Michigan Supreme Court Refuses To Reverse Injunction Against Private School Aid

In Council of Organizations and Others for Education About Parochiaid v. State of Michigan,  (MI Sup. Ct., March 9, 2018), the Michigan Supreme Court in a brief order denied leave to appeal a preliminary injunction issued by the Court of Claims.  That injunction prohibited payment of $2.5 million the legislature had allocated to private schools to cover the cost of complying with state mandates. (See prior posting.)  Chief Justice Markham filed a dissenting opinion arguing that the decision of the Court of Claims should be reversed.

Massachusetts Supreme Court Rules On Renovation Grants To Church

Caplan v. Town of Acton, (MA Sup Jud Ct, March 9, 2018), is a challenge under the Massachusetts' constitution's"anti-aid" clause to two historic-resource grants for renovation purposes to an active church.  The Massachusetts Supreme Judicial Court, in a 5-1 opinion, concluded:

the constitutionality of such grants must be evaluated under our three-factor test: a judge must consider whether a motivating purpose of each grant is to aid the church, whether the grant will have the effect of substantially aiding the church, and whether the grant avoids the risks of the political and economic abuses that prompted the passage of the anti-aid amendment. We also conclude that, in light of the history of the anti-aid amendment, a grant of public funds to an active church warrants careful scrutiny.... 

[W]e conclude that the plaintiffs are likely to succeed on the merits of their claim with respect to the stained glass grant. Although the record before us does not allow us to ascertain whether there is a motivating purpose behind this grant other than historic preservation, its effect is to substantially aid the church in its essential function and, given the explicit religious imagery of the stained glass, it fails to avoid the very risks that the framers of the anti-aid amendment hoped to avoid....

With respect to the Master Plan grant, we conclude that further discovery is needed before a determination should be made as to whether the plaintiffs are likely to succeed on the merits of their claim.  This is in part because, unlike the stained glass grant, the Master Plan grant is far broader in its scope, including not only plans for the renovation of worship space but also plans for the renovation of the Fletcher and Hosmer Houses, which are both private residences....

Justice Kafker, joined by Justice Gaziono filed a concurring opinion.  Justice Cypher filed a dissenting opinion. MassLive reports on the decision.

Rwandan Government Closes Over 700 Churches

RNS reports that on Tuesday, the government of Rwanda shut down 714 of the more than 1300 churches in the country's capital city of Kigali.  The Rwanda Governance Board says that the closings were the result of building safety, hygiene and noise violations.  Most of the churches affected were small Pentecostal congregations that have multiplied in recent years.  Hygiene problems are common because Kigali does not have a sewage system or treatment plant.  Critics however say that the closures are an attempt by President Paul Kagame to suppress criticism. A Rwandan activist based in Canada said: "The churches constituted the last open space. Kagame knows this. The localized community of churches offered a slight space for daring to imagine and talk about change."

Hospital Can Assert Ministerial Exception Defense To Suit By Chaplain

In Penn v. New York Methodist Hospital, (2d Cir., March 7, 2018), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision held that a hospital "only historically connected to the United Methodist Church but still providing religious services through its pastoral care department" may invoke the ministerial exception doctrine.  The court summarized its majority opinion:

Mr. Penn—a former duty chaplain at New York Methodist Hospital—brought a lawsuit alleging that New York Methodist Hospital and Peter Poulos discriminated against him on the basis of his race and religion, and retaliated against him after he filed charges with the U.S. Equal Employment Opportunity Commission and the New York City Commission on Human Rights. New York Methodist Hospital, because of its history and continuing purpose, through its Department of Pastoral Care, is a “religious group.” Mr. Penn’s role within the Department of Pastoral Care was to provide religious care to the hospital’s patients and religious care only. Therefore, the First Amendment’s Religion Clauses warrant the application of the ministerial exception doctrine and the dismissal of this lawsuit.

