department of Health and Human Services to:

Develop and administer an educational and outreach program that, at a minimum, informs the public, including members of new immigrant populations to this state that commonly practice female genital mutilation and health care providers, of the health risks and emotional trauma inflicted by the practice of female genital mutilation and the criminal penalties for female genital mutilation.

Vatican-Approved Article Criticizes Conservative Catholic Support of U.S. Evangelical Political Agenda

The Washington Post today reports that an article in the influential Jesuit magazine La Civilta Cattolica-- whose content is approved by the Vatican Secretariat of State-- is critical of conservative Catholic support for the evangelical political agenda in the United States. The article is authored by the journal's editor and by a Presbyterian pastor who edits of the Argentine edition of the Vatican newspaper, L’Osservatore Romano.  The article (full text in Italian) whose title translates to Evangelical Fundamentalism and Catholic Integralism: A Surprising Ecumenism, is summarize by the Post:

The Rev. Antonio Spadaro, editor of the influential Jesuit journal La Civilta Cattolica, said a shared desire for political influence between “evangelical fundamentalists” and some Catholics has inspired an “ecumenism of conflict” that demonizes opponents and promotes a “theocratic type of state.”

Spadaro also took aim at conservative religious support for President Donald Trump, accusing activists of promoting a “xenophobic and Islamophobic vision that wants walls and purifying deportations.”...

Spadaro specifically criticized the far-right Catholic American media organization ChurchMilitant.com. Spadaro said the media outlet framed the presidential election as a “spiritual war” and Trump’s ascent to the presidency as “a divine election.”

Spadaro’s critique also appears aimed in part at America’s Catholic bishops, who have fought for religious exemptions from gay marriage laws and other measures church leaders consider immoral, and have often characterized those with opposing views as wishing to persecute Christians.

AG Sessions Speaks To Conservative Christian Advocacy Group

On July 11, Attorney General Jeff Sessions spoke to a meeting sponsored by Alliance Defending Freedom, a conservative Christian advocacy organization.  The full text of his remarks, which focused on religious liberty, was published by The Federalist yesterday.  Here are some excerpts:

The challenges our nation faces today concerning our historic First Amendment right to the “free exercise” of our faith have become acute. I believe that this recent election was significantly impacted by this concern and that this motivated many voters. President Trump made a promise that was heard. In substance, he said he respected people of faith and he promised to protect them in the free exercise of their faith. This promise was well received.

.... America has never thought itself to be a theocracy. Our founders, at least the most articulate of them, believed our government existed as a protector of religious rights of Americans that were essential to being a created human being.

The government did not exist to promote religious doctrine nor to take sides in religious disputes.... The government’s role was to provide the great secular structure that would protect the rights of all citizens to fulfill their duty to relate to God as their conscience dictated and to guarantee the citizen’s right to exercise that faith.....

The president has ... directed me to issue guidance on how to apply federal religious liberty protections. The department is finalizing this guidance, and I will soon issue it.

The guidance will also help agencies follow the Religious Freedom Restoration Act. Congress enacted RFRA so that, if the federal government imposes a burden on somebody’s religious practice, it had better have a compelling reason....

Under this administration, religious Americans will be treated neither as an afterthought nor as a problem to be managed. The federal government will actively find ways to accommodate people of all faiths. The protections enshrined in the Constitution and our laws protect all Americans, including when we work together, speak in the public square, and when we interact with our government. We don’t waive our constitutional rights when we participate fully in public life and civic society.

This administration, and the upcoming guidance, will be animated by that same American view that has led us for 241 years: that every American has a right to believe, worship, and exercise their faith in the public square....

Novel Facts Do Not Assure Qualified Immunity In Prisoner Suit

In Parkell v. Senato, (3rd Cir.,  July 11, 2017), the U.S. 3rd Circuit court of Appeals vacated a Delaware federal district court's grant of qualified immunity to prison officials who refused an inmate's request for a kosher diet.  The court said in part:

We do not doubt that Parkell’s belief system—which he characterizes as “Jewish/Wicca”—is novel. But “officials can still be on notice that their conduct violates established law even in novel factual circumstances.”...

AP reports on the decision.