Limits On Rescheduling Hearings That Conflict With Religious Holidays Do Not Violate Free Exercise Rights

In Jack Jaffa & Associates v. City of New York, (NY Cty. Sup. St., March 21, 2019), a New York state trial court rejected a claim that rules of New York City's Office of Trials and Hearings violate the First Amendment.  Plaintiff, which represents clients who have been issued administrative summonses by New York City agencies, contended that rules which limit the ability to reschedule hearings that conflict with Jewish and Muslim holidays violate its rights and the rights of its clients.  The court held:

Petitioner has failed to state a claim for violation of its First Amendment right of free exercise of its religion. OATH's rules concerning the rescheduling and adjournment of hearings are neutral in both object and application and therefore "the First Amendment has not been offended."

Pope Issues New Law On Reporting of Sex Abuse of Minors and Vulnerable Adults In Vatican

On March 26, Pope Francis promulgated Law N. CCXCVII on the Protection of Minors and of Vulnerable Persons of Vatican City State.  It requires any public official of the Vatican City State who has information or a well-founded belief that a minor or other vulnerable person is the victim of abuse is required to report it to authorities, except for information obtained in the sacrament of confession. According to the Catholic Register:

While few minors are resident in Vatican City State, there are minors in the Sistine Chapel Choir, and there is a pediatric hospital and a minor seminary under Vatican City State jurisdiction....

The new law will now cover all forms of physical and emotional abuse -- not just sexual violence through coercion — as well as serious forms of mistreatment, neglect, abandonment and exploitation against minors, who are below the age of 18, and vulnerable adults.

As reported by AP:

According to the new Vatican definition, a vulnerable person is anyone who is sick or suffering from a physical or psychiatric deficiency, isn’t able to exercise personal freedom and has a limited capacity to understand or resist the crime.

The issue of whether “vulnerable people” can include seminarians, religious sisters or other adults who are emotionally dependent on clergy has come to the fore in the wake of the scandal over ex-Cardinal Theodore McCarrick, a once high-ranking American cleric who molested seminarians, and revelations of priests and bishops around the world sexually preying on nuns.

The new law covers all personnel who live in or work for the Vatican and any abuse that occurs in the Vatican, the 44-hectare (110-acre) city state in the center of Rome and its other territories, as well as the Holy See’s vast diplomatic corps.

The Vatican’s own ambassadors have figured in some of the most scandalous cases of sex abuse in recent years...

SNAP, an organization supporting clergy abuse victims, issued a press release generally reviewing the Vatican's action favorably, but complaining that the law requires reporting to internal Vatican officials rather than to independent secular law enforcement officials.

Brunei Further Implements Its Sharia Penal Law-- The Details

There has been extensive coverage in the press in recent days regarding the Sultan of Brunei's further implementation of Sharia law in his southeast Asian nation.  Press coverage has focused on implementation of the provisions on stoning for the offences of adultery and homosexual sex. (CNN, ABC). Here is a closer look at the legal steps the nation has taken.

In 2013, Brunei adopted Syariah Penal Code Order, 2013 (full text). The law was to be implemented in stages, beginning with crimes involving only jail terms. Last December, the Ministry of Religious Affairs published a Notice (full text) of the remaining provisions that will go into effect April 3.  These are provisions in Chapter I of the law imposing Sharia penalties, among other things, for theft offenses (Sariqah, Hirabah), adultery (Zina), rape (Zina Bil-Jabar), sodomy (Liwat), apostasy (Irtidad), and drinking intoxicating liquors. Section 94 on pregnancy out of wedlock was excluded from the provisions taking effect.

A new Criminal Procedure Code (full text) was also ordered effective as of January 1, 2019.

Pastor's Convictions For Corrupting Minors Dismissed

Christian Chronicle reports on a March 18, 2019 decision by a Pennsylvania trial court judge vacating a long-time Church of Christ youth minister's convictions for corruption of minors and indecent exposure.  Clyde Brothers, Jr. had been sentenced to five years in prison for showing pornographic movies and performing lewd acts in front of church boys. Granting a post-trial motion, however, the court held that the state's statute of limitations barred the prosecution.

Supreme Court Says Inmate Is Entitled To His Spiritual Adviser In Execution Chamber

Late last night, the U.S. Supreme Court, by a 7-2 vote, ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution, scheduled for last night, was carried out. A Texas federal district court had upheld the decision of prison authorities to allow only the prison's Christian chaplain to be in the room with Murphy. His Buddhist clergyman could be in the adjacent viewing room. (See prior posting.) In Murphy v. Collier, (Sup. Ct., March 28, 2019), the U.S. Supreme Court held:

The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.

Justices Thomas and Gorsuch voted against granting a stay of execution. Justice Kavanaugh filed a concurring opinion, saying in part:

For this kind of claim, there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.... [T]here are operational and security issues associated with an execution by lethal injection. Things can go wrong and sometimes do go wrong in executions, as they can go wrong and sometimes do go wrong in medical procedures. States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.

....What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.

The case moved through the Supreme Court rapidly. The district court's decision was handed down on March 26. A petition for a stay was filed and on March 28 Becket filed a 22-page amicus brief with the Supreme Court.  According to Becket, the Supreme Court's decision was handed down two-and-one-half hours after the scheduled start of the execution.

Court Enjoins Obama-Era Contraceptive Mandate Accommodation

In Dobson v. Azar, (D CO, March 26, 2019), a Colorado federal district court reopened proceedings in a case challenging Obama-era Affordable Care Act accommodation for religious non-profits and granted a permanent injunction against their enforcement to the extent they require insurance coverage for drugs or procedures "that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother." The suit by James Dobson and Family Talk was one of a large number of challenges to regulations that required religious non-profits that wished to opt out of the mandate for contraceptive coverage to complete an exemption form that had the effect of triggering coverage directly from the organization's insurer. The Trump administration promulgated Interim Final Rules creating a broader exemption. However multiple lawsuits have been filed challenging this broader exemption and two courts have issued preliminary injunctions against their enforcement.  The court concluded:

Given the uncertainty presented by the legal challenges to the IFR, I find and conclude that a permanent injunction is proper.

Colorado Springs Gazette reports on the decision.

Iowa Governor Signs Campus Free Speech Bill

Yesterday, Iowa Governor Kim Reynolds signed SF 274 (full text), a bill that is designed to protect free speech at public universities. The new law requires the state Board of Regents and the board of each community college to adopt an extensive policy to protect speech and expression. Among other things, it bars public universities from limiting non-commercial speakers to a free-speech zone.  As reported by Iowa State Daily, the section of the new law that has raised the most controversy is Section 3(3) which prohibits denying benefits to a student organization because it requires that its leaders agree to and support the organization's beliefs as interpreted by the organization.  This presumably allows religious organizations that oppose same-sex relations to bar members of the LGBTQ community from leadership positions.

9th Circuit: Sikh Asylum Applicant Did Not Show Past Persecution

To qualify for asylum as a refugee, an individual must show either past persecution or a well-founded fear of future persecution. (8 CFR 1208.13). In Singh v. Barr, (9th Cir., March 25, 2019), the U.S. 9th Circuit Court of Appeals held in a 2-1 decision that a citizen of India had shown neither. Amaneep Singh, a Sikh, approached members of the Dera Sacha Sauda at one of their recruitment meetings to stop them from criticizing Sikhism. He was chased out of the event. Two months later Dera Sacha Sauda members encountered Singh alone and beat him.  When Singh approached police, they demanded a 25,000 rupee bribe to help him. the majority concluded:

Because Singh’s evidence showed only that the police demanded a bribe on one occasion, the evidence does not compel a finding that the government was unable or unwilling to control the people who attacked him, and therefore does not compel a finding of past persecution....

Singh’s attackers were part of Dera Sacha Sauda, a small religious minority active in only some regions of India. There is no reason to think that Singh is at future risk from a group with such limited influence because he is a Sikh.

Judge Watford dissented saying in part:

Members of another religious faith told Singh to abandon his religion and join their own. When he refused to disavow his faith, they beat him until he was unconscious, hospitalizing him for two weeks. When he went to the police for help, they refused to help him unless he paid a bribe, which was more than he could afford to pay. The majority errs by concluding that these facts do not establish past persecution.

