Saturday, March 17, 2018

NYPD Sued Over Mugshot Policy For Muslim Women

AP reported yesterday on a lawsuit filed in federal district court in New York against the New York Police Department by two Muslim women who were forced to remove their hijabs to pose for mugshots.  While the NYPD says that its policy allows persons wearing religious head coverings to be taken to  a separate more private facility before removing the head covering to be photographed, apparently that policy was not followed in the case of the plaintiffs in this lawsuit. The women along with the advocacy group Turning Point for Women and Families brought the lawsuit as a class action. [Thanks to Tom Rutledge for the lead.]

Friday, March 16, 2018

Judge Suspended, In Part For Refusal To Conduct Same-Sex Weddings

In In re Day, (OR Sup. Ct., March 15, 2018), the Oregon Supreme Court in a 91-page opinion suspended state circuit court judge Vance D. Day from his judicial office for three years without pay. The state's Commission on Judicial Fitness and Disability had recommended the harsher penalty of removal from office. (Commission report).  A number of unrelated charges were involved; the court concluded that six of the counts had been proven.  One of those was described as follows by the court in its press release on the case:
Count 12 concerned a change in respondent's chambers relating to marriage requests that he received after issuance of a federal court ruling, in May 2014, that had invalidated Oregon's constitutional ban on same-sex marriage. Before that ruling, respondent had made himself available to solemnize marriages. After that ruling, he told his staff that, upon receiving any marriage request, they should check for any personal gender information available in the court's case register system, to try to determine whether the request involved a same-sex couple. If so, they should tell the couple that he was not available on the requested date or otherwise notify him so that he could decide how to proceed. If the request were from an opposite-sex couple, however, then they should schedule the wedding date.  Respondent's judicial assistant checked the system one time and determined that a requesting couple might be a same-sex couple, but respondent had an actual scheduling conflict, so she truthfully told the couple that he was not available.  Several weeks after that, respondent stopped solemnizing all marriages. The Court concluded that respondent's conduct had been willful and had violated Rule 3.3(B) (prohibiting manifestation of bias or prejudice in the performance of judicial duties) and related constitutional provisions. The Court did not address a number of constitutional challenges that respondent had raised as affirmative defenses to Count 12. It explained that, in light of the other, notably serious misconduct that the commission had proved by clear and convincing evidence, the misconduct at issue under Count 12 would not affect its consideration of the appropriate sanction, regardless of whether those constitutional challenges were meritorious or not.
Progressive Secular Humanist blog reports on the decision.

No Bivens Claim For Interference With Religious Exercise In Puerto Rican Forest

In Twum-Baah v. U.S. Department of Agriculture, (D PR, March 12, 2018), a Puerto Rico federal district court dismissed Federal Tort Claims Act, free exercise and racial/ ethnic discrimination claims by a representative of the Waroyal Ministry who took his congregation to the El Yunque National Forest as part of their worship. He also started a tour company that offered tours in El Yunque. Federal officials assert that plaintiff needs a special use authorization for his activities. The court said in part:
A liberal reading of plaintiff’s amended complaint suggests Twum-Baah claims officers Verdejo, Ortiz, and Henderon violated his First Amendment rights to freely exercise his religion and to peaceably assemble with the Excursionist Association for El Yunque. ... Nonetheless, the Court’s understanding of Bivens and subsequent decisions by the Supreme Court compels it to find Bivens claims are not available for violations of the First Amendment’s Free Exercise clause.

Suit Over News Photo of Arabic-Speaking School Child May Continue

In Mahdy v. Mason City School District, (SD OH, March 15, 2018), an Ohio federal district court refused to dismiss equal protection and false-light claims growing out of the use of a photo of a 5-year old (identified as J.M.) to illustrate a newspaper story criticizing a rise in the number of Arabic-speaking students in the Mason City, Ohio schools.  The student was the daughter of an Egyptian-born urologist at the University of Cincinnati. The article reported that most of the Arabic-speaking students were from Saudi Arabia on temporary visas to be treated at Cincinnati Children’s Hospital Medical Center, and that their enrollment placed strains on the school system's budget. The court describes plaintiff's claims:
The Complaint alleges that neither Dr. Mahdy nor his wife gave permission to anyone to photograph J.M., to disclose her identity to the public, or to falsely associate her with the Children’s Hospital Destination Excellence Program.... The Complaint alleges that J.M. had to be removed from MECC due to the "wave of Islamophobia that is currently sweeping across our country," and because her family was "so distressed over the prejudice and discriminatory treatment expressed against Arabic-speaking students."

