Friday, November 10, 2017

NY Voters Approve Kiryas Joel Becoming Separate Town

JTA reports on Tuesday's election results in the town of Monroe, New York where voters by over an 80% majority approved a proposal that will allow the Village of Kiryas Joel to secede and become its own separate Yiddish speaking town. The vote resolves tensions growing out of Kiryas Joel's annexation of land from Monroe. (See prior posting.)  Kiryas Joel was founded by Satmar Rebbe Joel Teitelbaum. The new town will be named Town of Palm Tree, an English translation of "Teitelbaum".  It will be New York's first new town in 35 years.

Judge Says Suit Charging Campus Anti-Semitism Should be Refiled With Focus On Current Situation

Jewish News of Northern California reports that after a 57-minute pretrial hearing in Mandel v. Board of Trustees of the California State University, federal district court Judge William Orrick said he would dismiss the case with leave to amend. The suit alleges that  "a consistent pattern of anti-Jewish animus has emerged" at San Francisco State University since 1968. (See prior posting.)  The judge instructed that an amended complaint should focus on the current situation at SFSU, not on a 50-year history of anti-Semitism there.

9th Circuit Hears Oral Arguments In School Board Invocation Case

Yesterday the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in Freedom From Religion foundation v. Chino Unified School District. In the case, a California federal district court held that invocations at school board meetings are governed by case law relating to school prayer, not by the line of cases on legislative prayer.  Courthouse News Service reports on the oral arguments.

Missouri Offers State Employees Health Policies That Exclude Abortion, Contraception, Sterilization

As previously reported, last year a Missouri federal district court in Wieland v. HHS enjoined the federal government from enforcing the Affordable Care Act against a state legislator who, on religious grounds, objected to participating in a healthcare plan for himself, his wife and his daughters that provides coverage for contraceptives.  Now according to a press release from the Thomas More Society, the state of Missouri has begun to offer all state employees the option of selecting a health insurance plan that excludes coverage for abortion, contraceptives or sterilization.

Thursday, November 09, 2017

Marked-Up House Version of Tax Bill Includes Expanded, But Time-Limited, Partial Repeal of Johnson Amendment

The House Ways and Means Committee today during its markup of HR 1, the Tax Cuts and Jobs Act, approved an amendment (full text) that, if finally adopted, will expand the partial repeal of the Johnson Amendment that was in the original version, but will revert to the current Johnson Amendment after 5 years. (See prior posting.)  The original version would have permitted houses of worship to include political endorsement in sermons by clergy.  The amended version that now goes to the full House expands that to allow political endorsements in statements by any Section 501(c)(3) organization when the statement is made in the ordinary course of its exempt activities without incurring additional expense.  Here is the amended text of the section, marked up by me to show additions and deletions from the original HR 1:
SEC. 5201. CHURCHES 501 (c)(3) ORGANIZATIONS PERMITTED TO MAKE STATEMENTS RELATING TO POLITICAL CAMPAIGN IN ORDINARY COURSE OF RELIGIOUS SERVICES AND ACTIVITIES.
(a) IN GENERAL.—Section 501 is amended by adding at the end the following new subsection:
"(s) SPECIAL RULE RELATING TO POLITICAL CAMPAIGN STATEMENTS OF CHURCHES, INTEGRATED AUXILIARIES, ETC. ORGANIZATIONS DESCRIBED IN SUBSECTION (c)(3)
(1) IN GENERAL.—For purposes of subsection (c)(3) and sections 170(c)(2), 2055, 2106, 2522, and 4955, an organization described in section 508(c)(1)(A) shall not fail to be treated as organized and operated exclusively for a religious purpose purpose described in subsection (c)(3), nor shall it be deemed to have participated in, or intervened in any political campaign on behalf of (or in opposition to) any candidate for public office, solely because of the content of any homily, sermon, teaching, dialectic, or other presentation made during religious services or gatherings, but only if the preparation and presentation of such content content of any statement which
(A) is in is made in the ordinary course of the organization’s regular and customary activities in carrying out its exempt purpose, and
(B) results in the organization incurring not more than de minimis incremental expenses.
 (2) TERMINATION.—Paragraph (1) shall not apply to taxable years beginning after December 31, 2023. 
(b) EFFECTIVE DATE.—The amendments made by this section shall apply to taxable years ending after the date of the enactment of this Act beginning after December 31, 2018."
[Thanks to Samuel Brunson via Religionlaw for the lead.] 

