Environmental Impact Challenge To Dakota Access Pipeline Is Partially Successful

While in March a D.C. federal district court rejected a RFRA challenge by the Cheyenne River Sioux Tribe to the Dakota Access Pipeline project (see prior posting), the same court has now held that the Army Corps of Engineers must reconsider portions of its environmental analysis of the project.  In a 91-page opinion in Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, June 14, 2017), court held:

Although the Corps substantially complied with NEPA in many areas, the Court agrees that it did not adequately consider the impacts of an oil spill on fishing rights, hunting rights, or environmental justice, or the degree to which the pipeline’s effects are likely to be highly controversial.

To remedy those violations, the Corps will have to reconsider those sections of its environmental analysis upon remand by the Court. Whether Dakota Access must cease pipeline operations during that remand presents a separate question of the appropriate remedy, which will be the subject of further briefing.

Red Green and Blue reports on the decision.

Air Force JAG Commissions First Hijabi Lawyer

The U.S. Air Force JAG Corps has for the first time selected a Muslim woman who wears a hijab for a commission in the Judge Advocate General Corps. According to yesterday's UT News and an earlier report in The Arab American, recent University of Toledo law graduate Maysaa Ouza believes that she is the first hijabi to apply to the Air Force JAG Corps.  The Air Force issued its latest version of Policy Directive 52-2 on accommodation of religious practices in Feb. 2016.

European Court Finds Bulgaria Violated Convention In Refusing To Recognize Ahmadiyya Group

In Metodiev and Others v. Bulgaria, (ECHR, June 15, 2017), (full text of opinion in French), the European Court of Human Rights in a Chamber Judgment held that Bulgaria had violated the European Convention on Human Rights Art. 9 (freedom of religion) in refusing to register the new Ahmadiyya Muslim Community as a denomination under Bulgaria's Religions Act.  According to the Court's press release summarizing the decision:

the sole reason given by the Supreme Court of Cassation for the refusal was the lack of a sufficiently precise and clear indication of the beliefs and rites of the Ahmadi religion in the association’s constitution. The domestic court had concluded that the constitution did not meet the statutory requirements of the Religions Act, which sought to distinguish between the various religions and to avoid confrontation between religious communities....

The Court took the view that the approach adopted by the Court of Cassation would lead in practice to refusing registration of any new religious association having the same doctrine as an existing religion. That approach could result in allowing the existence of only one religious association for each religious movement and in requiring all followers to adhere to it.

A Chamber Judgment may be appealed to the Grand Chamber.

Staffing Agency Settles EEOC Suit Over Accommodation of Rastafarian

HospitalityStaff, a company that places employees in central Florida's hotel industry, has settled a religious discrimination claim filed against it by the EEOC. According to EEOC's June 14 press release:

The EEOC's lawsuit charged that HospitalityStaff violated religious discrimination law by failing to provide a reasonable accommodation to Courtnay B. Joseph, a Rastafarian, when it required him to cut his dreadlocks to comply with its client's grooming standards in order to keep his position at an Orlando-area hotel. The EEOC said that HospitalityStaff took Joseph off his assignment and never reassigned him.

Under the settlement, the company will pay Joseph $30,000 in damages, will adopt a clear policy on religious and disability accommodation, will provide training to managerial and HR personnel, and will report to the EEOC for 3 years.

Fugitive FLDS Leader Arrested

As reported by KUTV, the FBI in Salt Lake City announced the arrest in South Dakota on Wednesday evening of fugitive FLDS leader Lyle Jeffs. Last June Jeffs fled while under house arrest awaiting trial on charges of conspiracy to commit food stamp fraud and conspiracy to commit money laundering. (See prior posting.)  Lyle is the brother of Warren Jeffs, the now-jailed former leader of the polygamous FLDS sect.

Fired Legislative Staffer Can Move Ahead With Suit Alleging Use of State Funds To Promote Church Facility

In Ali v. McClinton, (ED PA, June 14, 2017), a Pennsylvania federal district court refused to dismiss on 11th Amendment grounds a suit against a member of the Pennsylvania House of Representatives in her personal capacity. The court permitted fired constituent services staffer El Shafiyq Asad Ali to move ahead on his 1st Amendment Establishment Clause claim and one of his Pennsylvania Whistleblower Law claims.  Ali alleges that Rep. Joanna McClinton fired him after he objected to McClinton's asking him to organize an event, to be paid for from state funds, at a Philadelphia Housing Authority site. The event was designed to promote a nearby facility that the Open Door Mission True Light Church planned to open.  Rep. McClinton is a minister at the Church.  The court however did dismiss Ali's religious discrimination claims, certain of his Whistleblower Act claims and all of his "official capacity" claims against McClinton and the Pennsylvania House of Representatives.