Judge Droney dissented, saying in part:

The presence of a non‐sectarian chaplaincy department cannot transform an otherwise secular hospital into a religious institution for purposes of the ministerial exception.  If it could, most hospitals would be exempt from anti‐discrimination laws, as most—even clearly secular hospitals—have chaplaincy departments.... Moreover, the interfaith nature of the Department means that it is not run according to the tenets of any particular religion, thereby reducing the likelihood that evaluating the reasons for the termination of an employee such as Penn would “plunge [a court] into a maelstrom of Church policy, administration, and governance.”

Courthouse News Service reports on the decision.

Appeals Court Says Mennonite Woman Must Remain In Jail Until She Will Answer Prosecution's Questions

A Colorado appeals court. after expedited consideration, has rejected religious liberty arguments raised by a Mennonite woman who refuses to testify on behalf of the prosecution in a capital case.  Greta Lindekranz was an investigator for defense attorneys. The prosecution wants her testimony to rebut arguments that convicted murderer Robert Ray received ineffective assistance of counsel.  Lindekranz, who opposes capital punishment on religious grounds, argues that answering questions on direct examination by the prosecution would make her a tool in the prosecution's efforts to execute Ray.  The trial court held that her refusal to answer questions put forward by the prosecution placed her in contempt, and it ordered her held in jail until she elects to answer the questions. (See prior posting.)  In People v. Ray and Concerning Lindekranz, (CO App., March 8, 2018), the appellate court refused to reverse the contempt citation.  It held that even if strict scrutiny applies, the state has a compelling interest in ascertaining the truth and rendering a just judgment in accordance with the law.  The court rejected Lindekranz's alternative of answering questions from the court, with the prosecution and defense then cross-examining her.

The court concluded:

Ms. Lindecrantz is in a tough spot — caught between the proverbial rock and a hard place. We take no pleasure in declining to extricate her. But the state of the law being what it is, decline we must.

Colorado Public Radio, reporting on the decision, says that an appeal will be filed with the Colorado Supreme Court.

UPDATE: AP reports (March 10) that Lindekranz will now testify because her refusal to do so is hurting Ray's appeal. According to her lawyer: "Based on this dramatic change in circumstance, she has concluded that her religious principles honoring human life now compel that she must testify."

Canadian Agency Violates Foster Parents' Rights By Insisting They Say Easter Bunny Is Real

Canadian Press reports that an Ontario Superior Court judge ruled this week that a Christian couple's religious beliefs were infringed in violation of Canada's Charter of Rights and Freedoms when the Children's Aid Society of Hamilton removed two foster children from their home.  The action closing their foster home came after a social worker insisted that the couple tell the two young girls that the Easter Bunny is real. Foster parents Frances and Derek Baars say that doing so would violate their religious beliefs.  The court wrote in part:

There is ample evidence to support the fact that the children were removed because the Baars refused to either tell or imply that the Easter Bunny was delivering chocolate to the Baars' home. I am more than satisfied that the society actions interfered substantially with the Baars' religious beliefs.

Suit Challenges City's Forcing of Homeless Into Faith-Based Shelters

In Amarillo, Texas, an advocate for the homeless has filed a federal lawsuit challenging the city's attempts to move homeless individuals from a tent city known as Christ Church Camp of New Beginnings to traditional homeless shelters.  The complaint (full text) in Donelson v. City of Amarillo, (ND TX, filed 2/28/ 2018), contends in part that the city has violated the Establishment Clause by forcing people into faith-based shelters.  Texas Observer reports on the lawsuit.

Christian Student Group Sues Over Decertification

The InterVarsity Christian Fellowship at Wayne State University has filed a federal lawsuit challenging the University's action removing its status as a recognized student organization.  The complaint (full text) in InterVarsity Christian Fellowship/ USA v. Board of Governors of Wayne State University,  (WD MI, filed 3/6/2018), alleges that the action was taken against it because of the organization's requirements that its leadership share its Christian faith and affirm the group's statement of faith.  The university contends that this violates its non-discrimination policy.  InterVarsity has operated on Wayne State's campus for 75 years.  the complaint claims that the University's action violates various federal and state constitutional and statutory provision.  Detroit News reports on the lawsuit.