San Francisco Chronicle reports on the decision.

Christian School Challenges Zoning Requirement

A suit was filed this week in a Florida federal district court challenging the denial of a zoning exception that would allow continued operation of a small Christian school that serves primarily children with learning disabilities and children from underprivileged homes. The complaint (full text) in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida, (MD FL, filed 3/25/2019), alleges violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. ADF issued a press release announcing the filing of the lawsuit.

N.C. 20-Week Abortion Ban Partially Enjoined

In Bryant v. Woodall, (MD NC, March 25, 2019), a North Carolina federal district court enjoined enforcement of North Carolina's ban on abortions during or after the 20th week of pregnancy to the extent that the ban covers pre-viability abortions. Washington Post reports on the decision.

Another Death Row Inmate Denied Chaplain of His Choice During Execution

Last month in a widely publicized decision the U.S. Supreme Court  vacated the the stay of execution that had been granted the day before by the U.S. 11th Circuit Court of Appeals to a Muslim inmate who wanted to have his Imam instead of the Christian prison chaplain with him in the execution chamber. (See prior posting). Yesterday a Texas federal district court dealt with a similar request from a Buddhist inmate, and similarly denied a stay of execution because the inmate had waited too long to assert his objections. In this case the prisoner had the option of having a Christian prison chaplain or no chaplain present.  In Murphy v. Collier, (SD, TX, March 26, 2019), the court said in part:

Murphy gave TDCJ little time to decide whether to vary its policy. And Murphy gave TDCJ little time to litigate any legal challenge that would follow. Once informed that TDCJ would not deviate from its policy, Murphy waited over two weeks to file litigation in state court. He filed this action only two days before his execution.

"Given the State's significant interest in enforcing its criminal judgments . . . there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay."

Murphy's execution is set for tomorrow.

Rockland County Declares State of Emergency In Measles Outbreak

Rockland County, New York, which is battling a measles outbreak, has issued a 30-day county-wide Sate of Emergency Declaration (full text) banning any person under 18 who has not been vaccinated for measles from all places of public assembly. The Declaration defines the scope of the ban:

A place of public assembly shall be a place where more than 10 persons are intended to congregate for purposes such as civic, governmental, social, or religious functions, or for recreation or shopping, or for food or drink consumption, or awaiting transportation, or for daycare or educational purposes, or for medical treatment. A place of public assembly shall also include public transportation vehicles, including but not limited to, publicly or privately owned buses or trains, but does not include taxi or livery vehicles.

The county previously excluded all unvaccinated minors for schools.  (See prior posting.) Yesterday Rockland County issued a press release announcing the action. Gizmodo reporting on the ban says in part:

In the case of the Rockland outbreak, it’s thought the original carriers caught measles while visiting Israel. According to health officials, more than 80 percent of local cases have occurred among the unvaccinated. These cases have been concentrated among segments of the Orthodox Jewish community.

Recent Prisoner Free Exercise Cases

In Smith v. Drawbridge, (10th Cir., March 18, 2019), the 10th Circuit affirmed the dismissal of an Orthodox Jewish inmate's complaint that he received only a cold sack meal rather than a hot meal at the conclusion of the Fast of Tammuz.

In Newsome v. Fairley, 2019 U.S. Dist. LEXIS 39138 (SD MS, March 12, 2019), a Mississippi federal district court adopted in part a magistrate's recommendations (2019 U.S. Dist. LEXIS 40431, Jan. 28, 2019) and allowed an inmate who professed the Natsarim Faith to move ahead against two defendants on his complaint that he was denied a yeast free diet during Passover, and was denied immersion baptism and religious counseling.

In Wilson v. Virginia Department of Corrections, 2019 U.S. Dist. LEXIS 41528 (ED VA, March 13, 2019), a Virginia federal district court dismissed a hearing impaired inmate's contention that his religious exercise was substantially burdened when officials refused to permit him to purchase a larger TV set so he can view religious programming with large closed captioning. His equal protection claim was not dismissed.

In Howard v. Polley, 2019 U.S. Dist. LEXIS 41696 (D NV, March 13, 2019), a Nevada federal district court dismissed an inmate's complaint about different treatment of Muslim prisoners growing out of a shortage of imams to conduct Jumu'ah services in multiple housing modules.

In Arboleda v. O'Banion, 2019 U.S. Dist. LEXIS 41907 (ED CA, March 14, 2019), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that on one occasion he was denied access to a Jehovah's Witness religious service.

In Abreu v. Farley, 2019 U.S. Dist. LEXIS 42801 (WD NY, March 15, 2019), a New York federal district court dismissed the portion of an inmate's 531 paragraph complaint claiming that he is Jewish and is entitled to be served "Kosher loaves." The court concluded that plaintiff's beliefs were not sincerely held.

In Brandon v. Royce, 2019 U.S. Dist. LEXIS 42807 (SD NY, March 15, 2019), a New York federal district court rejected an inmate's claim that his free exercise rights were infringed when he did not receive a purportedly promised feed-in meal in exchange for his voluntarily not attending an oversubscribed Eid Celebration.

In Carawan v. Solomon, 2019 U.S. Dist. LEXIS 43609 (ED NC, March 18, 2019), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that his requests were denied for congregational prayer beyond just Friday Jumu'ah services. The court dismissed his complaint that the prison had no Zakat fund that would eliminate the administrative fee for him to done funds to charity.

Churches Withdraw Suit Against Austin's Non-Discrimination Ordinance.

Last week, plaintiffs in U.S Pastor Council v. City of Austin, (WD TX, March 19, 2019) filed a Notice of Dismissal of their lawsuit challenging Austin's anti-discrimination ordinance protecting against employment discrimination on the basis of sexual orientation or gender identity. Plaintiffs argued that the ordinance infringes the rights of churches that will not hire women as senior pastors, or practicing homosexuals or transgendered individuals for any church position (See prior posting.) As reported by the Austin Statesman, the city had argued urged dismissal of the suit on standing and other grounds. (Motion to dismiss.)

Consent Decree Defines Protected Anti-Abortion Activity

A consent decree (full text) was issued last week in Zastrow v. City of Toledo, (ND OH, March 19, 2019), enjoining the city of Toledo, Ohio from enforcing various City Code provisions against anti-abortion demonstrators engaged in non-obstructive, expressive activity on public sidewalks and medians outside a Toledo abortion clinic. The decree included a detailed description of the kind of expressive activities that are protected:

3. The “non-obstructive, expressive activity of pro-life demonstrators” ... includes activity protected by the First Amendment, including, but not limited to unamplified prayer, preaching, worship, singing worship songs, playing worship songs with instruments such as the acoustic guitar and violin, holding pro-life signs, distributing literature, and engaging passersby with their pro-life message.

4. The parties agree that the term “non-obstructive, expressive activity” means activity protected by the First Amendment that does not physically prevent a pedestrian from using a public sidewalk or other public way or that does not physically impede a vehicle from traveling on a public road or street. This does not mean that the person or persons engaging in the First Amendment activity must be moving all the time. Additionally, the First Amendment activity is not “obstructive” because a pedestrian might have to walk around the person engaging in the expressive activity. It is only “obstructive” when the person engaging in the First Amendment activity physically prevents a pedestrian from using the public sidewalk or prevents a vehicle from entering onto the premises....

Christian Post reports on the consent decree.

In Settlement Agreement, Michigan Will Enforce LGBTQ Non-Discrimination Provisions Against Religious Adoption Agencies

As previously reported, last September a Michigan federal district court in Dumont v. Lyon held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services (MDHHS) for permitting child placing agencies receiving state funds to use religious criteria to deny them services. Last Friday, Michigan Attorney General Dana Nessel announced that the state has entered into a settlement agreement (full text) (summary) that calls for the state to enforce non-discrimination provisions in agreements with foster care and adoption agencies.  The settlement applies to any agency contracting with MDHHS that discriminates against same-sex couples or LGBTQ individuals otherwise qualified as foster care or adoptive parents for any child accepted by the agency under a contract with MDHHS. These child placement agencies may not turn away or refer to another agency, or refuse to place a child with, an otherwise potentially qualified LGBTQ individual or same-sex couple. However a child placement agency may refuse for any reason to accept a referral from MDHHS of any particular child.