Trump Extends Effective Date of Travel Ban To Prevent Case From Becoming Moot

President Trump yesterday issued a Memorandum (full text) designed to prevent a dismissal on mootness grounds of the government's attempt to obtain Supreme Court review of the constitutionality of his second travel ban Executive Order.  The major provisions of the travel ban imposed a 90-day suspension of entry into the country of nationals of six Muslim-majority nations, and a 120-day suspension of the entry of refugees, both to be measured from the March 16, 2017 effective date of the Order.  The new Memorandum issued June 14 provides:

In light of questions in litigation about the effective date of the enjoined provisions and in the interest of clarity, I hereby declare the effective date of each enjoined provision to be the date and time at which the referenced injunctions are lifted or stayed with respect to that provision.  To the extent it is necessary, this memorandum should be construed to amend the Executive Order.

Lyle Denniston has more on the President's action.

6th Circuit En Banc Hears Legislative Prayer Case

The U.S. 6th Circuit Court of Appeals sitting en banc yesterday heard oral arguments in Bormuth v County of Jackson (Docket No. 15-1869). (Audio of full oral arguments.)  In the case, a 3-judge panel of the 6th Circuit in a 2-1 decision held that the manner in which the Jackson County, Michigan Board of Commissioners opens its meetings with prayer violates the Establishment Clause.  (See prior posting.)

Hate Crimes In Canada Up In 2015

Statistics Canada yesterday released data on Police Reported Hate Crimes, 2015. According to the release from the government statistical agency:

Hate crimes rose by 5% in Canada in 2015, largely due to an increase in incidents targeting certain religious and ethno-cultural groups, specifically the Muslim population and Arabs or West Asians. For the year, police reported 1,362 criminal incidents that were motivated by hate in Canada, 67 more than the previous year....

Police-reported hate crimes targeting the Muslim population increased from 99 incidents in 2014 to 159 incidents in 2015, an increase of 61%. At the same time, the number of police-reported crimes targeting the Jewish population declined from 213 in 2014 to 178 in 2015. Hate crimes targeting the Jewish population accounted for 13% of all hate crimes, followed closely by hate crimes targeting the Muslim population (12%).

USCIRF Elects New Chair and Vice-Chairs

The U.S. Commission on International Religious Freedom yesterday elected Commissioner Daniel Mark as its new Chairman. (Press release). Mark is assistant professor of political science at Villanova University.  He succeeds Rev. Thomas J. Reese, S.J. whose term as chair has expired, but who remains on the Commission.  The Commission elected Sandra Jolley and Kristina Arriaga as new vice-chairs.

New Study: Clergy's Denomination Correlates Strongly With Political Party Affiliation

A Yale professor and Harvard graduate student this week posted a new study titled Partisan Pastor: The Politics of 130,000 American Religious Leaders.  Using a new data set, the researchers conclude that the religious denomination of a member of the clergy is much more likely to correlate with political party affiliation than is religious denomination of congregants. New York Times reports on the new study. [Thanks to Steven H. Sholk for the lead.]

British Court Says Disabled Care Home Resident Should Not Observe Muslim Customs

In Re: IH (Observance of Muslim Practice) (England & Wales Ct. Protection, June 12, 2017), a judge in Britain's Court of Protection (which has jurisdiction to make decisions in the best interest of those who lack capacity to do so for themselves) made his own findings about principles of Muslim religious law in denying a father's wishes for his 39-year old son who has a profound learning disability and resides in a care home. Relying on testimony of an expert witness in Islamic law, the court held that the son does not have an obligation to observe the practice of shaving or trimming pubic and underarm hair. The court had previously held that the son does not have an obligation to fast during Ramadan, and the father did not contest this ruling.  The Huddersfield Daily Examiner reports on the decision.

9th Circuit Hears Oral Arguments In Coach's Suspension For On-Field Prayer

The U.S. 9th Circuit Court of Appeals yesterday heard oral arguments (video of full arguments) in  Kennedy v. Bremerton School District.  In the case a Washington federal district court refused to enjoin the suspension of high school football coach Joe Kennedy.  The school took action against the coach because he insisted on praying at mid-field at the end of games. (See prior posting.) The Daily Caller yesterday reported on the case as the oral arguments approached.

