Friday, August 23, 2019

6th Circuit Decides 2 Cases Growing Out of Kim Davis' Marriage License Refusals

In Ermold v. Davis, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals held that sovereign immunity protects former Rowan County, Kentucky Clerk Kim Davis, and her successor in office, from suit for damages in their official capacity. However, the court went on, Davis may still be sued in her individual capacity, and she is not entitled to qualified immunity in that suit. The case grew out of the widely-publicized refusal of Davis to issue marriage licenses to same-sex couples, even after the U.S. Supreme Court's Obergefell decision. (See prior posting.) Two same-sex couples who were denied marriage licenses sued.

The 3-judge panel split 2-1 in their analysis of why Davis was not entitled to qualified immunity.  Judge Griffin, joined by Judge White, held that Obergefell clearly established a right for same-sex marriage and eliminated the need to use a tiers-of-scrutiny analysis in cases such as this.  Judge Bush held that a tiers-of-scrutiny analysis should be used, but that Davis' conduct does not survive even rational basis review.

In a related case, Miller v. Caudill, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals affirmed the award of $222,695 in attorneys' fees to several same-sex couples who had obtained a preliminary injunction against Davis' policy, but litigated no further after Davis' deputy clerks agreed to issue the licenses.  The 6th Circuit concluded that plaintiffs qualified as a "prevailing party" entitled to attorneys' fees under 42 USC §1988, and that these fees should be paid by the state of Kentucky rather than Rowan County.  The Court said in part:
A win is a win—regardless of whether the winner runs up the score. To prevail, then, plaintiffs didn’t need to obtain duplicative relief in every form that they originally sought it. They wanted the opportunity to obtain marriage licenses in Rowan County, and the preliminary injunction gave them exactly that.
Louisville Courier Journal reports on this decision. [Thanks to Tom Rutledge for the lead.]

Deputy Sheriff Sues Over Refusal To Accommodate His Practice of the "Billy Graham Rule"

Christianity Today reports on a federal lawsuit filed last month by a deputy sheriff who was fired after he refused to train a female deputy because it would require him to spend significant amounts of time alone with her in his patrol car.  The suit, filed on July 31 in the Eastern District of North Carolina, says that deputy Manuel Torres, a Baptist deacon, practices the so-called "Billy Graham Rule" under which he will not be alone with a member of the opposite sex except for his wife.

First International Day For Victims of Anti-Religious Violence

Yesterday was the International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief, as created by a United Nations Resolution (full text) adopted earlier this year. The U.S. Commission on International Religious Freedom issued a statement (full text), saying in part:
Commemorating victims of violence based on religion or belief is critical, but that’s only the beginning of the world’s work to achieve justice for the survivors of past tragedies, like the genocide of Yazidis, Christians and Shi’a Muslims in Iraq by ISIS...

Hung Jury In Pro-Life Tax Objector's Trial

KGW8 News reports that the federal court trial of an Oregon man, Michael Bowman, on misdemeanor charges of willful failure to file a tax return has ended in a mistrial.  Bowman has not filed a return since 1999 because he refuses to have any of his funds go toward funding abortions. Charges were filed against him in 2017. Bowman argues that the 1st Amendment, RFRA and the Oregon Constitution protect his decision on religious grounds to refuse to pay taxes. A jury could not reach a verdict after 11 hours of deliberation.

Challenge To California Order Requiring Health Plan Abortion Coverage Is Unsuccessful

In Missionary Guadalupanas of the Holy Spirit, Inc. v. Rouillard, (CA Ct. App., Aug. 6, 2019), a California state appellate court held that the state's Department of Managed Health Care did not violate the state Administrative Procedure Act when it notified seven health care service plans that they must cover abortions. The state statute does not require compliance with the rule-making process for a  regulation "that embodies the only legally tenable interpretation of a provision of law." A California statute requires insurance plans to cover "basic health care services." The court said in part:
We hold that an abortion is one of two medically necessary options for the treatment of a woman’s pregnancy. A pregnant patient may elect medical services necessary to deliver a baby, or to terminate the pregnancy. Because California law guarantees every woman the right to choose whether to bear a child or obtain an abortion, the only legally tenable interpretation of the law is that abortions are basic health care services, which health care service plans are required to cover.
This case did not present a question of whether requiring abortion coverage violates the religious freedom rights of the Catholic organization filing suit. Los Angeles Times reports on the decision.

