European Court: Ukraine Violates Human Rights Convention by Denying Legal Recognition to Same-Sex Couples

In Maymulakhin & Markiv v. Ukraine, (ECHR, June 1, 2023), the European Court of Human Rights in a Chamber Judgment held that Ukraine violated Article 14 (prohibition of discrimination) of the European Convention on Human Rights taken in conjunction with Article 8 (right to respect for private and family life) by denying any form of legal recognition to same-sex couples. The Court said in part:

While the Court has to date not interpreted Article 8 of the Convention as imposing a positive obligation on the States Parties to make marriage available to same-sex couples, it has confirmed that in accordance with their positive obligations under that provision, the member States are required to provide a legal framework allowing same‑sex couples to be granted adequate recognition and protection of their relationship.... The Court has also held that Contracting States enjoy a more extensive margin of appreciation in determining the exact nature of the legal regime to be made available to same sex couples....

The Court ordered Ukraine to pay the two petitioners 5032 Euros each as damages and to pay 4000 Euros for costs and attorney's fees.

The Court also issued a press release (PDF download link) summarizing its decision.

Nevada Governor Vetoes Medical-Aid-In-Dying Bill

On Monday, Nevada Governor Joe Lombardo vetoed (full text of veto message) S.B. 239 (full text) which would have authorized physicians and advanced practice registered nurses to prescribe medications which a patient certified to be terminally ill could self-administer to end his or her own life. The Governor said in part:

Fortunately, expansions in palliative care services and continued improvements in advanced pain management make the end-of-life provisions in SB 239 unnecessary.

KLAS News reports on the governor's action.

State Law May Bar Women's Spa from Refusing to Serve Transgender Women Who Have Not Had Sex-Confirmation Surgery

In Olympus Spa v. Armstrong, (WD WA, June 5, 2023), a Washington federal district court dismissed, with leave to amend, a suit by a Korean style spa designed for women. The suit challenges Washington's public accommodation law which bars discrimination, among other things, on the basis of gender expression or identity.  Because spa patrons are required to be naked during certain spa services (massages and body scrubs), the spa refuses to serve transgender women who have not gone through post-operative sex-confirmation surgery. The spa advertises itself as welcoming "biological women." Three of the spas employees and one of its patrons are also plaintiffs in the case.  Plaintiffs claim that their requiring them to service nude males and females in the same rooms substantially burdens the exercise of their religious beliefs.  The court held however that because the public accommodation law is neutral and generally applicable, it needs to meet only rational basis review and does so because of the state's interest in ensuring equal access to public accommodation. 

The court also rejected plaintiffs' claim that their free expression rights were violated by requiring them to remove language from their website that only "biological women" are females. The court said in part:

The WLAD [Washington Law Against Discrimination] bars Olympus Spa from denying services to customers based on sexual orientation and, in this regard, it incidentally burdens Olympus Spa’s speech by prohibiting advertisement of discriminatory entrance policies (e.g., one that permits only “biological women”). But that does not convert the WLAD into a content-based regulation....

Finally, the court dismissed plaintiffs' freedom of association claims, saying in part:

The Court does not minimize the privacy concerns at play when employees are performing exfoliating massages on nude patrons. Aside from this nudity, though, there is simply nothing private about the relationship between Olympus Spa, its employees, and the random strangers who walk in the door seeking a massage. Nor is there anything selective about the association at issue beyond Olympus Spa’s “biological women” policy. The Court therefore has little difficulty concluding that the personal attachments implicated here are too attenuated to qualify for constitutional protection.

Miami Beach Settles Synagogue's Zoning Harassment Lawsuit for $1.3M

Miami Herald reports that a dispute between the Orthodox Jewish Congregation Bais Yeshaya D’Kerestir and Miami Beach, Florida zoning officials that was scheduled to go to trial in federal court yesterday has been settled, with the city agreeing to pay the Congregation $1.3 million on its 1st Amendment Code enforcement harassment lawsuit. (The city has already spent $1.7 million in legal fees on the case.) The city claimed that the 4-bedroom property at issue was operating as a synagogue in an area zoned residential. According to the Miami Herald:

People pray at the home daily, including for a minyan that requires at least 10 Jewish men to be present, according to the congregation. The congregation and its rabbi, Arie Wohl, argued that those prayer sessions — which sometimes include dozens of people, according to the city — are invitation-only and therefore constitute “private prayer.” 