Ohio's Law Banning Abortion Because of Down's Syndrome Is Enjoined

In Preterm-Cleveland v. Himes, (SD OH, March 14, 2018), an Ohio federal district court granted a preliminary injunction against enforcement of Ohio's recently enacted ban on a physician performing an abortion if the woman's decision is based in whole or part on a pre-natal indication of Down's syndrome.The court said in part:
The State argues that Roe and Casey do not apply for two reasons. First, the State argues the “Supreme Court of the United States has never recognized a right to abort an unborn child on the basis of a disability.” ... The State suggests that Roe and Casey only apply to women who accidentally become pregnant.... The State argues that women only have the right to choose whether to have a child, not the right to decide whether to have a particular child....
This argument is not well-taken. The interest protected by the Due Process Clause is a woman’s right to choose to terminate her pregnancy pre-viability, and that right is categorical.
Reacting to the decision, Ohio Attorney General Mike DeWine said:
 I strongly disagree with the district court's ruling that there is a categorical right to abortion that prevents even any consideration of Ohio's profound interests in combatting discrimination against a class of human beings based upon disability. We will be appealing.
Jurist reports on the decision.

Thursday, March 15, 2018

Suit By "Clock Boy" Is Dismissed

In Mohamed v. Irving Independent School District, (ND TYX, March 13, 2018), a Texas federal district court dismissed a number of claims brought on behalf of the so-called "clock boy"-- a 14-year old African-American Muslim student who was suspended from school and arrested on "hoax bomb" charges when he brought an alarm clock he had constructed to school.  The complaint charged in part that the school district "has an 'ugly history of race struggles,' and the State of Texas and the IISD have a 'history of discrimination against Muslims in Texas curriculum and schools.'"  The court concluded that the complaint:
does not contain sufficient factual allegations from which the court can reasonably infer that A.M. was subject to unequal disciplinary treatment based on his religion or race....
Daily Caller reports on the decision.

Wednesday, March 14, 2018

Pakistani Court Says Citizens Must Declare Religion For Identity Documents

Christian Times reports on a decision last week from the Islamabad High Court in Pakistan.  The court ruled that all citizens must declare their religion when they apply for identity documents.  Human rights advocates say this will increase pressure on the Ahmadis who under Pakistani law are not allowed to refer to themselves as Muslims.  A spokesman for the Ministry of Religious Affairs and Interfaith Harmony, however, said the requirement will help religious minorities secure the 5% quota in government jobs to which they are entitled.

Massachusetts Lacks Standing To Challenge Expanded Contraceptive Mandate Exemptions

In Commonwealth of Massachusetts v. U.S. Department of Health & Human Services, (D MA, March 12, 2018), a Massachusetts federal district court held that the state of Massachusetts lacks standing to challenge recently adopted Interim Federal Rules expanding religious and moral exemptions from the Affordable Care Act's contraceptive coverage mandate. The court concluded that the state had "failed to set forth specific facts demonstrating that it is likely to incur an injury" from adoption of the rules. MassLive reports on the decision.

Tuesday, March 13, 2018

Montana's Anti-Polygamy Laws Upheld

In Collier v. Fox, (D MT, March 9, 2018), a Montana federal district court adopted a magistrate's recommendations and dismissed a challenge to Montana's civil and criminal anti-polygamy laws. When the state denied Nathan Collier a marriage license to marry a second wife, he nevertheless entered a relationship with her and they hold themselves out as being married. The magistrate's Feb. 22 opinion (full text) dismisses the challenge to the state's criminal anti-polygamy provisions because there is no genuine threat that the parties challenging the law will be prosecuted, saying:
The State Defendants have taken the position that Nathan’s and Christine’s declaration to be husband and wife, without the accompanying possession of a state-issued marriage license, is insufficient to violate the Montana bigamy statutes. Therefore, this case presents the unusual situation where the State of Montana has taken the position that the Colliers’ conduct is not criminal, while the Colliers insist that it is.
Plaintiffs also challenge the state's refusal to issue a marriage license for Collier's marriage to his second wife.  The court held that the state's anti-polygamy law is constitutional, relying on the U.S. Supreme Court's 1878 decision in Reynolds v. United States. Billings Gazette reports on the decision.