9th Circuit Dismisses Suit After Prison Recognizes Humanism As Faith Group

In Espinosa v. Dzurenda,  (9th Cir., Aug. 22, 2019), the U.S. 9th Circuit Court of Appeals dismisse as moot a challenge to a prison’s failure to recognize Humanism as a Faith Group. While the appeal was pending, the prison changed its policy and permanently recognized Humanism on an equal basis with other faith groups.  Nevada Independent reports on the decision.

Thursday, August 22, 2019

38 Abuse Victims Sue Over Yeshiva University High School's Failure To Supervise

Relying on New York's Child Victims Act which has created a one-year window for old child sex abuse cases to be filed, 38 men filed a lawsuit today against Yeshiva University High School and its parent organization, Yeshiva University, as well as various administrators of the schools. The suit alleges repeated sexual molestation of plaintiffs by a high administrator (who eventually became principal), a Judaic studies faculty member and a dorm counselor. The 120-page complaint (full text) in Twersky v. Yeshiva University, (NY Cty. Sup. Ct., filed 8/22/2019) alleges that the schools and their administrators were negligent in supervising and retaining the abusers, and in failing to provide a safe and secure environment for students. The Forward, reporting on the case, notes that a similar suit filed before enactment of the Child Victims Act was dismissed on statute of limitations grounds in 2014.

Catholic High School Sues Over Restrictions On Athletic Field Use

A Madison, Wisconsin Catholic high school has filed suit challenging the manner in which the city's zoning code is being applied to the school.  The complaint (full text) in Edgewood High School of the Sacred Heart, Inc. v. City of Madison, Wisconsin, (WD WI, filed 8/21/2019), alleges violations of RLUIPA as well as various other federal, state and local constitutional and statutory provisions. Because a master plan filed by the school in connection with the renovation of its athletic field stated that it would be used for team practices and physical education classes, zoning authorities contend that it cannot be used for athletic contests, even though the field had been used for nearly a century to host such games. The complaint alleges:
All of the City’s public high schools and the University of Wisconsin-Madison share the same zoning classification as Edgewood, yet the City is imposing these restrictions on Edgewood alone....
The City has treated Edgewood on less than equal terms with the non-religious institutions located and operating within the City’s Campus-Institutional District. 
 Wisconsin State Journal, reporting on the case, explains:
Edgewood’s attorneys have contended that [the master plan] wasn’t meant to be an exhaustive list of uses, while residents have suggested games were intentionally left out to allay neighbors frustrated with the increased use of the field since it was upgraded in 2015.
Residents of the surrounding Dudgeon-Monroe neighborhood have organized against Edgewood’s attempts to bring further improvements to the field — especially a 2017 plan that would have added stadium seating, lights, a sound system and permanent bathrooms — arguing that the field disrupts their quiet neighborhood. Many put signs in their yard reading, “No new stadium.”

3rd Circuit: Abortion Clinic Buffer Zone Challenge Remanded For Trial

In Turco v. City of Englewood, New Jersey, (3d Cir., Aug. 19, 2019), the U.S. 3rd Circuit Court of Appeals held that neither side was entitled to summary judgment in a challenge to Englewood's ordinance creating an 8-foot buffer zone around abortion clinics. The ordinance was enacted in response to aggressive anti-abortion protests that regularly occurred outside one clinic. In reversing the district court's grant of summary judgment to plaintiff and remanding the case for further proceedings, the appeals court said in part:
This record contains a multitude of contradicting factual assertions. Some facts suggest that the buffer zones imposed a significant restraint on the plaintiff’s ability to engage in constitutionally-protected communication. Others support Englewood’s position that the buffer zones hardly affected plaintiff’s ability to reach her intended audience. Some facts support plaintiff’s argument that the City had foregone less restrictive options to address the chaotic environment outside of the clinic. Others show that Englewood considered these options and reasonably rejected them or found them to be ineffective. In short, the record does not conclusively demonstrate that either party is entitled to summary judgment on the narrow tailoring claim.
North Jersey Record reports on the decision. [Thanks to Tom Rutledge for the lead.]