“Just as any homeowner may invite friends for a Cub Scout meeting or a book club, Plaintiff and the full-time resident invite friends and family to join them for private prayer in their home,” the federal lawsuit says.

But the city says activity at the home went beyond private prayer. Code enforcement officers, using body-worn cameras, said they found evidence the house was operating as a synagogue, including an industrial-size coffee urn, a community bulletin board and benches for up to 30 people.

As part of the settlement agreement, the Congregation has agreed not to seek a religious tax exemption for the property in the future, and to restrict parking and use of outdoor speakers. The settlement also covered a related state court lawsuit.

Oklahoma Approves U.S.'s First Publicly Funded Religious Charter School

 Politico and the Tulsa World report that yesterday the Oklahoma Statewide Virtual Charter School Board by a vote of 3-2 approved the application of the St. Isidore of Seville Catholic Virtual School to become the country's first publicly-funded religious charter school.  Tulsa World explains that the deciding vote was cast by a Board member newly appointed only last Friday. According to Politico:

The split vote from the Oklahoma Statewide Virtual Charter School Board on Monday caps months of debate over government support for sectarian education that has divided the state’s educators and elected Republicans, including Gov. Kevin Stitt and Attorney General Gentner Drummond.

At issue is whether the requirement in the Oklahoma Constitution and the state's Charter Schools Act that public schools be non-sectarian violates the U.S. Constitution's free exercise clause. (See prior related posting.) Americans United says it is preparing to file suit to challenge the approval.

Abraham Cooper Eclected USCIRF Chair

The U.S. Commission on International Religious Freedom announced yesterday that it has elected Abraham Cooper as its Chair for 2023-24, saying in part:

... Cooper was appointed to the Commission by Senate Minority Leader Mitch McConnell. He is the Associate Dean and Director of Global Social Action for the Simon Wiesenthal Center (SWC), a leading Jewish human rights organization .... He is also a founder of the Global Forum on Anti-Semitism. An acknowledged expert on online hate and terrorism, he regularly meets with world leaders to defend the rights of the Jewish people, combat terrorism, and promote multi-faith relations worldwide.

Frederick A. Davie, advisor to the president of Union Theological Seminary, was elected Vice-Chair.

Court Refuses to Dismiss Suit by Civil Detainee Who Was Forced to Attend a Christian Religious Service

In Erie v. Hunter, (MD LA, May 31, 2023), a Louisiana federal district court refused to dismiss an Establishment Clause suit brought by a civil detainee at mental health facility who was forced to attend a Christian religious service at the facility by a psychiatric aide who claimed that she had to accompany 25 other residents to the service and could not leave plaintiff in his room unsupervised. The court said in part:

... [T]he State reverts to its position that ... Ms. Hunter faced a binary choice: either compel Mr. Erie's attendance at the worship service, or “refuse[] to allow the 25 other patients in SFF unit 1” to attend the service, thereby violating “their own free exercise rights.”.... And because the Supreme Court has rejected “a ‘heckler's veto' which would allow religious activity to be proscribed based upon [Mr. Erie's] perception or discomfort,” it was reasonable for Ms. Hunter to choose an “incidental infringement” on Mr. Erie's rights....

... [N]o reasonable official would confuse this case with a “heckler's veto” case. Mr. Erie is not challenging ELMHS's  practice of allowing weekly worship services in the SFF recreation hall, and there is no evidence whatsoever that Mr. Erie attempted to disrupt the January 9 worship service....

Second, and in any event, Mr. Erie has raised a fact dispute even regarding Ms. Hunter's claim that her choices were limited to forcing Mr. Erie to attend church or prohibiting the remaining SFF residents from attending church. Again, ELMHS's own investigation concluded that “there was [sic] other options [Ms. Hunter] could have use [sic] to locate other staff to stay with the [residents] who do not want to go to attend the religious services,”....

[Thanks to Glenn Katon for the lead.]