Recent Articles of Interest

From SSRN:

• Nathan B. Oman, John Calvin’s Quarrel with Civil Recourse Theory, (Christianity and Private Law, Robert Cochran & Michael Moreland, eds. (Cambridge, UP Forthcoming)).
• Anna Su, Establishment, (Law, Religion, USA (Joshua Dubler & Isaac Weiner eds., NYU Press, 2019)).
• Kent Greenfield, Brief for Professor Kent Greenfield As Amicus Curiae in Support of Respondents, State of Washington vs. Arlene's Flowers and Ingersoll vs. Arlene's Flowers, (Boston College Law School Legal Studies Research Paper No. 500 (March 2019)).
• Marc O. DeGirolami, The Traditions of American Constitutional Law, (Notre Dame Law Review, Forthcoming).
• Bret Matera, Divining a Definition: ‘Substantial Burden’ in the Penal Context Under a Post-Holt RLUIPA, (Columbia Law Review, Forthcoming).
• Stijin Smet, Conscientious Objection through the Contrasting Lenses of Tolerance and Respect, (Oxford Journal of Law and Religion (2019)).
• Roger Colinvaux, Fixing Philanthropy: A Vision for Charitable Giving and Reform, (Tax Notes, Vol. 162, No. 9, p. 1007, 2019).

From SSRN (non-US Law):

• Asim Jusic, An (Un)Exceptional Case: Strasbourg’s Court Reserved Nod to Religious Symbols in the Courtroom, (Forthcoming in Oxford Journal of Law and Religion (2019)).
• Radley Henrico, Proselytising the Regulation of Religious Bodies in South Africa: Suppressing Religious Freedom?, (Potchefstroom Electronic Law Journal, Vol. 22, 2019).
• Paul Johnson, The 'Gay Cake' Case - Lee (Respondent) v Ashers Baking Company Ltd and Others (Appellants) (Northern Ireland) [2018] UKSC 49, (February 27, 2019).
• Abu Umar Faruq Ahmad, Aishath Muneeza, Mohammad Omar Farooq & Rashedul Hasan, Post-Default Sukuk Restructuring: An Appraisal of Shari’ah Issues , (in Hassan, M. K. and Rashid, M. (eds.). Management of Islamic Finance Principle, Practice, and Performance, International Finance Review, Emerald Publishing, Volume 19, 113, Forthcoming).
• Puranjay K. Vedi, Working Paper: Tracing Burqa in Byzantine Christianity, (October 1, 2018).

From elsewhere:

• USCIRF, Legislation Fact Sheet, Anti-Extremism Laws, (March 2019).

Firefighter Not Entitled To Religious Exemption From Grooming Policy

In Smith v. City of Atlantic City, (D NJ, March 22, 2019), a New Jersey federal district court upheld the refusal by the Atlantic City Fire Department to grant a long-time employee a religious exemption from the Department's grooming policy.  Plaintiff is an African American male and a Christian who has recently decided to grow a 3-inch beard as an expression of his religious faith. Rejecting plaintiff's application for a temporary restraining order, the court concluded that he was unlikely to succeed on the merits of his free exercise, equal protection or Title VII claim.

Break-Away Moves By Methodist Congregation Are Invalid

In Laumalie Ma'oni'oni Free Wesleyan Church of Tonga v. Ma'afu, (UT App, March 21, 2019), a Utah state appellate court held that a mail-in vote to change the articles of incorporation of the Tongan United Methodist Church (TUMC) was invalid.  The amendments purported to break the congregation away from the parent United Methodist Church (UMC). The mail vote did not comply with the governance requirement of UMC's Book of Discipline which was incorporated by reference into TUMC's articles of incorporation.  Rejecting constitutional challenges, the court said in part:

[T]he district court’s interpretation and application of the Discipline was constitutionally sound. In resolving the dispute, the court looked to the corporation’s governing documents, “without inquiring into matters of church doctrine.” The Discipline requires any meeting of the Charge Conference or the Church Conference to be presided over and called by the district superintendent. The Discipline does not authorize mail-in voting....

Free Wesleyan argues that these matters relate to “faith and doctrine.” We disagree. Whether a corporate meeting must be called and presided over by a certain person and whether voting members must be present at a meeting are not matters of religious doctrine or faith.

Court Dismisses Suit Challenging Church's Internal Investigation

In Williams v. Kingdom Hall of Jehovah's Witnesses, (UT App, March 21, 2019), a Utah state appellate court upheld the dismissal of an intentional infliction of emotional distress claim brought by a member of the Jehovah's Witnesses against church bodies and individuals.  At issue was the manner in which a judicial committee of the Church conducted an investigation into plaintiff Ria Williams sexual conduct.  The court said in part:

In the summer of 2007, Williams met another Jehovah’s Witnesses congregant (“Church Member”). Williams and Church Member began seeing each other socially, but the relationship quickly changed and throughout the rest of the year Church Member physically and sexually assaulted Williams, who was a minor....

After questioning Williams about her sexual conduct, the Elders played an audio recording of Church Member raping Williams. Church Member recorded this incident and gave it to the Elders during their investigation of Williams. The recording was “several hours” in length. Williams cried and protested as the Elders replayed the recording. The Elders played the recording for “four to five hours” stopping and starting it to ask Williams whether she consented to the sexual acts. During the meeting Williams was “crying and physically quivering.” Williams conceded she was able to leave but risked being disfellowshipped if she did....

Allowing Williams’s claims in this case to be litigated would require the district court to unconstitutionally inject itself into substantive ecclesiastical matters. Williams argues she is not challenging the Church’s ability to determine what constitutes “sinful behavior”.... But Williams asks the factfinder to assess the manner in which the Church conducted a religious judicial committee, which requires it to assess religiously prescribed conduct....

We conclude Williams’s claim for IIED requires an inquiry into the appropriateness of the Church’s conduct in applying a religious practice and therefore violates the Establishment Clause of the First Amendment.

President Trump Issues Executive Order On Campus Free Speech

President Trump yesterday signed Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. (Full text). In lengthy remarks (full text) delivered by the President at the signing ceremony for the Executive Order, Trump emphasized the protection of religious speech.  He  introduced three students at the ceremony.  One, the president of Students for Life at Miami University, was required to post "trigger warnings" about a display of wooden crosses representing lives of the unborn. Another student from the University of Nebraska reported she was cursed at by staff and an instructor while standing at a table representing a conservative campus group. A third student from Northeast Wisconsin Technical College was told she was restricted to the campus free speech zone to hand out Valentine cards with messages such as "You are special" and "Jesus loves you."

President Trump said in part:

Today, we are delivering a clear message to the professors and power structures trying to suppress dissent and keep young Americans — and all Americans, not just young Americans like Ellen and Kaitlyn and Polly — from challenging rigid, far-left ideology.  People who are confident in their beliefs do not censor others — we don’t want to censor others — they welcome free, fair and open debate.  And that’s what we’re demanding.

Under the policy I am announcing today, federal agencies will use their authority under various grant-making programs to ensure that public universities protect, cherish — protect the First Amendment and First Amendment rights of their students, or risk losing billions and billions of dollars of federal taxpayer dollars.

The Executive Order itself, however, is vaguer, saying:

It is the policy of the Federal Government to: (a)  encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions;....

To advance the policy described in subsection 2(a) of this order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

Much of the Executive Order is devoted to other issues-- primarily transparency regarding the cost of college and student borrowing.

Non-Liturgical Protestant Navy Chaplains Refile In Long-Running Discrimination Litigation

Last year, a D.C. federal district court dismissed a long-running lawsuit brought by  non-liturgical Protestant Navy chaplains alleging discrimination against them by the Navy. (See prior posting.)  However the court severed certain claims with leave to file them in other jurisdictions.  Earlier this month those severed claims were included in a complaint filed in a Virginia federal district court.  The complaint (full text) in Lancaster v. Secretary of the Navy, (ED VA, filed 3/1/2019), summarized the allegations as follows:

This case addresses 27 Non-liturgical Navy Chaplains plaintiffs’ longstanding claims of retaliation and low fitness reports...; constructive discharge because of unlawful FOS [failures of selection]; and interference with their ministry, speaking, preaching and worship services based on denominational prejudice.