UPDATE: According to a press release from Becket, two days after the suit was filed the University reinstated InterVarsity Christian Fellowship, at least temporarily.

6th Circuit: Funeral Home Violated Title VII By Firing Transgender Employee

In EEOC v. R.G & G.R. Harris Funeral Homes, Inc., (6th Cir., March 7, 2018), the U.S. 6th Circuit Court of Appeals reversed the dismissal of a Title VII religious discrimination suit against a Michigan funeral home that fired Aimee Stephens, a transgender employee (funeral director/embalmer) who was in the process of transitioning from male to female. In a 49-page opinion, the court held first that Stephens was illegally fired because of her failure to conform to sex stereotypes.  The funeral home owner decided to fire Stephens "because Stephens was 'no longer going to represent himself as a man' and 'wanted to dress as a woman'."

The court also held that:

discrimination on the basis of transgender and transitioning status violates Title VII.

Moving to defenses raised by the funeral home, including its defense under RFRA which the district court had relied upon, the court held:

the Funeral Home does not qualify for the ministerial exception to Title VII; the Funeral Home’s religious exercise would not be substantially burdened by continuing to employ Stephens without discriminating against her on the basis of sex stereotypes; the EEOC has established that it has a compelling interest in ensuring the Funeral Home complies with Title VII; and enforcement of Title VII is necessarily the least restrictive way to achieve that compelling interest.

Explaining its rejection of defendant's claim of a substantial burden under RFRA, the court said in part:

...simply permitting Stephens to wear attire that reflects a conception of gender that is at odds with Rost’s religious beliefs is not a substantial burden under RFRA. We presume that the “line [Rost] draw[s]”—namely, that permitting Stephens to represent herself as a woman would cause him to “violate God’s commands” because it would make him “directly involved in supporting the idea that sex is a changeable social construct rather than an immutable God-given gift,” ... —constitutes “an honest conviction.”...  But we hold that, as a matter of law, tolerating Stephens’s understanding of her sex and gender identity is not tantamount to supporting it.

Slate reports on the decision. [Thanks to Steven H. Sholk and Tom Rutledge for the lead.] 

Suit Filed Over Assets of Michigan-Based Communal Sect

The Detroit News this morning reports on a lawsuit that has been filed in an Oakland County, Michigan trial court over millions of dollars of assets of the Israelite House of David (IHOD).  IHOD was a communal religious sect created in 1903 and based in Benton Harbor, Michigan.  Members of the sect were required to remain celibate, and apparently only three members of the sect (one of whom is very ill) remain.  The suit was filed by Charles Ferrel who lives in Hawaii and was excommunicated-- he says wrongfully-- five years ago.  He alleges that defendants (two of the remaining members) have taken $50 million in assets from IHOD.  The sect's assets are located in Michigan, Hawaii and Australia,  Australia was envisioned by the sect as the place where its members would relocate when the world collapsed as predicted in the Book of Revelation.  In the suit, plaintiff seeks reinstatement as a member and control of the assets.  Alternatively he asks that the assets be turned over to the state of Michigan for it to dispose of them according to law.

British Court Issues FGM Protection Order To Protect 1-Year Old

According to the Manchester Evening News this week, a Family Court judge in Manchester, England has entered an "FGM protection order" at the request of social workers.  The order prohibits a 1-year old girl's family from flying the child back to India, their country of origin, for purposes of female genital mutilation.  The child's three older sisters had previously been flown to India for the procedure.  FGM protection orders have been available from British judges for about three years. (Background on obtaining an FGM Order).