Recent Articles of Interest

From SSRN:

• Marc Spindelman, Stirrings of a Conservative Christian Rule of Law [in Alliance for Hippocratic Medicine v. FDA,  (The American Prospect (May 29, 2023)).
• Lucia Ann Silecchia, Property and Moral Responsibilities: Some Reflections on Modern Catholic Social Theory, (Texas A&M University Journal of Property Law, Vol. 9, Pp. 733-56, 2023).
• Adan Zulfiqar, Human Rights Norms from Below, (Yale Journal of International Law, Vol. 48, No. 1, 2023).
• J. Alex Touchet & Bradley J, Lingo, Failure to Accommodate: Assessing the Legacy of Trans World Airlines v. Hardison on Working-Class People of Faith, (George Mason Law Review Forum (Forthcoming)).
• Ajay Kumar, Two Different But Same Perspectives On Constitutional Morality, ((2022 Winter) ILI Law Review 258-275).
• Michael L. Smith, Idaho's Law of Constitutional Interpretation: Lessons from Planned Parenthood Great Northwest v. State, (Idaho Law Review, Vol. 59, Forthcoming).
• Linda C. McClain & James E. Fleming, Ordered Liberty after Dobbs, (Journal of the American Academy of Matrimonial Lawyers 623 (2023)).
• Qaz Irfan, Riba in Shariah, (May 14, 2023).

From SSRN (Articles & Book Introductions by John Witte, Emory Center for Study of Law & Religion);

• John Witte, The Protestant Reformation of Constitutionalism, (in Nicholas Aroney and Ian Leigh, eds., Christianity and Constitutionalism (Oxford: Oxford University Press, 2022), 126-48).
• John Witte, “Foreword” to Festschrift for Michael J. Perry,  (Emory Law Journal 71 (2022): i-iv).
• John Witte, “Foreword,” to Franciszek Longchamps de Bérier and Rafael Domingo, eds., Law and Christianity in Poland: The Legacy of the Great Jurists, (London: Routledge, 2022), ix-xii ).
• John Witte, Religious Freedom in Religious Education, (Advance (Fall, 2022), 1-10).
• John Witte, “Foreword,” to Zachary Calo, Joshua Neoh and Keith Thompson, eds.,Christianity, Ethics, and the Law: The Concept of Love in Christian Legal Thought,, (London: Routledge, 2023), xi-xiii).
• John Witte, “We Must Obey God Rather Than Men”: Lutheran Resistance Against Pope and Emperor in the Reformation Era, (in David Gides, ed., Uncivil Disobedience: Theological Perspectives (Minneapolis: Lexington Books, 2023), 75-92).
• John Witte, Introduction to In Defense of the Marital Family (Leiden: Brill, 2023), 1-5).
• John Witte, Biblical Foundations of Human Rights and Liberties, (Jahrbuch für biblische Theologie (with Eric Wang) , CSLR Research Paper No. __ Forthcoming).
• John Witte & Rafael Domingo Osle, Preface to Oxford Handbook on Christianity and Law, (Oxford: Oxford University Press, forthcoming).
• John Witte & Mathias Schmoeckel, Christianity and Procedural Law,  (in John Witte, Jr. and Rafael Domingo, eds., Oxford Handbook on Christianity and Law (Oxford: Oxford University Press, forthcoming)).

From SmartCILP:

• Philip A. Miscimarra, NLRA Coverage—The Search for Answers: Student Assistants, Religious Universities, Charter Schools, and Independent Contractors, 36 ABA Journal of Labor & Employment Law 25-74 (2022).
• Henry Amorosa, Paula Alexander Becker & Evan Weiss, A Social Contract: The Doctrine of Unconscionability and Its Relation to Social Progress, 28 Cardozo Journal of Equal Rights & Social Justice 51-78 (2021).
• R. George Wright, Free Speech and Antisemitism: Collin v. Smith Today, 20 First Amendment Law Review (2022).
• John M. Breen & Lee J. Strang, A Light Unseen: The History of Catholic Legal Education in the United States: A Response to Our Colleagues and Critics, 59 Journal of Catholic Legal Studies 1-50 (2020).
• David. A Dailge & Daniel V. Goff, Beyond Lawyer Assistance Programs: Applying the United States Marine Corps' Concepts and Principles of Spiritual Fitness as a Means towards Increasing the Health, Resiliency and Well-Being of Lawyers—While Restoring the Soul of the Profession, 59 Journal of Catholic Legal Studies 51-92 (2020).