9th Circuit Upholds Most Of Injunction Against Second Travel Ban Without Reaching Establishment Clause Issue

Yesterday in an 86-page per curiam opinion in State of Hawaii v. Trump, (9th Cir., June 12, 2017), the U.S. 9th Circuit Court of Appeals upheld most of the injunction previously issued by an Hawaii federal district court barring enforcement of the major provisions of President Trump's second travel ban Executive Order.  Summarizing its holding the 9th Circuit panel said:

we affirm the injunction as to Section 2(c), suspending entry of nationals from the six designated countries for 90 days; Section 6(a), suspending USRAP for 120 days; and Section 6(b), capping the entry of refugees to 50,000 in the fiscal year 2017.

However the court vacated the injunction to the extent that it prevented the government from conducting inter-agency reviews that do not impact third parties. The court also limited the injunction to government officials other than the President himself.

In its decision, the court did not reach the Establishment Clause arguments. Instead, it relied on statutory grounds:

we conclude that Plaintiffs have shown a likelihood of success on the merits at least as to their arguments that EO2 contravenes the INA by exceeding the President’s authority under § 1182(f), discriminating on the basis of nationality, and disregarding the procedures for setting annual admissions of refugees.

The 3 judges deciding the case were all Clinton appointees. The Justice Department previously asked the Supreme Court to suspend the district court's injunction as the case moves through the entire appellate process.

Trump Speaks To Faith & Freedom Coalition Conference

Last Thursday, President Trump delivered a nearly 35-minute speech (full text) to the Faith and Freedom Coalition's Road to Majority Conference held in Washington, D.C.  Much of the address focused on campaign promises that Trump had made to Christian evangelical groups as well as on more general campaign promises.  Here are a few excerpts from his address:

Your voices will resound across the halls of our Capitol, and across the world.  We recite today the words of Isaiah Chapter 1, Verse 17:  “Learn to do right; seek justice.  Defend the oppressed.  Take up the cause of the fatherless; plead the case of the widow.”

The entrenched interests and failed, bitter voices in Washington will do everything in their power to try and stop us from this righteous cause, to try to stop all of you.  They will lie.  They will obstruct.  They will spread their hatred and their prejudice.  But we will not back down from doing what is right.  Because, as the Bible tell us -- (applause) -- we know that the truth will prevail, that God’s glorious wisdom will shine through, and that the good and decent people of this country will get the change they voted for and that they so richly deserve.  (Applause.) ....

As long as I'm President, no one is going to stop you from practicing your faith or from preaching what is in your heart and from preaching -- and really, this is so important -- from the bottom of my heart -- from preaching from the people that you most want to hear and that you so respect.  So we have taken a very, very strong position, and you picked a winner.  (Applause.)   

So we want our pastors speaking out.  We want their voices in our public discourse.  And we want our children to know the blessings of God.  (Applause.)  Schools should not be a place that drive out faith and religion, but that should welcome faith and religion with wide, open, beautiful arms.  (Applause.)  Faith inspires us to be better, to be stronger, to be more caring and giving, and more determined to act in selfless and courageous defense of what is good and what is right.  It is time to put a stop to the attacks on religion.  (Applause.)....  

Last month, I traveled to Saudi Arabia to speak to the leaders of more than 50 Muslim and Arab countries, and to rally them in the common fight against the terrorism, which is a menace to people of all religions....

Finally, because my administration is deeply committed to the right of religious believers everywhere to be free from persecution, I called on these leaders to protect Muslims, and Christians, and Jews, and people of all faiths.  Because you know what’s going on there.  And it’s horrible -- horrible.  Terrorism is a threat, and it is a big threat to religious liberty around the world.  And all responsible nations must protect the right of people to live and worship according to their conscience.  (Applause.) 

Northern Ireland Court Says Humanist Wedding Ceremonies Must Be Recognized

According to Belfast News Letter, on Friday the Belfast, Northern Ireland High Court ruled that Humanist wedding ceremonies must be recognized, and that refusal to do so violates the European Convention on Human Rights.  The ruling came in the high profile planned marriage of football star Eunan O’Kane and model Laura Lacole. Authorities had told them that they would need a separate civil ceremony for legal recognition of their marriage.  The matter may not be finally settled however. Northern Ireland's Attorney General says he plans to appeal the High Court's decision.