Republican Senators Call For Roy Moore To Withdraw From Senate Race After Sex Charges

According to the Washington Post, a number of Republican senators are calling for Roy Moore, Alabama candidate for the U.S. Senate, to withdraw if charges in an earlier Washington Post article today are true.  The article, based on detailed interviews with named accusers, says that Moore engaged in improper sexual contact with a 14-year old girl nearly 40 years ago when Moore was a 32 year-old assistant district attorney.  Three other women say Moore tried to date them when they were between 16 and 18 years old.  Moore, well known for his battles defending a Ten Commandments monument and opposing same-sex marriage, says that the charges "are completely false and are a desperate political attack by the National Democrat Party and the Washington Post."  The special election in Alabama in which Moore faces Democratic nominee Doug Jones is scheduled for Dec. 12.

UPDATE: Defending Moore, Alabama State Auditor Jim Zeigler told the Washington Examiner:  "[T]ake Joseph and Mary. Mary was a teenager and Joseph was an adult carpenter. They became parents of Jesus. There’s just nothing immoral or illegal here. Maybe just a little bit unusual."

Italian Artist Charged With Criminal Blasphemy

The art blog Hyperallergic this week reports that in Italy, the anonymous artist known as Hogre was arrested and charged with publicly insulting religion in violation of Sec. 403 (Criminal Blasphemy) of Italy's Criminal Code.  According to the blog's report:
Hogre was one of two artists who, on June 1 of this year, placed satirical posters in bus stop advertising spaces in the Italian capital. Hogre’s poster “Ecce homo erectus” depicts Jesus with a conspicuous erection, resting one hand on the head of a praying, kneeling child. This was a response to sexual abuse charges against Cardinal Pell, the third highest-ranking Vatican official.
If convicted, the artist could face a fine of €1000 to €5000.  Hyperallergic's blog post includes a photo of the offending poster.

House Holds Hearing On Campus Anti-Semitism

On Nov. 7, the House Judiciary Committee held a hearing titled Examining Anti-Semitism on College Campuses.  A video of the full hearing and written transcripts of the prepared testimony of nine witnesses are available on the committee's website.  As reported by AP, following the hearing Rep. Jamie Raskin (D-MD) proposed legislation to expand Title VI of the 1964 Civil Rights Act to bar discrimination on the basis of religion by programs receiving federal financial assistance.  Currently Title VI only bars discrimination on the basis of race, color or national origin.

Wednesday, November 08, 2017

Organization Launches Annual "Friend or Foe Christmas" Campaign

The advocacy organization Liberty Counsel announced yesterday that it is launching its 15th annual "Friend or Foe Christmas Campaign."  Its campaign attempts to counter removal of the celebration of Christmas in schools, on public property and by retailers.  It has made available a Legal Memorandum on Public Celebration of Religious Holidays.

Indonesian Constitutional Court Requires Recognition of Indigenous Religions

According to an AP report, yesterday Indonesia's Constitutional Court handed down a ruling that will require recognition of adherents of the country's indigenous religions.  In the past, Indonesian law has required citizens in obtaining an identity card to select one of six religions-- Islam, Protestantism, Catholicism, Buddhism, Hinduism or Confucianism.  If they selected none of these, they risked prosecution under Indonesia's blasphemy law for being an atheist. Yesterday's ruling concluded that this arrangement is discriminatory.  According to the Jakarta Globe: "The Court recommended the creation of a seventh category – 'believers of the faith,' or penghayat kepercayaan.a'"

Suit Challenges Quebec's New Anti-Niqab Law

As announced by the Canadian Civil Liberties Association, a suit was filed in a Quebec Superior Court yesterday challenging the constitutionality of Sec. 10 of Quebec's recently enacted Religious Neutrality Law (see prior posting).  The law provides that public sector employees in carrying out their functions may not cover their faces, and that private citizens must have their faces uncovered when receiving public services.  The complaint (full text) in National Council of Canadian Muslims v. Attorney General of Quebec, (Que. Super., filed 11/7/2017) contends that Sec. 10 of the violates freedom of religion and equality protections of the Quebec and Canadian Charters of Rights and Freedoms.  It asserts that the Act's requirement particularly impacts Muslim women.

Notre Dame, In About Face, Will Continue Contraceptive Coverage Under Accommodation Rules

Reversing an announcement made last month (see prior posting), Notre Dame University yesterday told employees that they will continue to receive health insurance contraceptive coverage.  Under accommodation rules developed by the Obama Administration, the coverage is provided without cost by the insurance company directly to employees, without Notre Dame paying for it.  As reported by AP, the university thought that its insurer would end the no-cost coverage now that changes in Affordable Care Act rules allow religious non-profits to opt out of objectionable coverage. However the insurer has indicated that it will continue to provide the coverage.  A Notre Dame spokesman said:
Recognizing ... the plurality of religious and other convictions among its employees, [the University] will not interfere with the provision of contraceptives that will be administered and funded independently of the University.
In a similar reversal, Notre Dame also told students yesterday that after August they will still be able to obtain contraceptive coverage by electing it separately through their student health plan.