Court Reaffirms Refusal to Dismiss Case Challenging 1st-Grade Teacher's Gender Identity Instruction

In Tatel v. Mt. Lebanon School District (II), (WD PA, May 31, 2023), a Pennsylvania federal district court reaffirmed its prior decision and concluded that parents of first-grade students have asserted plausible claims that their due process and free exercise rights, as well as their rights to familial privacy and equal protection, were violated by a teacher who pursued her own agenda in discussing gender identity with young students.  The court said in part:

This case ... involves not merely instruction to influence tolerance of other children or families, but efforts to inculcate a teacher’s beliefs about transgender topics in Plaintiffs’ own children. ... [T]he allegations in this case go beyond mere reading of a few books. Here, the teacher allegedly pursued her agenda throughout the school year, including teaching first-graders that their parents may be wrong about their gender, telling one boy could dress like his mother, and telling the children to keep the teacher’s discussions about gender topics secret from their parents.... [I]t was the children’s own family and their own gender identity that Williams targeted. Plaintiffs allege that Williams targeted one child for repeated approaches about gender dysphoria despite, or because of, the parents’ beliefs.... It is reasonable to infer that Williams intended to influence the children’s own gender identity and to have at least one child become like the teacher’s transgender child.

In assessing plaintiffs' free exercise claim, the court said in part: 

Plaintiffs allege that Williams’ agenda about gender dysphoria and transgender transitioning conflicts with their sincerely held religious and moral beliefs that “human beings are created male or female and that the natural created order regarding human sexuality cannot be changed regardless of individual feelings, beliefs, or discomfort with one’s identity, and biological reality, as either male or female.”... Plaintiffs contend that Defendants deliberately supplanted the parents’ role to control the instruction of their young children about their gender identity in accordance with their religious values ... and adopted a de facto policy that Williams could continue to advocate her agenda to first-graders in the future without notice or opt out rights for the parents.... As noted, this case is not about teaching kindness or tolerance, but about a teacher’s agenda to instruct first-graders that their parents’ religious beliefs about their own children’s gender are or may be wrong.....

Volokh Conspiracy has additional discussion of the case.

Lawsuit Challenges Laws Restricting Abortion Clinic Sidewalk Counselors

Suit was filed yesterday in a Colorado federal district court challenging on free speech grounds a Colorado statute and a Denver ordinance that prohibit approaching a person within 8 feet of an abortion clinic or other health care facility "for the purpose of passing a leaflet or handbill to ..., or engaging in oral protest, education, or counseling with such other person." According to the complaint (full text) in Faustin v. Polis, (D CO, filed 6/1/2023):

Defendants’ ban on approaching women outside of abortion clinics to speak with them unquestionably discriminates based on the content—and even the viewpoint—of speech. On its face, the ban applies only to speech with a particular purpose and message: speech “for the purpose . . . of engaging in oral protest, education, or counseling.”... And it targets only that speech on one side of the abortion debate: speech “protest[ing] or counsel[ing] against” what Colorado euphemistically terms “certain medical procedures.”... Defendants’ ban is also content- and viewpoint-based due to the nature of its justification: protecting the “unwilling listener’s interest in avoiding unwanted communication” from pro-life speakers when seeking “access to a medical facility.”...

First Liberty Institute issued a press release announcing the filing of the lawsuit.

Oklahoma Suprme Court Says 2 Anti-Abortion Laws Are Unconstitutional

In Oklahoma Call for Reproductive Justice v. State of Oklahoma, (OK Sup. Ct., May 31, 2023), the Oklahoma Supreme Court in a 6-3 decision held two recently enacted abortion bans unconstitutional under the state constitution.  In doing so, the court relied on its prior decision in Oklahoma Call for Reproductive Justice v. Drummond, (OK Sup. Ct., March 21, 2023)  which held that "a woman has an inherent right to choose to terminate her pregnancy if at any point in the pregnancy, the woman's physician has determined to a reasonable degree of medical certainty or probability that the continuation of the pregnancy will endanger the woman's life due to the pregnancy itself or due to a medical condition that the woman is either currently suffering from or likely to suffer from during the pregnancy." In the most recent case, the court said in part:

S.B. 1503 prohibits abortions after detection of a fetal heartbeat except in case of medical emergency. S.B. 1503 states in relevant part: "Sections 3 and 4 of this act shall not apply if a physician believes a medical emergency exists that prevents compliance of this act." S.B. 1503, § 5(A). There is no definition of medical emergency. There is also no severability clause.