This retaliation resulted in plaintiffs’ FOS and either separation for FOS or constructive discharges. Senior Navy chaplains are the perpetrators and sources of these claims, primarily Roman Catholic and/or Liturgical Protestants, in positions of authority, influence and supervision representing and acting under the authority of the Navy and its CHC. The actions represent a pattern and practice of illegal retaliation and discrimination based on denominational hostility and prejudice.

WAVY News reports on the lawsuit.

Suit Charging Campus Anti-Semitism Is Settled

The Lawfare Project announced on Tuesday that a settlement has been reached in Volk v. Board of Trustees, a state court lawsuit by two Jewish students at San Francisco State University alleging anti-Semitic discrimination on campus. The suit in particular focused on the exclusion of Hillel from a campus Know Your Rights fair.  The case was scheduled to go to trial later this month.  Under the settlement, the University will issue a public statement saying that "it understands that, for many Jews, Zionism is an important part of their identity." It will hire a Coordinator of Jewish Student Life, and enhance anti-discrimination enforcement. It will allocate an additional $200,000 to promote viewpoint diversity and will allocate space on campus for a mural depicting such diversity. A similar federal court lawsuit was dismissed last October. (See prior posting.) Jewish News of Northern California reported on the settlement.

Two Church Leaders Plead Guilty To Tax Fraud Conspiracy Involving Diversion of Church Funds

On Tuesday, the U.S. Attorney's Office for the District of New Jersey announced that two church leaders have plead guilty to a charge of conspiracy to commit tax fraud:

The leader and the main treasurer of the Israelite Church of God in Jesus Christ admitted their respective roles today in a scheme in which both men caused the church to pay millions of dollars in personal expenses for the leader that the leader then omitted from his personal tax returns....

Grant and Warrington used their leadership positions in the church to divert to Grant millions of dollars belonging to the church and its members for Grant’s personal use and benefit. The defendants used a variety of methods to carry out the scheme. For example, Grant and Warrington created a purported entertainment company that portrayed Grant as an industry mogul whose wealth was derived from his success in the industry, thereby concealing from church members that his lifestyle was supported entirely by the church and donations from its members. 

Discrimination Suit By Jewish Woman Denied Admission To Social Work Program Moves Ahead

In Weiss v. City University of New York, (SD NY, March 18, 2019), a New York federal district court allowed a Jewish woman to move ahead with several racial and religious discrimination claims against City University of New York and its trustees, as well as against several administrators, growing out of the denial of plaintiff's application for admission to the school's Master of Social Work program.  Faigy Weiss was raised in the Hasidic Satmar community in New York, with Yiddish as her first language.  She alleges that the Dean for Diversity and Compliance told her that the social work school "conducted the group admissions interviews to weed out conservatives, because Trumps and Cruzes can’t be social workers" and that "Jews from religious backgrounds are too conservative to be social workers." The court held that these allegations sufficiently state an equal protection claim for discrimination based on race and religion, a claim under Title VI, and an Establishment Clause claim.

South Dakota Requires "In God We Trust" In Every Public School

Yesterday South Dakota Governor Kristi Noem signed Senate Bill 55 (full text) into law.  The new law requires every public school in the state to display the national motto "In God We Trust" in a prominent place. The law also provides for the state attorney general to assume the defense of any lawsuit that is filed challenging the law. Friendly Atheist reports on the new law.

ACA Mandate Does Not Violate RFRA

In Cash v. United States, (MD PA, March 20, 2019), a Pennsylvania federal district court rejected an attack on the Affordable Care Act's tax penalties for failing to purchase health insurance. Plaintiff taxpayers had religious objections to purchasing medical insurance and contended that the penalties substantially burdened their religious exercise under RFRA (see prior posting). The court disagreed, saying in part:

The Magistrate Judge ... found that the burden imposed on Plaintiffs was de minimis.... RFRA prohibits substantial burdens on the free exercise of religion absent a compelling governmental interest achieved by the least restrictive means.... Describing the thousands of dollars Plaintiffs have paid in ACA penalties since 2014 as de minimis may not be fair. However, that does not render the penalties substantially burdensome, either. Plaintiffs offer no indication that they are forced to decide between their religious beliefs and a benefit generally available. Moreover, Plaintiffs do not allege or otherwise show that the ACA penalty places a substantial burden on them to modify their religious conduct.... [T]he cost of the penalty would not exceed the cost to obtain the required level of insurance. Plaintiffs do not indicate how this applies substantial pressure to forego their religious beliefs. Staying true to their religion and avoiding health insurance would cost no more, and potentially cost less, than purchasing insurance at the expense of their religious beliefs.

Ecclesiastical Abstention Doctrine Governs Property Dispute In Hierarchical Church

In Holy Trinity Romanian Orthodox Monastery v. Romanian Orthodox Episcopate of America, (MI App., March 19, 2019), a Michigan state appellate court held that the trial court should have applied the ecclesiastical abstention doctrine to a church property dispute instead of the "neutral principles of law" approach.  Bishop Ioan Duvlea served as the abbot of the Holy Ascension Romanian Orthodox Christian Monastery until he was demoted and defrocked after a church trial.  A faction supporting him conveyed property belonging to the monastery to Holy Trinity, a new entity they formed.  The court, ruling in favor of the parent church body said in part:

This case requires determination whether Holy Trinity, a monastic corporate entity formed by a schismatic faction that left the ROEA, could claim ownership of the property that the faction conveyed from Holy Ascension before dissolving it. The ROEA contends that Holy Ascension owned but held in trust for the ROEA, a hierarchical church, the disputed property pursuant to church documents governing the ecclesiastical structure, polity, rules, discipline, and usage of the church with which Holy Ascension affiliated itself and to which it submitted....

In this case, the trial court failed to consider whether the ROEA constituted a hierarchical religious organization and did not examine the nature of the relationship of Holy Ascension with the ROEA and the Orthodox Church in America. The trial court failed to consider whether the actual adjudication of the legal claims in this case required the resolution of ecclesiastical questions, including the relationships between entities within the allegedly hierarchical religious denomination. Instead, the trial court stated without explanation that it found the dispute in this case merely secular requiring it to apply the neutral-principles-of-law approach. In so doing, the trial court erred.

The record reflects that the trial court substituted its interpretation of canonical texts and ignored the decisions of the ROEA relating to government of the religious polity. The trial court disregarded the evidence presented by the ROEA that required it to abstain and defer to the ROEA’s resolution of the property dispute. 

Repeal of Ban On Use of Civic Center For Worship Services Moots Injunctive Relief, But Not Damages

In Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, March 18, 2019), a South Carolina federal district court held that a church's request for injunctive relief was moot. The church initially rented space in the town's Civic Center for its worship services.  Subsequently the town changed its rules to bar renting of space for use for religious services. The church sued, and the town rescinded the ban. The church failed to show that the town might reinstate the ban.  The court said in part:

Although the resolution moots Redeemer Fellowship’s request for injunctive relief, it does not moot the church’s request for damages or for declaratory relief. Redeemer Fellowship’s prayer for relief asks that the court declare that the Town engaged in content-based discrimination and violated the church’s rights under the First and Fourteenth Amendments..... Redeemer Fellowship’s damages claim—the success of which depends on the court declaring that its constitutional rights were violated by the Town’s ban on religious worship services—survives this order. The court leaves it to the parties to determine whether or not Redeemer Fellowship did in fact suffer any damages by the Town’s prohibition of the church’s use of the Civic Center for their worship services from May 2018, when the church’s application for use of the Center was denied, until December 2018, when the Town rescinded the ban. 