Wednesday, August 21, 2019

Cardinal Pell's Conviction Upheld

In Australia, the Victoria Court of Appeal has affirmed the conviction of Cardinal George Pell for sexual offenses.  The court has published a summary of the judgment in Pell v. The Queen, (Victoria Ct. App., Aug. 21, 2019) indicating that the court , by a 2-1 vote, dismissed the appeal. (Case page.) The court's summary says in part:
Cardinal Pell’s conviction and this appeal have attracted widespread attention, both in Australia and beyond. He is a senior figure in the Catholic Church and is internationally well known. As the trial judge, Chief Judge Kidd, commented when sentencing Cardinal Pell, there has been vigorous and sometimes emotional criticism of the Cardinal and he has been publicly vilified in some sections of the community. There has also been strong public support for the Cardinal by others. Indeed, it is fair to say that his case has divided the community.
Catholic News Service reports on the decision.

Author's Suit Against Libraries and Media Is Dismissed

In Egli v. Chester County Library System, (ED PA, Aug. 12, 2019), a Pennsylvania federal district court dismissed a pro se lawsuit brought by the author of a book on anti-Semitism against several libraries, and radio and television stations.  The libraries refused plaintiff's offer to present book talks, and the media defendants refused to interview him on air. The court said in part:
Libraries are not required to accommodate every book or proposed talk, but instead must determine based on their professional judgment which materials are deemed to have “requisite and appropriate quality” to occupy the limited space available. There is nothing in the Complaint to suggest that either MCLS or CCLS had policies or customs that are inconsistent with this constitutionally permissible discretion or that target certain viewpoints.
Pennsylvania Record reports on the decision.

Rules On Tribal Possession of Eagle Remains Are Liberalized

The U.S. Fish and Wildlife Service announced last week that it has revised its policy on handling of bald and golden eagle remains found on lands of recognized Indian tribes. Under previous rules, the remains would be transferred to the National Eagle Repository.  Now, federally recognized tribes that wish to keep eagle remains found on their land will be able to do so once they report the find to law enforcement officials and officials determine that the eagle was not taken intentionally and does not pose human health risks:
Under the updated policy, a federally recognized Tribe must receive a permit prior to possessing eagle remains found within Indian Country. When a Tribal member or an employee of a federally recognized Tribe discovers eagle remains, he or she must report it immediately to Tribal or Service law enforcement officials.
Eagle remains found and reported may be eligible for return to the federally recognized Tribe for religious purposes after the Service completes any activities it deems necessary for law enforcement or for scientific management reasons.
Salt Lake Tribune reports on the rule change.

Tuesday, August 20, 2019

California Priest Sues Accusers In Defamation Lawsuit

A defamation lawsuit was filed earlier this month in a California state trial court by Fresno, California, Catholic priest Msgr. Craig Harrison who has been accused of sexually assaulting an altar boy, as well as of other sexual misconduct. The complaint (full text) in Harrison v. Roman Catholic Faithful, Inc., (CA Super. Ct., filed 8//6/2019), alleges that the organization Roman Catholic Faithful and its president Stephen Brady at a press conference falsely accused Harrison of sexually abusing two high school students. An investigation by the Bakersfield police department has cleared Harrison, but a press release from the organization Church Militant contends that the investigation ignored numerous witnesses against Harrison who has served as the police department's chaplain.

