Monday, June 17, 2019

Certiorari Denied In Contraceptive Mandate Case

The U.S. Supreme Court today denied review in Little Sisters of the Poor v. California, (Docket No. 18-1192, certiorari denied 6/17/2019). (Order List).  In the case, the U.S. 9th Circuit Court of Appeals in a 2-1 decision affirmed in part a preliminary injunction issued by a California federal district court against enforcement of the Trump Administration's Interim Final Rules expanding religious and moral exemptions to the Affordable Care Act Contraceptive Coverage Mandate. (See prior posting.) The Interim Rules have now been replaced by Final Rules. (See prior posting.)

Supreme Court Vacates and Remands Same-Sex Wedding Cake Case

The U.S. Supreme Court today granted certiorari, vacated the judgment of the Oregon Court of Appeals and remanded for further consideration the case of Klein v. Bureau of Labor & Industries, (Docket No. 18-547, 6/17/2019). (Order List). In the case, the Oregon Court of Appeals agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. (See prior posting.)  The Supreme Court ordered reconsideration in light of its decision in Masterpiece Cakeshop last year.

Recent Articles of Interest

From SSRN:
From SSRN (Islam and Islamic Law)::
From SmartCILP:

Sunday, June 16, 2019

German Court Rejects City's Ban On"Burkini"

Breibart News today reports:
The ban on the sharia-compliant swimwear known as the “burkini” has been overturned by the higher administrative court in the German federal state of Rhineland-Palatinate after a judge decided the ban violated the constitution.
The ban originated in the city of Koblenz and began on the 1st of January but was challenged by a Syrian asylum seeker who claimed that she required the swimwear for religious reasons and also needed to use the swimming pool because she suffers from back problems...
 According to the Higher Administrative Court, the ban violated the German constitution’s requirement for equal treatment. The city had argued that the burkini made it impossible to know whether or not those wearing them suffered from any hygienic issues or diseases....

Saturday, June 15, 2019

Suit In Canada Seeks To Move Election Day To Avoid Jewish Holiday

A lawsuit was filed last week in federal court in Canada seeking to move the upcoming federal election from Oct. 21 to Oct. 28.  According to Vos Iz Neias:
Shemini Atzeret comes out this year on Election Day, Oct. 21, which would prevent observant Jews from casting their ballots. Of the four advance polling days, three are on other Jewish holidays or Shabbat....
Chani Aryeh-Bain, the Conservative Party candidate for the Toronto-area district of Eglington-Lawrence, and voter Ira Walfish of York Centre, also a Toronto-area district, filed the suit claiming that the election date discriminates against observant Canadian Jews.
Aryeh-Bain is an observant Jew and therefore would not be able to campaign on Election Day, the lawsuit says....
[Thanks to Steven H Sholk for the lead.]

Friday, June 14, 2019

U.S. Catholic Bishops Adopt New Accountability Measures

The U.S. Conference of Catholic Bishops announced yesterday that during its June 11-14 General Assembly it has adopted additional measures to deal with clergy accountability for sex abuse:
The first vote, Protocol Regarding Available Non-Penal Restrictions on Bishops, passed by 212 to 4 with 1 abstention. This form of accountability provides protocols for imposing limitations on former bishops who were removed from office for grave reasons. It also empowers the USCCB president to restrict bishops removed or resigned for reasons related to sexual abuse or abuse of power.
A second vote, Acknowledging Our Episcopal Commitments passed by 217 to 1 with 2 abstentions. This accountability measure implements a bishop code of conduct, including the affirmation that the Charter for the Protection of Children and Young People is expanded to include bishops as well as priests and deacons.
The third vote, Directives for the Implementation of the Provisions of Vos estis lux mundi Concerning Bishops and their Equivalents, presents a plan for optimal implementation of Pope Francis’s recent Motu proprio in the United States, including an outline for lay involvement. It passed by 218 to 1 with 2 abstentions.
Yesterday, the body of bishops passed another bishop accountability reform, voting for the establishment of a Third-Party Reporting System for receiving confidentially, by phone and online, reports of possible violations by bishops of Vos estis lux mundi. The action item commits to activating the system no later than May 31, 2020.

Bauer Reappointed To USCIRF

In a press release issued this week, the U.S. Commission on International Religious Freedom announced that President Trump has reappointed Commissioner Gary L. Bauer to an additional two year term.