Connecticut Diocese Settles Abuse Claims For $3.5M

The Catholic Diocese of Bridgeport, Connecticut announced yesterday that it has settled lawsuits filed last year by five victims of clerical sexual abuse.  The Maronite Order was involved in one of the cases.  The abuse took place almost 30 years ago.  The cases were settled through mediation for a total of $3.5 million. Most of the cost was covered by the Diocese's insurance. CT Post reports on the settlements.

Recent Prisoner Free Exercise Cases

In Schwartz v. Korn, 2019 U.S. Dist. LEXIS 38486 (ED TN, March 11, 2019), a Tennessee federal district court allowed an inmate to move ahead with his complaint that his food is not being prepared according to kosher requirements and he does not receive the same number of meals as other inmates.

In Khan v. Barela, 2019 U.S. Dist. LEXIS 38496 (D NM, March 11, 2019), a New Mexico federal district court dismissed a Muslim inmate's complaint that he was not provided  a clock, prayer schedule, or Muslim calendar, was deterred from participating in Ramadan and was not allowed to leave the pod on three occasions when Christian sermons were being delivered.

In Hardeman v. Trammell, 2019 U.S. Dist. LEXIS 39070 (ED OK, March 12, 2019), an Oklahoma federal district court dismissed an inmate's claim that limits on the amount of property that an inmate can possess led to confiscation of some of his religious books.

In Orum v. Michigan Department of Corrections, 2019 U.S. Dist. LEXIS 39278 (WD MI, March 12, 2019), a Michigan federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 222616, Dec. 11, 2018), and in a case in which a Jewish inmate complained that he was denied a religious diet and was retaliated against for filing a grievance about it, the court dismissed a number of plaintiff's claims but permitted him to move ahead with some of his RLUIPA and retaliation claims.

In Lombardo v. Freebern, 2019 U.S. Dist. LEXIS 39355 (SD NY, March 11, 2019), a New York federal district court dismissed a suit filed by a Jewish patient confined at a psychiatric facility. The suit claimed he was deprived of grape juice; denied access to his religious books and items; his conversation with Rabbi Schwab was interrupted; the menorah was broken; he was unable to attend the Passover Seder and the Eid ul-Fitr feast.

In Gates v. LeGrand, 2019 U.S. Dist. LEXIS 39766 (D NV, March 12, 2019), a Nevada federal district court accepted in part a magistrate's recommendation and allowed a Wiccan inmate to move ahead on his equal protection, but not his free exercise or due process, claim growing out of the denial of incense that he had been permitted to order.

Suit Seeks Change In Allegedly Anti-Semitic High School Curriculum

A suit seeking a writ of mandamus was filed last week in a Massachusetts state trial court against the city of Newton schools seeking a change in the high schools' history curriculum. The 60-page complaint (with over 400 pages of attachments and exhibits) (full text) in Dechter v. Newton School Committee, (MA Super. Ct., filed 3/11/2019) alleges in part:

Anti-Semitism is a deadly hatred. Defendants either disagree with this statement or share in this hatred because, for years, they have stubbornly refused to remove anti-Semitic and anti-Israel materials from the history lessons that they teach in the high schools of the City of  Newton. Despite significant community concerns, scholarly findings of anti-Jewish bias, and formal citizen requests for remedial action, Defendants have categorically and repeatedly refused to remedy the teaching of false and hateful stereotypes about Israel, Israelis, and the Jewish people. These refusals are not simply indecent and vile: they are also illegal under Massachusetts education and civil rights laws.

Newton Wicked Local reports on the lawsuit. (See prior related posting.)

ERISA Pre-Empts Jesuit Order's Claim For Proceeds of Priest's Retirement Account

In Wisconsin Province of the Society of Jesus v. Cassem, (D CT, March 18, 2019), a Connecticut federal district court dismissed breach of contract claims brought by a Jesuit Province against relatives of a deceased Jesuit priest in a suit over the proceeds of the priest's retirement accounts.  Four years before his death, the priest changed the beneficiaries of the accounts from his Jesuit Order to two of his relatives. The court describes the claim at issue:

Plaintiff alleges that the change in beneficiary designation was improper because Fr. Cassem’s vows prevented him from legally acquiring personal property and, therefore, he never owned the Accounts. Plaintiff alleges that “Fr. Cassem’s final vows constitute an enforceable contract among and between the Province and Fr. Cassem, through which Fr. Cassem fully and finally renounced and assigned any and all property then owned or later acquired to the Province.”... The Province argues that because Fr. Cassem was not entitled to retain or direct property for the benefit of any party other than the Province, the original designation of the Province as the beneficiary of the Accounts remains valid and enforceable. 

The court held, however, that plaintiff's contract claim is pre-empted by ERISA, saying in part:

The statute is intended to protect beneficiaries relying on long-accumulated benefits from having to fight challenges to those benefits under disparate standards.

The court rejected the Order's argument that ERISA pre-emption violates its rights under the Religious Freedom Restoration Act, saying in part:

whether or not the statute can apply to cases between private parties, RFRA certainly cannot be used as a procedural mechanism to legitimize a cause of action that contravenes federal law for a plaintiff that is contesting dismissal.... In any event, even if RFRA is applicable in the present case, it does not preclude ERISA preemption because ERISA does not impose a “substantial burden” on Plaintiff’s free exercise of religion.

Suit Challenging San Diego Schools' Anti-Islamophobia Program Is Settled

Freedom of Conscience Defense Fund announced Monday that it has finalized a settlement agreement (full text) with the San Diego Unified School District, resolving a lawsuit that it filed in 2017 challenging an Anti-Islamophobia program instituted by the school district to combat bullying and harassment of Muslim students.  (See prior posting.)  According to FCDF:

Under the terms of the settlement agreement, the District distributed a policy memo to area superintendents and principals regarding the First Amendment’s "limits on the conduct of public school officials as it relates to religious activity."

West Virginia Sues Catholic Diocese For Past Abuse of Minors

As reported by The Hill, West Virginia's Attorney General announced yesterday that the state had filed a civil suit against the Catholic Diocese of Wheeling-Charleston.  The case grew out of Pennsylvania's Statewide Investigating Grand Jury Report on sexual abuse of minors. (See prior posting.)  Some of the priests identified in that Report had at one time been employed by the West Virginia diocese. The complaint (full text) in State of West Virginia v. Diocese of Wheeling Charleston, (WV Cir. Ct., filed 3/19/2019), alleges that the Diocese knowingly employed admitted and credibly accused sexual abusers and hired priests and lay employees without adequate background checks. The suit was brought under West Virginia's Consumer Credit and Protection Act and contends that the Diocese falsely advertised that it provided a safe learning environment and intentionally concealed the danger in its educational and recreational services.

Bavarian Court Upholds Ban On Judges and Prosecutors Wearing Hijab

In Germany, Bavaria's constitutional court yesterday upheld a Bavarian law banning judges and prosecutors from wearing religious symbols in the courtroom. The court said that officials administering justice have a special obligation to be neutral in religion and ideology.  The ban was challenged a Muslim group that objected to the ban's application to the wearing of Islamic head scarfs. DW reports:

The judge voiced the opinion that the ban, which also forbids officials to wear religious symbols such as crosses or a kippa — or yarmulke — during court proceedings, did not go against laws on religious freedom or equality....

The Islamic group had argued that the ban violated both laws, as the Christian symbol of the cross hangs in Bavarian courtrooms.

This argument was not accepted by the court, which maintained that the presence of crosses was a different matter, as it was determined by the court administration and cast no doubt on the neutrality of individual judges or lawyers.

The court also said the ban did not discriminate against women, as other items of clothing with religious significance that were worn by men were also forbidden.

South African Court Invalidates Dutch Reformed Church's LGBT Policy

In South Africa, a 3-judge panel of the North Gauteng High Court set aside as unlawful and invalid a decision on same-sex relationships made by the General Synod of the Dutch Reformed Church during the Synod's November 2016 meeting. That decision reversed a 2015 policy that recognized same-sex civil unions and allowed the ordination of gays and lesbians.  In Gaum v. Van Rensburg, S.A. High Ct., March 8, 2019), the court said in part:

The Church denied that the 2016 decision prevents the participation of the LGBTQIA+ community in the church community, or that it impedes their private lives, or that the decision violates their constitutional rights.... On behalf of the Church it was submitted that the 2016 decision did not restrict Gaum’s right to freedom of association; Gaum is free to join another Church that interprets the Bible in the way that Gaum does....