Suit Over Use of Civic Center For Religious Worship Is Settled

A joint consent decree (full text) was filed yesterday in a South Carolina federal district court in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, Aug. 19, 2019), settling a lawsuit over restrictions on the use of the Edisto Beach Civic Center.  The decree reflects the town's action rescinding its prohibition on renting out space in the Civic Center for “religious worship services.” The town also agreed to pay $3112 in damages plus plaintiff's attorney's fees. As explained in a press release from ADF:
Shortly after the lawsuit began, the U.S. Department of Justice filed a statement of interest in the case in favor of the church. The lawsuit argued that the town’s previously amended guidelines were inconsistent and amounted to viewpoint discrimination—allowing some groups “to engage in singing, teaching, social interaction, and similar expressive activities” at the center while denying “access to those groups that engage in those same activities from a religious viewpoint.”

Monday, August 19, 2019

Bibles Are Excluded From Tariffs On Chinese Goods

Christianity Today reported last week that Bibles and other religious books have been removed from the list of items produced in China that will be subject to U.S. tariffs. Printing companies in China are the world's largest supplier of Bibles, publishing millions of copies each year. A statement from SBC’s Ethics and Religious Liberty Commission points out that "Bibles contain a large amount of text that must be formatted to a bound book on thin paper. China has been specializing in this printing technology for decades..."

EEOC Wins Settlement of Suit Brought On Behalf of Seventh Day Adventists

EEOC last week announced the settlement of a lawsuit it had filed against an  Ooltewah, Tennessee, senior and assisted living community.  Garden Plaza at Greenbriar Cove required two Seventh Day Adventist employees to work on Saturdays, and asked them to resign when they refused to do so.  In the settlement, Garden Plaza will pay $92,586.50 in damages, and enter a 2-year consent decree requiring it to train employees on Title VII matters.

Recent Articles and Forthcoming Books of Interest

From SSRN:
Forthcoming Books:

Sunday, August 18, 2019

Texas Limit On Marriage Officiants Upheld

In Center for Inquiry, Inc. v. Warren, (ND TX, Aug. 16, 2019), a Texas federal district court rejected a number of constitutional challenges to a Texas law that limits those who can officiate at marriage ceremonies to clergy and specified government official. It does not allow other secular celebrants. The court, applying the Lemon test held that the law does not violate the Establishment Clause, saying in part:
The Statute does not discriminate among religions nor does it have the primary objective of favoring religion over nonreligion. At most, the Statute provides a benefit to religion that is indirect or incidental in light of the historical context of this Statute; however, this does not make the Statute unconstitutional.... The Statute still provides for civil, nonreligious ceremonies performed by judges, while also allowing those who wish to be married in a religious ceremony to do so.
The court also rejected an equal protection challenge, saying in part:
The Statute in this case rationally serves that purpose by limiting secular officiants to current and retired judges and by leaving it up to the religious organization—any religious organization—to determine who is authorized in accordance with its belief system to solemnize marriages. The fact that the Statute does not allow every secular individual trained to solemnize marriages to legally solemnize marriages in Texas does not make this statute unconstitutional. Instead, there is a rational basis for the Statute’s limitation based on both the historical practice of allowing judicial and religious officials to solemnize marriages, and because these individuals and their respective organizations can reasonably be expected to ensure the prerequisites to marriage are met and that the ceremony contains the necessary level of respect and solemnity without the need for significant involvement and oversight by the state.

Friday, August 16, 2019

Court Temporarily Enjoins New Jersey's Assisted Suicide Law

Fox29 News reports that on Wednesday, a New Jersey state trial court judge issued a temporary restraining order preventing the state's Aid in Dying for the Terminally Ill Act from being enforced.  The bill took effect on Aug. 1. (Background).  The suit challenging the Act was brought by an Orthodox Jewish physician who says that the law is an affront to religious doctors.  Sec. 26-16-17(c) of the Act provides:
If a health care professional is unable or unwilling to carry out a patient's request under P.L.2019, c.59 (C.26:16-1 et al.), and the patient transfers the patient’s care to a new health care professional or health care facility, the prior health care professional shall transfer, upon request, a copy of the patient's relevant records to the new health care professional or health care facility.
The lawsuit alleges that this requirement to transfer records violates doctors' rights to practice medicine without breaching the fiduciary duties of their patients as well as doctors' rights "to freely practice their religions in which human life is sacred and must not be taken." A hearing in the case is set for October.