New York Ends Religious Exemption From Vaccination Requirements

Yesterday New York's Gov. Andrew Cuomo signed into law A2371 (full text) repealing Pub. Health Law Sec. 2164, subd. 9 which has provided a religious exemption from mandatory vaccination requirements. In a press release announcing Cuomo's signing of the bill, the Governor's office said in part:
The United States is currently experiencing the worst outbreak of measles in more than 25 years, with outbreaks in pockets of New York primarily driving the crisis. As a result of non-medical vaccination exemptions, many communities across New York have unacceptably low rates of vaccination, and those unvaccinated children can often attend school where they may spread the disease to other unvaccinated students. This new law will help protect the public amid this ongoing outbreak....
Governor Cuomo said. "While I understand and respect freedom of religion, our first job is to protect the public health and by signing this measure into law, we will help prevent further transmissions and stop this outbreak right in its tracks."
USA Herald reports on the new law.

Church Sues Over Its Removal As Polling Place

A suit was filed this week in a California federal district court by a Unitarian Church that was removed by election officials as a polling place because the church displayed two Black Lives Matter banners on its property and would not remove them for election day.  The complaint (full text) in Unitarian Universalist Church of Fresno v. Orth, (ED CA, filed 6/10/2019) contends that eliminating the church as a voting location violates its First Amendment free expression rights. Religion News Service reports on the lawsuit.

$4.1M Damages Awarded To Muslim Comedian Against Neo-Nazi Website

Religion News Service reports that in a suit by Muslim comedian Dean Obeidallah against the publishers of the neo-Nazi website the Daily Stormer, an Ohio federal district court awarded plaintiff $4.1 million in damages for defamation.  In Obeidallah v. Anglin, (SD OH, June 13, 2019), the court awarded damages implementing its earlier determination that defendants acted with actual malice when they falsely claimed that Obeidallah was part of ISIS and was the mastermind behind the 2017 bombing of a concert that killed 22 people. The court also issued an injunction directing defendants to forthwith remove from its website, Twitter and other social media accounts any reference to Obeidallah that describes him as a terrorist or a member of ISIS.

Thursday, June 13, 2019

Hung Jury In Trial of Activist For Aiding Aliens

AP reports that a mistrial was declared Tuesday after an Arizona federal court jury was unable to reach a verdict in the prosecution of Scott Warren, a volunteer with the humanitarian group No More Deaths. Warren was charged with concealing and harboring aliens after he offered aid to two migrants near the U.S.-Mexico border. Warren's defenses included a claim that his actions were protected by the Religious Freedom Restoration Act. (See prior posting.) [Thanks to Stephanie Inks for the lead.]

District Court Nominee Withdraws Amid Controversy Over Brief In 1st Amendment Case

The Hill and the Kansas City Star report that Michael Bogren, a Trump judicial nominee for a seat on the federal district court for the Western District of Michigan, has withdrawn himself from consideration amid claims that he is anti-Catholic.  Three Republican members of the Senate Judiciary Committee indicated their opposition to Bogren because of a brief he filed in a 2017 case defending the City of East Lansing. Vendor Guidelines for East Lansing's Farmers' Market required vendors to comply with the civil rights ordinance as a general business practice. The Catholic owner of Country Mill Farms was denied a vendor permit because, while the Farm hosts weddings at its orchard, it refuses on religious grounds to host same-sex weddings.  (See prior posting.) In the brief, Bogren argued that the First Amendment does not create an exception for discrimination based on religious beliefs any more than it does for a member of the Ku Klux Klan refusing to serve African Americans.

Members of Bogren's law firm, Plunkett Cooney, wrote a letter (full text) on June 7 strongly defending Bogren, saying that criticism of him is misinformed. Michigan's two Democratic Senators supported Bogren.  But Missouri Republican Senator Josh Hawley, one of Bogren's chief critics, argued: "He could have given a vigorous defense to his client without stooping to calling this Catholic family equivalent to members of the KKK, comparing them to radical Islamic jihadists."

Court Says Conversion Therapy Provider Violated Injunction

In Ferguson v. JONAH, (NJ Super. Ct., June 10, 2019), a New Jersey state trial court judge held that the organization JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor, have violated a permanent injunction issued in 2015. JONAH provided "conversion therapy" that it falsely claimed could change an individual from gay to straight.  Instead of appealing the decision, defendants entered a confidential settlement agreement and agreed to the issuance of a permanent injunction requiring JONAH to cease operations and liquidate. (See prior posting.) The court held that defendants' new organization, JIFGA (Jewish Institute for Global Awareness), is a mere continuation of JONAH.  reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Lesbian Couple Has Standing To Challenge Grants To Catholic Foster Care Agency

In Marouf v. Azar, (D DC, June 12, 2019), the U.S. District Court for the District of Columbia held that a lesbian couple (as well as an organizational plaintiff) lack taxpayer standing to challenge federal grants to a Catholic non-profit organization which refuses to place unaccompanied refugee children for foster care with same-sex couples.  However, the court held that the couple does have individual standing to pursue their Establishment Clause, Equal Protection and Due Process challenges to the grants.  The court said in part:
According to the Federal Defendants, a federal agency cannot be held to account for a grantee’s known exclusion of persons from a federally funded program on a prohibited ground. That is an astonishing outcome. Surely, the government would not take this position if, say, Plaintiffs here were excluded from fostering a child based on their gender (both are women), national origin (Marouf is the daughter of Egyptian and Turkish immigrants), or religious faith (Marouf was raised a Muslim, Esplin a Mormon). Yet, despite conceding that there is no agency policy that prevents child placement with same sex couples ..., the Federal Defendants in this case wish to avoid the responsibility that comes with being good stewards of federal funds. They cannot do so.