The differentiation caused by the 2016 decision does inherently diminish the dignity of Gaum because same-sex relationships are tainted as being unworthy of mainstream church ceremonies and persons in a same-sex relationship cannot be a Minister in the Church....

There is an argument to be made that a Court cannot prescribe who must be appointed as a Minister in a Church. But, if a member of the Church is permitted to study to become a Minister in that Church, but disallowed to engage in his or her profession only due to the fact that he or she would be in same sex relationship there is an inherent contradiction in the conduct of the Church....

The threshold requirement in section 36 of the Constitution is that any limitation of a fundamental right must be “law of general application …” Where a church discriminates, it constitutes private discrimination, with the law of general application not likely to apply.

eNCA reports on the decision.

CORRECTION: SG's Views Sought In Title VII Religious Accommodation Case

The U.S. Supreme Court today asked for the Solicitor General to file a brief in Patterson v. Walgreen Co., (Docket No. 18-349, 3/18/2019). (Order List). In the Title VII case, the 11th Circuit held that Walgreens had offered reasonable accommodation for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. (See prior posting.) A prior posting incorrectly reported that cert. had been denied in the case.

Supreme Court Denies Review In B&B's Refusal To Rent To Lesbian Couple

The U.S. Supreme Court today denied review in Aloha Bed & Breakfast v. Cervelli, (Docket No. 18-451, certiorari denied 3/18/2019). (Order List).  In the case, a Hawaii sate appeals court held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple. (See prior posting.) The Hawaii Supreme Court denied review. (See prior posting.)

10th Circuit: Suit Against FLDS Leader Warren Jeff's Lawyers Can Move Ahead

In Bistline v. Parker, (10th Cir., March 14, 2019), the U.S. 10th Circuit Court of Appeals in a 2-1 decision reversing a district court's dismissal of the case, allowed various former members of the polygamous FLDS Church to move ahead with claims against the law firm that represented FLDS Prophet Warren Jeffs.  The court, in its 72-page opinion, summarizes plaintiffs' allegations:

Plaintiffs allege that defendants: (1) directly worked with Mr. Jeffs to create a legal framework that would shield him from the legal ramifications of child rape, forced labor, extortion, and the causing of emotional distress by separating families; (2) created an illusion of legality to bring about plaintiffs’ submission to these abuses and employed various legal instruments and judicial processes to knowingly facilitate the abuse; (3) held themselves out to be the lawyers of each FLDS member individually, thus creating a duty to them to disclose this illegal scheme; and (4) intentionally misused these attorney-client relationships to enable Mr. Jeffs’ dominion and criminal enterprise.

On plaintiffs' legal malpractice claim the majority said the district court should determine whether a lawyer-client relationship existed between defendants and various plaintiffs, saying:

If individuals have been cut off from outside resources because of sincerely held religious beliefs and have been actively and repeatedly deceived as to an attorney’s responsibilities and allegiances towards them personally, it is plausible that they reasonably believed they were individually and collectively represented by that attorney.

The district court had dismissed many of plaintiffs' claims on statute of limitations grounds. The Court of Appeals reversed, saying in part:

[D]efendants were allegedly tortfeasors who actively concealed wrongdoing from plaintiffs who plausibly contend they did not have enough knowledge to support a duty to inquire. Plaintiffs have alleged facts to support their claim that defendants had a direct fiduciary relationship of trust to plaintiffs, which they intentionally exploited to mislead plaintiffs over an extended period of time and arguably up to the time plaintiffs filed this action. The fraudulent concealment doctrine thus may operate to toll the limitations periods for plaintiffs’ claims of legal malpractice, breach of fiduciary duty, and civil conspiracy, making it inappropriate to dismiss these claims at this stage.

The court also allowed certain plaintiffs to move ahead with claims under the Trafficking Victim Protection Reauthorization Act. Judge Briscoe filed a dissenting opinion. Courthouse News Service reports at greater length on the decision.

Certiorari Denied In Historic Touro Synagogue Dispute

The U.S. Supreme Court today denied review in Congregation Jeshuat Israel v. Congregation Shearith Israel, (Docket No. 18-530, certiorari denied 3/18/2019). (Order List.) In the case, the U.S. 1st Circuit Court of Appeals held that Rhode Island's historic Touro Synagogue, and a pair of historic silver Torah ornaments worth some $7 million, are owned by New York's Shearith Israel congregation. (See prior posting and denial of en banc review.) Providence Journal reports on the Supreme Court's denial of certiorari.

Suit Challenging End of School Yoga Program Moves Ahead

AP reports that a Georgia federal district court judge refused Friday to dismiss an Establishment Clause suit against the Cobb County (GA) School District. The suit alleges the school district ended a yoga program and transferred an elementary school assistant principal in response to parents who objected to the yoga program as inconsistent with their Christian religious beliefs.  The suit brought by former Bullard Elementary School assistant principal Bonnie Cole will now move to trial.  AP reports in part:

During the 2014-2015 school year, Cole said she implemented breathing and stretching exercises based on yoga and meditation in classrooms as a way of reducing stress and encouraging relaxation....

According to the lawsuit, upset parents held a 2016 prayer rally for ‘‘Jesus to rid the school of Buddhism.’’

UPDATE: Here is the full text of the opinion and additional pleadings in Cole v. Cobb County School District (ND GA, March 19, 2019).

Recent Articles of Interest

From SSRN:

• Paula A. Franzese & Angels Carmella, Housing and Hope: Property Law and Catholic Social Teachings, (Forthcoming in Christianity and Private Law (Cochran & Moreland, eds.) (Cambridge Press)).
• Thomas Charles Berg, Freedom to Serve: Religious Organizational Freedom, LGBT Rights, and the Common Good , (Religious Freedom, LGBT Rights, and The Prospects for Common Ground (William Eskridge, Jr. and Robin Fretwell Wilson eds., Cambridge University Press 2018)).
• Thomas Charles Berg, Religious Freedom and Nondiscrimination, (50 Loyola University Chicago Law Journal 181 (2018)).
• Lloyd Hitoshi Mayer, When Soft Law Meets Hard Politics: Taming the Wild West of Nonprofit Political Involvement, (45 Journal of Legislation (2019, Forthcoming).
• Brian Bird, The Call in Carter to Interpret Freedom of Conscience, (2018) 85:2 Supreme Court Law Review 107-141.
• Tyler Broker, Church And State Originalism,(University of Memphis Law Review, Forthcoming).
• Lloyd Hitoshi Mayer, The Promises and Perils of Using Big Data to Regulate Nonprofits, (94 Washington Law Review (2019, Forthcoming)).

Fron SSRN (Non-U.S. Law):

• Azadeh Dastyari, Let the Asylum Seekers Stay: Strengths and Weaknesses of Church Sanctuary as a Strategy for Law Reform, (Monash University Law Review, Forthcoming)).
• Patrick Quirk, The Undefined Remains Unprotected: Tensions Between Conscience and the Law in Germany by Way of Joseph Isensee, (Tulane Journal of International & Comparative Law, Vol. 27, No. 1, 2018).
• Bhavya Gupta, Secularism as an Ideology: A Global and Indian Perspective, (November 16, 2018).

From SSRN (Islamic Law);

• Jeffrey A. Redding,The Pakistan Transgender Persons (Protection of Rights) Act of 2018 and Its Impact on the Law of Gender in Pakistan, (February 22, 2019).
• Nafis Alam, Islamic Finance and Business: Capital, Commerce, & Careers, (Proceedings of Harvard University Muslim Alumni Islamic Finance Conference, 2018).
• Saadiya Suleman, Innocence of Muslims: Blasphemy, Islam and Public Disorder - A Holy Analysis, (ILI Law Review Winter Issue 2018 Vol. II).

From SmartCILP:

• Joshua C. Wilson & Amanda Hollis-Brusky, Higher Law: Can Christian Conservatives Transform Law Through Legal Education?, 52 Law & Society Review 835-870 (2018).