H.B. 4327 on the other hand is a total ban on all abortions unless the "abortion is necessary to save the life of a pregnant woman in a medical emergency" or the "pregnancy is the result of rape, sexual assault, or incest that has been reported to law enforcement."... H.B. 4327 states that "'Medical emergency' means a condition in which an abortion is necessary to preserve the life of a pregnant woman whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself."...

Pursuant to this Court's decision in Oklahoma Call for Reproductive Justice v. Drummond ... we find these two statutes to also be unconstitutional....

The court concluded that the severability clause in HB 4327 was insufficient to save the statute. AP reports on the decision.

Football Coach Can Proceed on Some Claims Against University After Termination for Refusing Covid Vaccine

In Rolovich v. Washington State University, (ED WA, May 30, 2023), a Washington federal district court refused to dismiss failure to accommodate and breach of contract claims by the head football coach of Washington State University who was terminated after he refused to comply with the state's Covid vaccine mandate. Discussing plaintiff's Title VII failure to accommodate claim, the court said in part:

Plaintiff’s claim that his Catholic faith informed his decision not to receive the COVID-19 vaccine is sufficient at the pleading stage to meet the prima facie element that he has a bona fide religious belief.... Plaintiff has adequately pleaded the first element of the prima facie case for a failure to accommodate claim. Defendant does not challenge the remaining elements of Plaintiff’s prima facie case....

Defendant asserts that Plaintiff’s accommodation request would have resulted in increased travel costs, harm to recruitment and fundraising efforts, and damage to WSU’s reputation and donor commitments, in addition to an increased risk of exposure to COVID-19 to student athletes and other coaching staff....

While these claims of undue hardship may be supported by evidence not presently before the Court, they are insufficient on their own to support a finding that Plaintiff’s accommodation would have imposed an undue hardship....

The court concluded that the WSU Athletic Director was entitled to qualified immunity as to the coach's free exercise and due process claims. USA Today reports on the decision.

EEOC Sues Over Refusal to Accommodate Christian Employee's Belief Without Back-Up from Religious Leader

The EEOC announced yesterday that it has filed a Title VII suit against Triple Canopy, Inc., a Reston, Virginia-based company that provides protective services to federal agencies. The EEOC, alleging failure to reasonably accommodate an employee's religious beliefs, said in part:

[D]espite the employee’s repeated explanations that he did not belong to a formal religious denomination but nonetheless held a Christian belief that men must wear beards, Triple Canopy denied his request for a religious accommodation because the employee was unable to provide additional substantiation of his beliefs or a supporting statement from a certified or documented religious leader. Additionally, Triple Canopy subjected him to intolerable work conditions that resulted in his discharge.

British Court: Humanist Eligible to Sit on Advisory Council for Religious Education

In R (on the Application of Bowen) v. Kent County Council, (EWHC (Admin), May 26, 2023), a British High Court justice rejected a ruling of the Kent Conty Council regarding who is eligible for appointment to an advisory body on religious education in the county's schools. The court explained:

Mr Bowen sought to be appointed to join Group A of the Standing Advisory Council for Religious Education (‘SACRE’) of Kent County Council (‘KCC’). Pursuant to section 390(4)(a) of the Education Act 1996 (‘the 1996 Act’) ..., Group A is required to be ‘a group of persons to represent such Christian denominations and other religions and denominations of such religions as, in the opinion of the authority, will appropriately reflect the principal religious traditions in the area.’ KCC refused to appoint Mr Bowen because, as a humanist, Mr Bowen does not represent ‘a religion or a denomination of a religion’....

 ... [T]he ability to be a representative of a particular relevant belief on a SACRE is (at the very least) more than tenuously connected with that core value, so as to bring the alleged discrimination through the prevention of membership of SACRE within the ambit of article 9 [of the European Convention on Human Rights]..

... [A] religious education curriculum must, in order to be compliant with the HRA [Human Rights Act] 1998, cover more than religious faith teaching. The content of religious education teaching must include, at least to some degree, the teaching of non-religious beliefs (such as humanism).... 