Cert. Petition Filed In Challenge To Restrictions On Abortion Clinic Sidewalk Counseling

Last week (June 7), a petition for certiorari (full text) was filed in Price v. City of Chicago. In the case, the U.S. 7th Circuit Court of Appeals (full text of decision) upheld Chicago's floating "bubble zone" ban on sidewalk counseling outside abortion clinics. The 7th Circuit relied on a 2000 U.S. Supreme Court decision which has not been overruled. However the 7th Circuit said that the 2000 case has been "unsettled" by later Supreme Court decisions. Thomas More Society issued a press release announcing the filing of the petition seeking Supreme Court review.

Wednesday, June 12, 2019

Botswana Court Strikes Down Ban on Homosexuality

New York Times reports that yesterday Botswana's High Court struck down the country's ban on homosexuality.  The Court held unconstitutional Section 164 of the Botswana Penal Code that prohibits having "carnal knowledge ... against the order of nature."  Homosexuality was first outlawed in the late 1800's when the Botswana was the British colony of Bechuanaland.

Texas Governor Signs "Save Chik-fil-A" Law

On Monday, Texas Gov. Greg Abbott signed into law S.B. 1978 (full text) which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. According to KXAN News:
The bill was brought forward by Republicans after San Antonio City Council voted in March to exclude Chik-fil-A from having airport concessions in their city because of the fast-food chain's owners' record on LGBT issues, specifically over donations to the Fellowship of Christian Athletes, the Salvation Army, and a George youth home; whose leaders advocate for marriage to be between one-man and one-woman.
The law has become known as the "Save Chik-fil-A bill."

Justice Department Files Statement of Interest In Challenge To Maine's Exclusion of Parochial Schools From State Program

The Justice Department announced on Monday that it has filed a Statement of Interest in a suit brought in a Maine federal district court by parents and students claiming unconstitutional discrimination against religious schools.  In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  The suit challenges the Maine law that bars paying tuition for students to attend sectarian schools under this program. (See prior posting.) The Justice Department said in part:
Today’s filing addresses issues set forth in the Department of Justice’s Guidance on Federal Law Protections for Religious Liberty issued on Oct. 6, 2017, at the direction of President Trump’s  May 4, 2017, Executive Order Promoting Free Speech and Religious Liberty.
AP reports on DOJ's action. [Thanks to Tom Rutledge for the lead.]

Israel's Supreme Court Approves Disputed Sales of Greek Orthodox Church Properties

Jerusalem Post and AFP report on a decision of the Israeli Supreme Court on Monday approving the 2004 sale (or in one case, the 99-year lease) by the Greek Orthodox Church of three properties in the Old City of Jerusalem to the Jewish organization Ateret Cohanim. The goal of Ateret Cohanim is to extend Jewish ownership over property in East Jerusalem by purchasing Palestinian-owned property through front companies. Ateret Cohanim paid over $1.8 million for the properties.  The Greek Orthodox Patriarchate claims that the sales were made by its director of finance, Nicholas Papadimas, without proper authorization. It also claimed that Papadimas was bribed to advance the sales. Disclosure of the sales led to the Church's dismissal of Patriarch Irineos I and his replacement by Patriarch Theophilos III. The 3-judge panel of the Supreme Court affirmed the trial court's decision upholding the legality of the sales.

Two More Suits Challenge Expanded Religious Accommodation For Health Care Providers

Suit was filed yesterday in New York federal district court challenging rules recently adopted by the U.S. Department of Health and Human Services (see prior posting) expanding the protection of conscience rights for health care providers.  The 63-page complaint (full text) in National Family Planning and Reproductive Health Association v. Azar, (SD NY, filed 6/11/2019) alleges that:
The Final Rule encourages and authorizes discrimination by unlawfully granting a wide swath of institutions and individuals broad new rights to refuse to provide health care services and information.
The complaint elaborates:
The Rule will exacerbate existing systemic barriers by endangering Plaintiffs’ members’ ability to provide care to already underserved populations. For example:
  • By requiring the absolute accommodation of an employee’s refusal to provide certain information and services, the Final Rule could at any time force Plaintiffs to reduce the availability or scope of services they provide or even eliminate them entirely, particularly in small locations that may rely on a single staff member to perform multiple job functions.
  • By prohibiting Plaintiffs from even asking job applicants whether they are willing to perform basic job requirements, and because the Final Rule does not require employees who intend to refuse to so notify their employers or their patients, neither Plaintiffs nor their patients may be aware when a staff member is denying a patient access to needed care or information;
  • By prohibiting those of Plaintiff NFPRHA’s members who are state and local governmental Title X grantees from requiring sub-recipients to comply with the statutory and regulatory requirements of Title X’s abortion counseling and referral, the Final Rule will systematically undermine the integrity of the Title X program, further jeopardizing the ability of Plaintiffs’ patients to access necessary health care and make voluntary, informed decisions about their reproductive health.
The ACLU issued a press release announcing the filing of the lawsuit.