Justice Department Sues Over County Nursing Home's Procedure For Obtaining Flu Shot Exemption

The Justice Department announced yesterday that it has filed a religious discrimination suit against a Wisconsin county because of the religious accommodation policy of a county-owned nursing home.  The complaint (full text) in United States v. Ozaukee County, Wisconsin, (ED WI, filed 3/6/2018), challenges the nursing home's requirement that a religious exemption for staff from the requirement to obtain a flu shot is available only if the staff member furnishes a letter from his or her clergy leader.  Nursing assistant Barnell Williams sought a religious exemption, but was not affiliated with any church or organized religion.  She based her religious objection on her own interpretation of the Bible.  She agreed to receive a flu shot in order to preserve her job.  However, according to the complaint:

Williams suffered severe emotional distress from receiving the flu shot in violation of her religious beliefs, including withdrawing from work and her personal life, suffering from sleep problems, anxiety, and fear of “going to Hell” because she had disobeyed the Bible by receiving the shot. These deep emotional problems stemming from having to take the flu shot have plagued Williams to the present. 

Malaysia's Federal Court Says Conversions To Christianity Are For Sharia Courts

In Malaysia last week, the Malaysian Federal Court dismissed appeals by four women who seek to have their names and religious affiliation changed on their national identity cards-- from Muslim to Christian.  Three of the women were originally Christians, but embraced Islam when they married Muslim men.  Now they are divorced and wish to re-embrace Christianity.  The fourth woman is a convert from Islam to Christianity. According to World Watch Monitor, the country's highest civil court held that jurisdiction over these cases is only in the Syariah Courts, even though the Sarawak Shariah Court Ordinance 2001 has no provision for leaving Islam.  CBNNews yesterday further explained the implications of this holding:

In the past, Sharia courts have not allowed conversion from the Islamic faith.

Christian groups said they'll request Sarawak legislators to amend state law to allow conversion. In response, several Islamic groups said they plan to counter Christian conversion efforts by sending more Muslims into the state.

Located in Malaysia's east, Sarawak is about 40 percent Christian. Most Christians are Chinese ethnics. Overall, Christians are about nine percent of the Malaysia population while Muslims are about 61 percent. Leaving Islam is unthinkable for most ethnic Malays who believe to be Malay is to be Muslim.

Missouri Abortion Restriction Challenged In New Suit By Satanic Temple Member

A suit filed last week in a Missouri federal district court by a member of The Satanic Temple challenges Missouri's restrictions on abortion as a violation of the Establishment Clause and Free Exercise Clause of the U.S. Constitution.  The complaint (full text) in Doe v. Greitens, (ED MO,filed 2/28/2018), focuses on the requirements in Missouri law that a woman seeking an abortion be furnished a booklet that states in part that life begins at conception and an abortion will terminate the life of a living human being. It also challenges Missouri's 72-hour waiting period and the requirement that the woman be given the opportunity to view an active ultrasound.  The complaint says that plaintiff does not believe that life begins at conception and holds the religious belief that she alone can decide whether to remove human tissue from her body, according to the best scientific understanding of the world.

As previously reported, the Missouri Supreme Court in January heard oral arguments in a state Religious Freedom Restoration Act challenge by The Satanic Temple to the same abortion restrictions.  As reported by Friendly Atheist blog, one of the purposes of the new lawsuit is to undercut a mootness argument in the Missouri Supreme Court.  The lower court dismissed the lawsuit because the plaintiff was no longer pregnant.  The new suit is presumably intended to show that this challenge is one that is  within the exception for controversies that are capable of repetition but evade review.

Destruction of Native American Burial Site Did Not Violate RFRA

In Slockish v U.S. Federal Highway Administration, (D OR, March 2, 2018), an Oregon federal magistrate judge recommended dismissing a RFRA challenge to the destruction of sacred Native American burial grounds in widening a highway.  Relying on Supreme Court and 9th Circuit precedent, the court held:

As in Lyng and Navajo Nation, plaintiffs contend that the sacred site at issue, which is located on federal land, has been desecrated and destroyed. Yet, as in those cases, plaintiffs have not established that they are being coerced to act contrary to their religious beliefs under the threat of sanctions or that a governmental benefit is being conditioned upon conduct that would violate their religious beliefs. Without these critical elements, plaintiffs cannot establish a substantial burden under the RFRA.