Church's Suit Challenging California Health Insurance Rules Dismissed As Not Ripe

In Skyline Wesleyan Church v. California Department of Managed Health Care, (SD CA, March 9, 2018), a California federal district court dismissed on ripeness and standing grounds a suit by a church challenging California insurance rules on the coverage of abortion services by health policies.  The church objected to providing its employees with policies that covered abortions.  Initially state regulators required all policies to contain such coverage, but subsequently said they would grant exemptions for policies offered exclusively to religious employers.  The court said in part:
At this point in time it cannot be said that the DMHC would deny a health care plan’s request to offer the exemption sought by Plaintiff because no such plan has been submitted. Thus, the existence of a controversy depends on a factual scenario that may or may not materialize, making this case unfit for review.

Monday, March 12, 2018

11th Circuit: Employer Offered Reasonable Accommodation

In Patterson v. Walgreen Co., (11th Cir., March 9, 2018), the U.S. 11th Circuit Court of Appeals, in a suit alleging religious discrimination and retaliation, held that Walgreens had offered reasonable accommodations for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. The employee, a training instructor, was fired in the aftermath of his refusal to conduct an emergency training session on a Saturday.  The court said in part:
To comply with Title VII, an employer is not required to offer a choice of several accommodations or to prove that the employee’s proposed accommodation would pose an undue hardship; instead, the employer must show only “that the employee was offered a reasonable accommodation, ‘regardless of whether that accommodation is one which the employee suggested.’” ...
Walgreens decided to terminate his employment only after he failed to conduct the emergency training session, insisted that Walgreens guarantee that he would never have to work on his Sabbath, and refused to consider other employment options within the company without such a guarantee.
[Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

From SSRN:
From SmartCILP:

Sunday, March 11, 2018

Recent Prisoner Free Exercise Cases

In Hardy v. Agee, 2018 U.S. App. LEXIS 5648 (6th Cir., March 5, 2018), the 6th Circuit reversed the district court's dismissal for failure to exhaust administrative remedies of a suit by a Muslim inmate claiming that while on room restriction he was prevented from attending religious services and classes.

In England v. Walsh, (9th Cir., March 9, 2018), the 9th Circuit upheld dismissal of claims regarding failure to list Nation of Islam in the Nevada Department of Corrections Religious Practice Manual, and furnishing an inmate a vegetarian diet to meet NOI dietary requirements.

In Ackbar v. Byers2018 U.S. Dist. LEXIS 36006 (D SC, March 5, 2018), a South Carolina federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 37278, Jan. 22, 2018) and dismissed a complaint by an inmate that his Nation of Gods and Earths material was confiscated.

In Duncan v. Lay, 2018 U.S. Dist. LEXIS 35213 (ED AR, March 5, 2018), an Arkansas federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 36288, Feb. 14, 2018) and allowed an inmate to move ahead with his complaint that he has been denied access to the chapel library.

In Broyles v. Presley, 2018 U.S. Dist. LEXIS 36190 (D KA, March 6, 2018), a Kansas federal district court dismissed a suit alleging lack of kosher food brought by an inmate who says he practices the Jewish faith, Yahweh Assembly in Yahshua.

In Goddard v. Alexakos, 2018 U.S. Dist. LEXIS 36322 (ED KY, March 6, 2018), a Kentucky federal district court dismissed an inmate's complaint that the federal medical center at which he was confined only offered a general Christian religious service and would not provide a separate service for "The Way" (a non-Protestant Christian religion).

In Carawan v. Mitchell, 2018 U.S. Dist. LEXIS 36897 (WD NC, March 6, 2018), a North Carolina federal district court dismissed a Muslim inmate's complaint that the prison had discontinued the Zakat fund through which inmates could fulfill their religious obligation to give charity.

In Trainauskas v. Fralicker, 2018 U.S. Dist. LEXIS 37408 (SD IL, March 7, 2018), an Illinois federal district court allowed an inmate to move ahead with his complaint regarding disciplinary sanction related to letters he wrote about an Odinist religion known as The Guardians of Othala Kindred.

In Walker v. Harris, 2018 U.S. Dist. LEXIS 37693 (MD GA, March 8, 2018), a Georgia federal district court adopted most of a magistrate's recommendation (2018 U.S. Dist. LEXIS 38118, Feb. 9, 2018) and allowed a Muslim inmate to proceed with an excessive force claim, but not a free exercise or RLUIPA claim, regarding action against him for tucking his pants legs in his socks.

In Dawson v. Wagatsuma, 2018 U.S. Dist. LEXIS 39037 (D HI, March 9, 2018), a Hawaii federal district court dismissed an inmate's claim that he was required to denounce his Native Hawaiian Religion in order to participate in the prison's Module Contract Program.