In A First, Pakistan Imposes Death Sentence For Online Blasphemy

As reported by the Hindustan Times and The Sun, for the first time a Pakistani court has handed down a death sentence for blasphemy disseminated on social media. On Saturday, an Anti-Terrorism Court sentenced a 30-year old Shia Muslim who posted derogatory remarks about Sunni religious figures as well as about the Prophet Muhammad on Facebook.  Apparently the defendant engaged in a religious debate on Facebook and the person on the other side turned out to be a counter-terrorism agent. Defendant was charged under Pakistan Penal Code Section 295-C (use of derogatory remarks in respect of the Holy Prophet) and Sections 9 and 11W of the Anti-Terrorism Act (inciting sectarian hatred).

Recent Articles of Interest

From SSRN:

• Craig S. Lerner, The Tower of Babel Revisited: Global Governance as a Problematic Solution to Existential Threats, (North Carolina Journal of Law and Technology, Vol. 19, No. 1, 2017 Forthcoming).
• Yaniv Roznai, Negotiating the Eternal: The Paradox of Entrenching Secularism in Constitutions, (2017 Mich. St. L. Rev. 253).
• Derek Smith, Render Unto Caesar: The Constitutionality of Ontario's Effective Referral Requirement for Medical Assistance in Dying (June 7, 2017).
• Terry S. Kogan, Public Restrooms and the Distorting of Transgender Identity, (North Carolina Law Review, Vol. 95, No. 4, 2017).
• Alqahtani Suaad Muhammad, Western Feminism or Return to Authentic Islam? Jordanian Women in Faqir's Pillars of Salt and My Name Is Salma, (AWEJ for Translation & Literary Studies, Volume 1, Number 2, May 2017).

From SmartCILP:

• Paul Christopher Johnson, Possessed Persons and Legal Persons in Brazil, 31 Maryland Journal of International Law 180-216 (2016).
• Justin B. Richland. Paths In the Wilderness?: The Politics and Practices of Hopi Religious Freedom in Hopitutskwa, 31 Maryland Journal of International Law 217-243 (2016).
• Sara Movahed, Hope for the Hopi In a Post-Hobby Lobby World: The Supreme Court's Recent Interpretation of RFRA and Strengthening Native Americans' Religious-Based Land Rights Claims, 31 Maryland Journal of International Law 244-256 (2016).
• Andrew Forsyth, Book Review. Not Without Honor? Prophecy Without Contempt: Religious Discourse in the Public Square by Cathleen Kaveny, [Abstract], 29 Yale Journal of Law & Humanities 113-127 (2017).
• Charles Adside, III, Constitutional Damage Control: Same-Sex Marriage, Smith's Hybrid Rights Doctrine, and Protecting the Preacher Man After Obergefell, 27 George Mason University Civil Rights Law Journal 145-205 (2017).

New Trial Sought After Juror Dismissal For Hearing Holy Spirit

As previously reported, last month a Florida federal court jury found former Congresswoman Corrine Brown  guilty on 18 counts of fraud and corruption after the judge removed a juror who insisted the Holy Spirit had told him Congresswoman Brown was not guilty on all charges. Now a motion for a new trial has been filed (full text).  The motion in United States v. Brown, (MD FL, filed 6/8/2017), argues:

There is a substantial possibility the holy spirit was actually the juror's own mind or spirit telling him that one or more witnesses had not testified truthfully.

[Thanks to Ray Treadwell for the lead.]

Recent Prisoner Free Exercise Cases

In Kerry X v. Pennsylvania Department of Corrections, (3d Cir., June 6, 2017), the 3rd Circuit affirmed the dismissal of a suit by an inmate who practices a form of Islam known as Muhammad’sTemple of Islam who contended that he could not observe certain holy days.

In Bush v. Lackawanna County Prison, 2017 U.S. Dist. LEXIS 87494 (MD PA, June 7, 2017), a Pennsylvania federal district court dismissed for failure to prosecute a former inmate's commplaint that he had been unable to practice his Nation of Islam religion.

In Gadbury v. California, 2017 U.S. Dist. LEXIS 88422 (ED CA, June 7, 2017), a California federal magistrate judge dismissed an inmate's free exercise complaint that his vegetarian diet sometimes included fish or eggs.