The court concluded in part:

Analysed properly, when looking at membership of a group the purpose of which is to advise upon the content of a religious education syllabus, it is obvious that all people who are holders of belief systems appropriate to be included within that syllabus are in an analogous position. It is in my view clearly discriminatory to exclude someone from SACRE Group A solely by reference to the fact that their belief, whilst appropriate to be included within the agreed syllabus for religious education, is a non-religious, rather than a religious, belief.

Law & Religion UK has a lengthier analysis of the decision.

Uganda Enacts Harsh Ban on Homosexuality

Last Friday, Ugandan President Yoweri Museveni signed the Anti-Homosexuality Act 2023 (full text). The new law imposes the penalty of life imprisonment for anyone "who commits the offense of homosexuality." A person who commits the offense of "aggravated homosexuality" is liable for the death penalty. "Aggravated homosexuality" is defined, among other things, as homosexual relations with a child, a person with a disability, an elderly or unconscious person, a person who is mentally ill, or a homosexual act committed by the victim's parent or guardian, the offender is a serial offender, or the offense is committed by duress. Same-sex marriages are prohibited, as is promotion of homosexuality. Individuals have an obligation to report a reasonable suspicion that a person has or intends to engage in homosexual relations. A convicted person may be ordered to undergo "rehabilitation."

The Ugandan Parliament issued a press release announcing the President's signing of the Bill into law, with remarks by the bill's sponsor, Asuman Basalirwa. CNN reports on the passage of the law. On Monday, President Biden issued a Statement (full text) calling Uganda's new law "a tragic violation of universal human rights." U.S. Secretary of State Anthony Blinken also issued a Statement (full text) condemning Uganda's new law and saying in part:

[T]he Department of State will develop mechanisms to support the rights of LGBTQI+ individuals in Uganda and to promote accountability for Ugandan officials and other individuals responsible for, or complicit in, abusing their human rights.

Bloomberg News reports that a suit challenging the new law has already been filed in Uganda's Constitutional Court.

Sex Abuse Claims Arising Before Diocese Was Formed Are Disallowed in Bankruptcy Case

In In re Roman Catholic Diocese of Rockville Centre, New York, (SD NY Bkrptcy., May 26, 2023), a New York federal bankruptcy court disallowed nine sex-abuse claims filed in the bankruptcy reorganization of the Rockville Centre Catholic Diocese because they occurred before the Rockville Centre Diocese was formed and in territory which, at the time of the alleged abuse, belonged to the Diocese of Brooklyn. The court allowed claims by four other individuals to be filed in amended form because while they occurred before the Rockville Centre Diocese was incorporated in New York, they occurred after the Vatican formed the Diocese. The court said in part:

First, the Court finds that the First Amendment, and its intersection with canon law, is not a bar to the Court's ruling on this Objection. Second, the Court finds that the Objection must be sustained for Pre-Establishment Claims because the Diocese i) did not assume the prior liabilities and ii) the de facto merger exception does not apply. Finally, the Court finds that fairness requires allowing the Post-Establishment Claimants an opportunity to amend their claims.

Ministerial Exception and RFRA Defenses Rejected in Suit Over Firing of Bible Translation Company IT Employee

In Ratlliff v. Wycliffe Associates, Inc., (MD FL, May 26, 2023), a Florida federal district court refused to dismiss a Title VII employment discrimination suit brought against a Bible translation company by a software developer who was fired after the company learned that he had entered a same-sex marriage. The court rejected defendant's reliance on RFRA, concluding that "s RFRA does not apply to lawsuits in which the government is not a party."  It rejected defendant's "ministerial exception" defense, saying in part:

... Plaintiff does not qualify as a minister.

... Plaintiff was seemingly hired for his technological aptitude.... Accordingly, Plaintiff’s role was to employ his knowledge to develop software, not to act as a source of religious conveyance.... While the software’s purpose may have been to translate the Bible, Plaintiff himself was not doing so.... Further, Plaintiff’s direct interactions involved other software and database developers—not the individuals seeking out Defendant’s mission....

... [A]t bottom here, Plaintiff is a software developer, with no idiosyncratic religious title, background, education, or function.....