Becket issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Rafael Domingo & Brigitte Basdevant-Gaudemet, Paul Fournier (1853-1935), (in Olivier Descamps and Rafael Domingo, Great Christian Jurists in French History (Cambridge University Press, 2019) (Forthcoming)).
• Rafael Domingo & Javier Martínez-Torrón, Javier, Great Christian Jurists in Spanish History: Introduction, (Rafael Domingo and Javier Martínez-Torrón (eds.), Great Christian Jurists in Spanish History (Cambridge University Press, 2018) (Forthcoming)).
• Berta E. Hernández-Truyol, Religion: Rites vs. Rights Resolving Tensions between LGBT Equality and Religious Liberty, (Sexual Orientation and Gender Identity in International Law (Andreas Ziegler, ed., 2018 Forthcoming)).
• Michael W. McConnell, Dressmakers, Bakers, and the Equality of Rights, (in Religious Freedom, LGBT Rights, and the Prospects for Common Ground (William N. Eskridge, Jr. and Robin Fretwell Wilson, eds. 2018).
• Robbie Skyes & Kieran Mark Tranter, The Rise and Fall of Ziggy Stardust and Natural Law, (International Journal for the Semiotics of Law, 2018).

From SSRN (Comparative and Non-U.S Law):

• Robert C. Blitt, The Organization of Islamic Cooperation's (OIC) Response to Sexual Orientation and Gender Identity Rights: A Challenge to Equality and Nondiscrimination Under International Law, (February 28, 2018).
• Paul T. Babie, National Security and the Free Exercise Guarantee of Section 116: Time for a Judicial Interpretive Update, ((2017) 45 Federal Law Review 351).
• Adnan Zulfiqar, Jurisdiction over Jihad: Islamic Law and the Duty to Fight, (West Virginia Law Review, Vol. 120, No. 2, 2017).
• David Abraham, Circumcision: Immigration, Religion, History, and Constitutional Identity in Germany and the U.S., (18 German Law Journal 1745 (2017)).
• P.K. Pandey, Offences Relating to Religion in India, (Law Exam Times, 2017).
• Craig Martin, Striking the Right Balance: Hate Speech Laws in Japan, the United States, and Canada, (Hastings Constitutional Law Quarterly, Vol. 45, No. 3, 2018).

From SmartCILP:

• Gerald Benjamin, The Chassidic Presence and Local Government in the Hudson Valley, 80 Albany Law Review 1383-1464 (2016-2017). 

Recent Prisoner Free Exercise Cases

In Abdul-Aziz v. Lanigan, 2018 U.S. Dist. LEXIS 30258 (D NJ, Feb. 26, 2018), a New Jersey federal district court, while dismissing some claims, allowed Muslim inmates to move ahead with a claim for prospective injunctive relief as to daily Halal meals.

In Fisher v. Schweitzer, 2018 U.S. Dist. LEXIS 33166 (SD OH, March 1, 2018), an Ohio federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 33457, Jan. 2, 2018) and dismissed an inmate's complaint that the warden stopped him from attending church as a way of punishing him for being the victim of an assault.

In Thomas v. Waugh, 2018 U.S. Dist. LEXIS 33541 (ND NY, Feb. 28, 2018), a New York federal magistrate judge recommended allowing plaintiff, an African American of the Jewish-Hebrew faith, to proceed with his 1st Amendment free exercise claim growing out of the refusal by authorities to allow him to wear a tam as an alternative form of Jewish head covering. UPDATE: The magistrate's recommendation was adopted by the court at 2018 U.S. Dist. LEXIS 50282, March 27, 2018.

In Moore v. Jay, 2018 U.S. Dist. LEXIS 34078 (WD OK, March 2, 2018),an Oklahoma federal district court refused at this point to dismiss a suit by a Muslim inmate who alleged that while he agreed to accept kosher food in place of halal food, he was intentionally deceived about the kosher status of the meals he was served.