UPDATE: Since Notre Dame has a self-insured plan, references to "insurer" should be read as a reference to the third party administrator and benefits manager.  Sycamore Trust, an alumni group dedicated to preserving Notre Dame's Catholic identity strongly criticized the university's action.

6th Circuit Dismisses Challenge To Michigan Procedures For Vaccination Exemption

In Nikolao v. Lyon, (6th Cir., Nov. 7, 2017), the U.S. 6th Circuit Court of Appeals ordered dismissal of a challenge to Michigan's procedures for granting school children a religious exemption from vaccination requirements. In order to obtain an exemption, a parent is required to visit the local health department and explain the basis for the objection.  A health worker must certify that the parent has received education on the benefits of immunizations and the risks involved in not receiving them.  Also the state has published a series of "Waiver Notes" containing responses to parental objections, including religious objections.  The court held that plaintiff, a mother who asserted her Catholic religious beliefs as the basis for the request, lacked standing to raise a free exercise claim, saying in part:
While Nikolao has presented facts suggesting that she was exposed to religious information with which she did not agree, she has given no indication that the information coerced her into doing or not doing anything. Nikolao went to the WCDH to receive a vaccination exemption and left with one.
The court found that plaintiff did have standing to assert an Establishment Clause claim, but concluded that no Establishment Clause violation was shown, saying in part:
The Certification Rule only requires local health workers to have a conversation with objecting parents.... As part of that conversation, the state may offer its own take on a parent’s objections. But the Certification Rule does not allow state officials to withhold an exemption based on the legitimacy of those objections. Were that the case, the outcome here may very well be different....
Similarly, the Religious Waiver Note does not violate the Establishment Clause. The Note outlines a health department worker’s available responses to religious objections concerning vaccination. To be sure, this document contains information about specific religions.... But, again, the purpose of providing this information is secular.
[Thanks to Tom Rutledge for the lead.]

Tuesday, November 07, 2017

USDA Memo Gives Meat Packing Plants Broad Religious Speech Protection

ADF reported yesterday on a new Guidance Memorandum on First Amendment Policy issued by the U.S. Department of Agriculture Office of Food Safety (full text), and a related Q&A webpage.  While the Guidance Memorandum appears to flow from President Trump's Executive Order Promoting Free Speech and Religious Liberty issued in May (see prior posting), and a follow-on Memo from the Secretary of Agriculture, it also resolves a particular dispute relating to a Michigan meat-packing plant. Federal meat inspectors working at the plant had removed an article placed on the plant's break room table that expressed religious views opposed to same-sex marriage.  Apparently a USDA official, invoking an Obama-era Policy Statement on sexual harassment,  had threatened to withdraw all its inspectors if the article reappeared.  The new Guidance Memorandum gives broad permission for employees and supervisors at meat plants to express religious views, saying in part:
Employees are permitted to engage in religious expression directed at fellow employees and may attempt to persuade other employees of the correctness of their views.  Religious views should be treated the same as any other comparable speech not involving religion. Proselytizing is as entitled to constitutional protection as any other form of speech.
Supervisors are also free to engage in speech about religion.  While supervisors may not impose unfair work conditions on employees who do not share their religious beliefs, their personal views concerning religion are still protected by the First Amendment.  As a result, supervisors may also express their sincere religious views without fear of sanctions.
Some employers in facilities that are inspected by USDA may wish to display religious icons, religious pamphlets, or faith-based messages in publicly available work areas or on public websites.  Others may support employee religious organizations and openly express their own religious beliefs or practices in the workplace.  USDA employees must act to avoid the limiting or chilling of protected speech.
The Guidance Memorandum adds that USDA employees who believe they are subject to discrimination, harassment or intimidation may still exercise their rights.