6th Circuit: City Did Not Ban All Mention of Religion At Council Meeting On Mosque Construction

In Youkhanna v. City of Sterling Heights, (6th Cir., Aug. 14, 2019), the U.S. 6th Circuit Court of Appeals rejected challenges to the manner in which the city of Sterling Heights, Michigan conducted a raucous city council meeting at which settlement of a RLUIPA lawsuit was being considered.  At issue was the city's settlement of a zoning dispute under which the American Islamic Community Center was permitted to build a mosque in the city.  City Council placed limits on the scope of comments that citizens could make during the meeting, and eventually cleared the meeting room when the audience became disruptive.

Plaintiffs objected that their 1st Amendment rights were infringed when the mayor told the audience at the meeting:
We do not need any comments about anybody’s religion, that is not the purpose of this meeting tonight and any comments regarding other religions or disagreements with religions will be called out of order.
The court responded:
This was not, as plaintiffs would have, a ban on talking about religion. This is clear from the fact that comments mentioning religion—including comments mentioning Islam specifically—were allowed when they were relevant to zoning issues....
The court also rejected a number of other challenges to the conduct of the meeting, including an Establishment Clause claim.  Detroit News reports that plaintiffs intend to seek en banc review of he decision.

Pro-Life Advocate Nominated For Missouri Federal District Judgeship

On Wednesday the White House announced a number of intended judicial, US Attorney and US Marshall nominations. Among these are the nomination of  Sarah Pitlyk for a judgeship on the U.S. District Court for the Eastern District of Missouri. The St. Louis Post-Dispatch details her past work on pro-life and religious liberty issues:
Pitlyk is special counsel to the Chicago-based Thomas More Society, a not-for-profit law firm "dedicated to restoring respect in law for life, family, and religious liberty." At the society, she worked to defeat an "abortion sanctuary city" ordinance in St. Louis, and on "several landmark pro-life and religious liberty cases." ...
Pitlyk was involved in a dispute over whether a divorced St. Louis County couple's frozen embryos were property or "unborn children" under Missouri law; a civil lawsuit filed against Planned Parenthood by a man acquitted of a bomb threat charge; and the defense of a man accused in California of making a false exposé claiming Planned Parenthood was selling fetal tissue....
Pitlyk graduated summa cum laude from Boston College before receiving master’s degrees in philosophy from Georgetown University and in applied biomedical ethics from the Katholieke Universiteit Leuven in Belgium, where she was a Fulbright Scholar...
She graduated from Yale in 2008 ... [where she] founded Yale Law Students for Life.

Money Damages Unavailable Under RFRA

In Ajaj v. United States, (SD IL, Aug. 13, 2019), an Illinois federal district court, passing on an issue on which several circuits are split, held that money damages are not available in suits under the Religious Freedom Restoration Act against federal officials in their individual capacities. The suit was brought by a Muslim inmate who claims prison officials burdened his religious practices. The court said in part:
[T]he Religious Land Use and Institutionalized Persons Act (RLIUPA)—RFRA’s “sister statute” that applies against the states ... contains nearly the exact same operative language as RFRA....But the Supreme Court has already held that damages against the states were not “appropriate relief” under that statute because Congress must “give clear direction that it intends to include a damages remedy” against a State for one to be available.....
While Ajaj says that the Court should treat RLIUPA and RFRA differently because Congress enacted RLIUPA under the Spending Clause, that looks like a red herring. “Given that RFRA and RLUIPA attack the same wrong, in the same way, in the same words, it is implausible that ‘appropriate relief against a government’ means something different in RFRA, and includes money damages.”