Inmate Is Not "Employee" Under Title VII

A Texas federal magistrate's decision in Smith v. Gonzales, 2018 U.S. Dist. LEXIS 31836 (ND TX, Feb. 2, 2018), adopted by the court at 2018 U.S. Dist. LEXIS 30160 (Feb. 26, 2018), rejected a Title VII religious discrimination claim filed by a state prison inmate.  Plaintiff David Wayne Smith alleged religious discrimination because he was required to work in his prison job on the Sabbath. The court, relying in part on a 1986 EEOC opinion, held that the inmate is not an "employee" for purposes of Title VII of the 1964 Civil Rights Act.

Alabama Judicial Ethics Provision Enjoined In Part

In Parker v. Judicial Inquiry Commission of the State of Alabama, (MD AL, March 2, 2018), an Alabama federal district court held that a provision in Alabama's Canon of Judicial Ethics, because of its breadth, violates the free speech provisions of the 1st Amendment.  At issue was the provision that: "A judge should abstain from public comment about a pending or impending proceeding in any court...."  A complaint had been filed against Alabama Supreme Court Justice Tom Parker over his comments on the impact of the U.S. Supreme Court's Obergefell decision on an earlier Alabama Supreme Court order barring probate judges from issuing licenses for same-sex marriages. The court issued a preliminary injunction barring the Judicial Inquiry Commission

from enforcing Alabama Canon of Judicial Ethics 3A(6) to the extent that it proscribes public comment by a judge about a pending or impending proceeding in a court outside the state of Alabama, [or] ... proscribes public comment by a judge that cannot reasonably be expected to affect the outcome or impair the fairness of a proceeding in Alabama.

Liberty Counsel issued a press release announcing the decision.

4th Circuit Denies En Banc Review On Bladensburg Cross

The U.S. 4th Circuit Court of Appeals, by a vote of 8-6, has denied an en banc rehearing on the constitutionality of the 40-foot high Bladensburg Cross that has stood for over 90 years at an intersection in Prince Georges County, Maryland. Last October a panel of the 4th Circuit, in a 2-1 decision, held the Latin Cross, created as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting.) Yesterday in American Humanist Association v. Maryland- National Capital Park Planning Commission, (4th Cir., March 1, 2018), the full court's denial of review was accompanied by 4 separate opinions-- one a concurring opinion and 3 dissenting opinions.

Judge Wynn's concurring opinion said in part:

To allow this Court to circumscribe the Bladensburg Cross’s meaning and power, as the Commission and its amici request, would empower this Court to diminish the Latin cross’s many years of accrued religious symbolism, and thereby amount to the state degradation of religion that the Framers feared and sought to proscribe. Indeed, were this Court to accept that the Latin cross’s predominantly sectarian meaning could be overcome by a plaque, a small secular symbol, and four engraved words, as the Commission maintains, we would necessarily grant the government—and the judiciary, in particular—broad latitude to define and shape religious belief and meaning. Surely, the Constitution does not contemplate endowing the government with such extraordinary power to determine and prescribe individual citizens’ religious beliefs and religious communities’ joint understandings, appreciations, and teachings.

Judge Wilkinson's dissent, joined by Chief Judge Gregory and Judge Agee, said in part:

The dead cannot speak for themselves. But may the living hear their silence. We should take care not to traverse too casually the line that separates us from our ancestors and that will soon enough separate us from our descendants. The present has many good ways of imprinting its values and sensibilities upon society. But to roil needlessly the dead with the controversies of the living does not pay their deeds or their time respect.

This memorial and this cross have stood for almost one full century. Life and change flow by the small park in the form of impatient cars and trucks. That is disturbance enough. Veterans Memorial Park may not be Arlington National Cemetery, but it is the next thing to it. I would let the cross remain and let those honored rest in peace.

Washington Post, reporting on the decision, says that the case will be appealed to the Supreme Court.