University's Anti-Harassment Policy Upheld Over Prof's Free Speech Claims

In Board of Trustees of Purdue University v. Eisenstein, (IN App., Oct. 30, 2017), and Indiana Court of Appeals held that a trial court should have dismissed a lawsuit brought by an associate professor at Purdue University Calumet against the university, its board of trustees and several of its faculty members.  Associate Professor Maurice Eisenstein was accused by several students and faculty of making anti-Muslim and anti-Black statements in his Introduction to Judaism class and in Facebook postings.  A number of students and faculty, as well as the Muslim Student Association, filed harassment complaints against Eisenstein.  Subsequently Eisenstein made derogatory comments to two of the faculty who had complained, and they filed additional charges of retaliation.  The university ultimately upheld only the retaliation claims.  Eisenstein then sued claiming, among other things, that the university's retaliation policy is unconstitutionally vague and that his free speech rights were infringed. He also alleged breach of contract and other claims. In a 42-page opinion, the court rejected Eisenstein's claims on a number of grounds.  Inside Higher Ed reports on the decision.

Canada's Supreme Court Hears Arguments In Ecclesiastical Abstention Case

On Nov. 2, the Supreme Court of Canada heard oral argument (video of full oral arguments) in Judicial Committee of the Highwood Congregation of Jehovah's Witnesses v. Wall.  Links to the briefs of the parties and a number of intervenors are also available onlineReligiousLiberty.tv reports on the case.  In the case, the Alberta Court of Appeals in a 2-1 decision held that Canadian civil courts have jurisdiction to review a formal decision by a Jehovah's Witness congregation to disfellowship one of its members. (See prior posting.)  [Thanks to Michael Peabody for the lead.]

Monday, November 06, 2017

Trump Sends Holiday Greetings To Sikhs

On Nov. 4, the White House released a statement (full text) from President Trump sending "warm wishes to Sikh Americans and Sikhs around the world as they celebrate the birth anniversary of Guru Nanak Devji, the founder and first guru of Sikhism."

Recent Articles and Books of Interest

From SSRN:
From SmartCILP:
Recent and Forthcoming Books:

Sunday, November 05, 2017

Citizenship Applicant Challenges "So Help Me God" In Naturalization Oath

Represented by activist Michael Newdow, a French citizen who is a permanent U.S. resident living in Massachusetts filed suit last week challenging the inclusion of the phrase "so held me God" in the Naturalization Oath. The complaint (full text) in Perrier-Bilbo v. Congress of the United States, (D MA, filed 11/2/2017), contends that the presence of these words in the oath violates the Establishment Clause, free exercise clause, RFRA, as well as plaitiff's due process and equal protection rights.  The citizenship application by Plaintiff, who is an atheist, was approved in 2009.  When she objected to the form of the oath at that time, was told that she could either participate in the oath ceremony and omit the “so help me God” language, or schedule a private oath ceremony where the government would not use that phrase. Neither of those alternatives are acceptable to her.  Her complaint contends in part:
By its very nature, an oath that concludes “so help me God” is asserting that God exists..... Moreover, even if the current oath were constitutional, the government of the United States has rendered Plaintiff, on the basis of her sincerely held religious beliefs, unable to take the oath that all others take. This is unfair, demeaning and improper. Plaintiff is unwilling to start her new life as an American citizen in some second-class status solely because she chooses to follow her religious precepts. Under the principles of equal protection, she demands the right to experience the elation, the pride, the sense of camaraderie, and the sense of belonging, which comes from joining her fellow new citizens as an equal participant in the naturalization oath ceremony.
Sacramento Bee reports on the lawsuit.

Recent Prisoner Free Exercise Cases

In Bethel v. Jenkins, 2017 U.S. App. LEXIS 22061 (6th Cir., Sept. 22, 2017), the 6th Circuit held that a district court correctly dismissed an Establishment Clause challenge, but should not have dismissed a free speech and procedural due process challenge, to a policy that barred inmate from receiving printed material ordered by a third party even directly from an approved vendor.

In Hargrove v. Holley, 2017 U.S. Dist. LEXIS 180284 (SD OH, Oct. 31, 2017), an Ohio federal magistrate judge recommended dismissal of an inmate's claim that compelled schooling without an Islamic curriculum violates his free exercise rights.

In Harris v. Cooper, 2017 U.S. Dist. LEXIS 181249 (ND CA, Nov. 1, 2017), a California federal magistrate judge allowed an inmate to move ahead against certain defendants with his claim that in a cell search his religious materials were confiscated as retaliation and part of a conspiracy to deny him parole because he is a Muslim.

In Maciejka v. Williams, 2017 U.S. Dist. LEXIS 182842 (SD L, Nov. 2, 2017), a Florida federal magistrate judge recommended ordering plaintiff, a former inmate, to file an amended complaint if he wishes to move ahead with his rambling allegations that while confined he was kept from attending Catholic religious services, and could not celebrate holidays, see chaplains or priests or keep religious publications and religious items such as a rosary and scapular.