Catholic Student Who Objects To Chicken Pox Vaccination Requirement Sues

ABC News reports on a state court lawsuit filed last week against the Northern Kentucky Health Department by a high school student who has religious objections to receiving the chicken pox vaccine. There have been 32 cases of chicken pox since February at Our Lady of the Sacred Heart Elementary School.  To stop the spread, health officials have, among other things, ordered the related Assumption Academy to bar all students who are not vaccinated or otherwise immune from the disease from participating in extra-curricular activities.  Subsequently health officials ordered the schools to exclude all non-immune students entirely from school until the spread ends, and to end other outside activities until then.  Eighteen year old Jerome Kunkel and his family, who are conservative Catholics, object to the vaccine because it was originally developed in the 1960's using cell lines from two aborted fetuses.

7th Circuit: Parsonage Allowance Exclusion Is Constitutional

In Gaylor v. Mnuchin, (7th Cir., March 15, 2019), the U.S. 7th Circuit Court of Appeals rejected an Establishment Clause challenge to Internal Revenue Code Sec. 107(2) which excludes from taxable income housing allowances paid to members of the clergy. The court noted that the Treasury Department asserted that "the survival of many congregations hangs in the balance." Applying the Lemon test, as well as the historical significance test, the court said part:

§107(2) is simply one of many per se rules that provide a tax exemption to employees with work-related housing requirements.... Congress’s policy choice to ease the administration of the convenience-of-the-employer doctrine by applying a categorical exclusion is a secular purpose, not “motivated wholly by religious considerations.”

....  The government argues Congress passed § 107(2) because providing the tax exemption only to ministers given in-kind housing tended to exclude ministers of smaller or poorer denominations....  [W]e take the government at its word, which resolves this question. “The clearest command of the Establishment Clause is that one religious denomination cannot be officially preferred over another.”

The third secular legislative purpose cited by the Treasury Department is to avoid excessive entanglement with religion. To the government, Congress’s decision to exempt ministers from the proof requirements of § 119(a)(2) prevents the IRS from conducting intrusive inquiries into how religious organizations use their facilities....

[T]he primary effect of § 107(2) is not to advance religion on behalf of the government, but to “allow[] churches to advance religion, which is their very purpose.” ...

FFRF claims § 107(2) renders unto God that which is Caesar’s. But this tax provision falls into the play between the joints of the Free Exercise Clause and the Establishment Clause: neither commanded by the former, nor proscribed by the latter. We conclude § 107(2) is constitutional.

Milwaukee Journal Sentinel reports on the decision.

Terrorist Shootings By White Supremacist In 2 New Zealand Mosques Kill 49

The Sun has details of the mass shootings by a white supremacist at two mosques in New Zealand today which killed 49 and injured 48 others, 20 of them critically. The Guardian and Perth Now describe the killer's rambling 74-page manifesto which he titled The Great Replacement.  The full text of the manifesto is available here.

Recent Prisoner Free Exercise Cases

In Janny v. Gamez, 2019 U.S. Dist. LEXIS 34932 (D CO, March 5, 2019), a Colorado federal district court adopted in part a magistrate's recommendation (2018 U.S. Dist. LEXIS 222320, Sept. 20, 2018) and allowed a parolee who is an atheist to move ahead with objections to the requirement that he stay at a Rescue Mission and take part in its religious activities.

In Kruger v. Lashbrook, 2019 U.S. Dist. LEXIS 36031 (SD IL, March 5, 2019), an Illinois federal district court dismissed an inmate's free exercise claim growing out of the refusal to allow him to receive religious greeting cards that he had ordered. Other religious claims were severed into a new case.

In Knight v. Shults, 2019 U.S. Dist. LEXIS 35791 (SD MS, March 6, 2019), a Mississippi federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 36936, Feb. 11, 2019) and refused to dismiss an inmate's claim under RFRA that he was not provided a requested Nation of Islam Ceremonial Meal.

In Fisherman v. Schaefer, 2019 U.S. Dist. LEXIS 36821 (D MN, March 7, 2019), a Minnesota federal district court adopted a magistrate's recommendation (2019 U.S. Dist. LEXIS 37752, Jan. 16, 2019) and dismissed an inmate's complaint that he was denied a vegan diet.

In Larry v. Goldsmith, 2019 U.S. Dist. LEXIS 38128 (ED WI, March 11, 2019), a Wisconsin federal district court dismissed a Muslim inmate's complaint about the one-time enforcement of a rule prohibiting praying on the floor between bunks when the dayroom is closed.

In Wilcox v. Erie County Prison, 2019 U.S. Dist. LEXIS 38282 (WD PA, March 11, 2019), a Pennsylvania federal district court dismissed an inmate's complaint that his kosher diet was rescinded as punishment for his eating kosher foods from another inmate's tray.

Rastafarian's Challenge To Marijuana Enforcement Is Rejected

In Lepp v. Yuba County, 2019 U.S. Dist. LEXIS 39855 (ED CA, March 11, 2019), a California federal magistrate judge recommended dismissing plaintiffs' contention that his ability to practice his Rastafarian religion was substantially burdened when state authorities seized his marijuana, and when they failed to promulgate a religious exemption to allow marijuana use.

Recent Prisoner Free Exercise Cases

In Hatton v. Piper, 2019 U.S. Dist. LEXIS 32219 (D MN, Feb. 28,2019), a Minnesota federal district court adopted with modifications a magistrate's report (2019 U.S. Dist. LEXIS 33010, Jan. 23, 2019) and dismissed complaints by civilly committed sex offenders that they were not permitted to attend Native American religious services.

In Long v. Somerset County Jail, 2019 U.S. Dist. LEXIS 33508 (D NJ, March 4, 2019), a New Jersey federal district court dismissed, with leave to amend, a complaint by a Muslim pre-trial detainee that the jail did not permit Friday prayer services, had insufficient accommodations for Ramadan, did not provide prayer rules, kufis or prayer oil, and serve kosher instead of halal meals.

In Burtton v. Kenosha County Jail, 2019 U.S. Dist. LEXIS 33830 (ED WI, March 4, 2019), a Wisconsin federal district court allowed a Jewish inmate to move ahead with his complaint that he was removed from the kosher meal program.

In Heid v. Mohr, 2019 U.S. Dist. LEXIS 33895 (SD OH, March 4, 2019), in a lengthy opinion, an Ohio federal district court in denying a preliminary injunction upheld a prison's prohibiting inmate access to material of the Christian Separatist Church. The judge also denied a motion for recusal.

In Mason v. Ryan, 2019 U.S. Dist. LEXIS 33962 (D AZ, March 4, 2019), in a footnote in an opinion dealing largely with other matters an Arizona federal district court rejected an inmate's complaint that he was denied access to religious programs and services.

In Young v. Rodriguez, 2019 U.S. Dist. LEXIS 34235 (ED CA, March 4, 2019), a California federal magistrate judge refused to grant summary judgment to defendants on a Rastafarian inmate's 1st and 14th Amendment claims growing out of the refusal to allow him to wear his Crown into the prison visitation room.

Cert. Filed In Montana Scholarship Tax Credit Challenge

A petition for certiorari (full text) was filed with the U.S. Supreme Court on March 12 in Espinoza v. Montana Department of Revenue.  In the case the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.)  The petition for review asks the U.S. Supreme Court to decide whether it violates the 1st or 14th Amendments for a state court to invalidate a generally available and religiously neutral student-aid program because the program includes students attending religious schools.  Institute for Justice issued a press release announcing the filing of the cert. petition.

DOD Issues Memo Implementing New Policy on Transgender Service In Military

On March 12, the Department of Defense issued Memorandum (DTM)-19-004 - Military Service by Transgender Persons and Persons with Gender Dysphoria  implementing the military's new policy limiting service in the military by transgender persons.  The new policy is effective April 12, 2019.  While there are special transition provisions for individuals who have enlisted before the effective date of the new policy, for future recruits, the following policy applies:

(1) A history or diagnosis of gender dysphoria is disqualifying unless:

(a) As certified by a licensed mental health provider, the applicant demonstrates 36 consecutive months of stability in the applicant’s biological sex immediately preceding submission of the application without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

(b) The applicant demonstrates that the applicant has not transitioned to his or her preferred gender and a licensed medical provider has determined that gender transition is not medically necessary to protect the health of the individual; and

(c) The applicant is willing and able to adhere to all applicable standards, including the standards associated with the applicant’s biological sex.