Separately, Planned Parenthood filed a similar lawsuit. (Full text of complaint in Planned Parenthood Federation of America, Inc. v. Azar, (SD NY, filed 6/11/2019). Courthouse News Service reports on this lawsuit.

A similar challenge to the new Rule was filed last month by a number of states and cities. (See prior posting.)

Tuesday, June 11, 2019

During LGBTQ Pride Month, Vatican Issues Document On Gender Theory In Education

The Vatican's Congregation for Catholic Education yesterday issued a 32-page document titled Male and Female He Created Them: Towards a Path of Dialogue on the Question of Gender Theory in Education. (Full text). The document says in part:
There is a need to reaffrm the metaphysical roots of sexual difference, as an anthropological refutation of attempts to negate the male-female duality of human nature, from which the family is generated. The denial of this duality not only erases the vision of human beings as the fruit of an act of creation but creates the idea of the human person as a sort of abstraction who “chooses for himself what his nature is to be. Man and woman in their created state as complementary versions of what it means to be human are disputed. But if there is no pre-ordained duality of man and woman in creation, then neither is the family any longer a reality established by creation. Likewise, the child has lost the place he had occupied hitherto and the dignity pertaining to him”.
According to Vatican News:
The new document is intended as an instrument to help guide Catholic contributions to the ongoing debate about human sexuality, and to address the challenges that emerge from gender ideology.
As reported by CBS News,  the document, issued during LGBTQ Pride Month, was criticized by LGBTQ advocacy groups.

Another Suit Filed Against Masterpiece Cakeshop For Refusal To Create Cakes For LGBT Events

Another lawsuit has been filed against Masterpiece Cakeshop owner Jack Phillips, this time over his refusal on religious grounds to create a pink birthday cake with blue icing for a transgender female customer.  The complaint (full text) in Scardina v. Masterpiece Cakeshop, Inc., (CO dist. Ct., June 5, 2019), contends that the refusal violates Colorado's anti-discrimination and deceptive practices acts. This suit was filed by the aggrieved customer after litigation over the same issue between Phillips and the Colorado Civil Rights Commission was dropped. (See prior posting.)  Last year the U.S. Supreme Court on narrow grounds ruled against the Colorado Civil Rights Commission in its attempt to issue a cease and desist order against Masterpiece Cakeshop for its refusal to provide a wedding cake for a same-sex marriage. (See prior posting.) Christian Post reports on the most recent lawsuit.

Arkansas Supreme Court OKs Limits On Leaders of Prison Religious Services

In Mutaqim v. Lay, (AR Sup. Ct., June 6, 2019), the Arkansas Supreme Court rejected challenges by a Nation of Islam inmate to two separate prison policies. The Court upheld the denial in 2013 to 2015 of several issues of the NOI publication The Final Call because they suggested that readers "rise up and strike out at their oppressors." These were censored to protect prison safety and security. The court also upheld a policy barring religious services from being led by inmates, and allowing them to be led by outsiders only if they are credentialed volunteers who are responsible for the orthodoxy of the religion or sect. NOI volunteers could not be found.  The Court said in part:
During the hearing, ADC’s chaplain testified that this policy is designed to protect prison security and order by preventing the dissemination of unorthodox or heretical views to the respective religion or sect, which could result in violence.  As indicated above, prison security is the most compelling government interest in the prison setting.

Air Force Grants Religious Accommodation To Sikh Airman

In a press release last week, the ACLU announced that for the first time, the U.S. Air Force has granted a religious accommodation to a Sikh active duty airman to allow him to wear a turban, beard, and unshorn hair.  The U.S. Army had previously granted similar accommodations. (See prior posting.)

Cert. Denied In Challenge To "In God We Trust" On Currency

Yesterday the U.S. Supreme Court denied review in New Doe Child #1 v. United States, (Docket No. 18-1297, certiorari denied 6/10/2019). (Order List). In the case, the U.S. 8th Circuit Court of Appeals in interesting opinions rejected a constitutional challenge to the placement of the motto "In God We Trust" on U.S. coins and currency.  (See prior posting.) Washington Times reports on the decision.