(2) A history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery is disqualifying.

The DOD has created a special website explaining in clear language and diagrams the new policy. Washington Post reports on the new policy.

Cardinal Pell Sentenced By Australian Court To 6 Years In Prison On Sex Abuse Charges

As previously reported, last December a court in Australia convicted Catholic Cardinal George Pell on five counts of child sexual offenses dating back decades. As reported by CNN, yesterday the 77-year old Cardinal who was a top Vatican advisor was sentenced by the court to six years in prison.

6th Circuit En Banc Upholds Planned Parenthood Funding Cut-Off

In Planned Parenthood of Greater Ohio v. Hodges, (6th Cir., March 12, 2019), the U.S. 6th Circuit Court of Appeals, sitting en banc, by a vote of 11-6 upheld an Ohio law which cuts off state funding for Planned Parenthood. At issue was the cut-off of funding for two Planned Parenthood health centers because they are affiliated with an "entity that performs or promotes nontherapeutic abortions." The majority explained, in part:

As the district court saw it, the Ohio law imposes two unconstitutional conditions on Planned Parenthood. It denies the organization funding if it continues to perform abortions— what the court perceived to be a due process violation. And the law denies the organization funding if it continues to promote abortion—what the court perceived to be a free speech violation. To prevail, Planned Parenthood must show that both limitations—the conduct and speech requirements—violate the U.S. Constitution. Ohio may deny funding to Planned Parenthood in other words if either limitation satisfies the Constitution. Because the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim.

Judge White's dissent (joined by 5 others) argued:

The majority avoids this straightforward application of the unconstitutional-conditions doctrine primarily by adopting an unprecedented rule that abortion providers—entities that are necessary to ensure a woman’s right to safe abortions—cannot prevail in challenging the Statute. An abortion provider’s constitutional right may be derivative of the patient’s right—but it is a right nonetheless.

Politico reports on the decision. [Thanks to Tom Rutledge for the lead.]

False Light Invasion of Privacy Suit By Pastor Is Dismissed

In Byrd v. DeVeaux, (D MD, March 4, 2019), a Maryland federal district court dismissed on ecclesiastical abstention and ministerial exception grounds a false light invasion of privacy suit brought by Alicia Byrd, a pastor at an African Methodist Episcopal Church. Byrd sought over $14 million in damages for a report issued by the parent AME Church's Ministerial Efficiency Committee saying that she collateralized church property to build a non-profit facility without proper approval and for a letter alleging that she co-mingled church funds.  The court said in part:

Some of the independent  statements Plaintiff relies on are obviously fused with concepts of church law, polity, or doctrine, while others appear secular.... As a whole, the reports and letter constitute a matter of internal church discipline, and the statements contained within the documents are incapable of extrapolation from the overall ecclesiastical nature of the documents. Thus, Plaintiff's false light claim is barred by the ecclesiastical abstention doctrine....

Here, Plaintiff's claim is rooted in the MEC's disciplinary review of Plaintiff and decision that Plaintiff should be placed on administrative leave.... [T]he ministerial exception would apply to Plaintiff's false light claim and would provide an additional reason to grant summary judgment to Defendants.

DOE Will Not Enforce Ban On Religious Organizations As Contractors For "Equitable Services" Under Federal Grants

The Elementary and Secondary Education Act requires local educational agencies to include private schools in their federally funded programs to provide supplemental educational services to provide equitable, high-quality education for students from low-income families. School districts may contract with outside providers for various educational services, however under ESSA, the provider must be independent of any religious organization.  In a press release yesterday, the U.S. Department of Education announced that this restriction would no longer be enforced, saying in part:

The U.S. Department of Education, in consultation with the U.S. Department of Justice, determined the statutory provisions in Section 1117(d)(2)(B) and 8501(d)(2)(B) of the Elementary and Secondary Education Act (ESEA) that require an equitable services provider to “be independent of … any religious organization” are unconstitutional because they categorically exclude religious organizations based solely on their religious identity.

These provisions run counter to the U.S. Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) that, under the Free Exercise Clause of the First Amendment of the U.S. Constitution, otherwise eligible recipients cannot be disqualified from a public benefit solely because of their religious character.

The Department will, however, continue to enforce the statutory requirement that the outside services being provided are "secular, neutral and non-ideological."

Cert. Filed In Universal Church Trademark Case

A petition for certiorari was filed on March 4 in Universal Church, Inc. v. Toellner. (Full text of petition at 2019 U.S. S. Ct. Briefs LEXIS 831). In the case, the U.S. Second Circuit Court of Appeals rejected a claim that the Universal Life Church had infringed the trademark of the Universal Church.  In Universal Church, Inc. v. Toellner, (2d Cir. Nov. 2, 2018), the court held that the term  "Universal Church" is generic in referring to religious counseling and evangelistic and ministerial services.

Suit Challenges Vaccination Order

The Rockland Westchester Journal News reports that a federal court lawsuit has been filed by parents of 44 students who attend Green Meadow Waldorf School in Chestnut Ridge, New York challenging the Rockland County Health Commissioner's order excluding unvaccinated children from schools. According to the paper:

The lawsuit states that Commissioner Dr. Patricia Schnabel Ruppert's order, imposed during the county's continuing measles outbreak, violates the families' religious objections to vaccinations and is unnecessary because the cases have been largely confined to insular Hasidic Jewish communities.

UPDATE: On March 12, a federal judge denied a temporary injunction that would have allowed the 44 students to return to classes. (Rockland Westchester Journal News).

Recent Articles and Books of Interest

From SSRN:

• Pauline Ridge, Not-for-Profit Law and Freedom of Religion, (Matthew Harding (ed), Research Handbook on Not-for-Profit Law (Edward Elgar, Cheltenham, 2018) 284-303).
• Avishalom Westreich, Present-Day Posthumous Reproduction and Traditional Levirate Marriage: Two Types of Interactions, (Journal of Law and the Biosciences, Forthcoming).
• Howard Kislowicz, Religious Communications Privilege, (Forthcoming, Perspectives on Evidential Privileges, Dr. Christopher D.L. Hunt, ed (Toronto: Thomson Reuters, 2019)).
• Nathan B. Oman, 'We, The People of the Kingdom of God': Constitution Writing in the Council of Fifty, (The Council of Fifty: What the Records Reveal About Mormon History 55-72 (Matthew J. Grow & R. Eric Smith, eds. (2017)).
• Eric Heinze, No-Platforming and Safe Spaces: Should Universities Censor More (Or Less) Speech than the Law Requires?, (Croatian Political Science Review (December, 2018)).
• Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash, (Texas Law Review, Forthcoming).
• Eric Heinze, Review of: Alex Brown, Hate Speech Law: A Philosophical Examination, (International Dialogue, A Multidisciplinary Journal of World Affairs (2018)).
• Ihsan Yilmaz, Erdoğan’s Political Islamist Narrative and Radicalization of the Turkish Muslim Diaspora, (November 18, 2018).
• Nathan J. Brown, Who or What Is the Wali al-Amr: The Unposed Question, (Oñati Socio-Legal Series, Forthcoming).

Recent Books:

• Ellis M. West, The Free Exercise of Religion in America: Its Original Constitutional Meaning, (Palgrave Macmillan, 2019).
•  Anver M. Emon and Rumee Ahmed, eds., The Oxford Handbook of Islamic Law, (Oxford Univ. Press, Jan. 2019).
• Duncan Ryūken Williams, American Sutra: A Story of Faith and Freedom in the Second World War, (Harvard Univ. Press, Feb. 2019).

Suit Challenges Washington State's Required Abortion Coverage

Last week, a church in Washington state filed suit in federal district court challenging the constitutionality of Washington Senate Bill 6219 signed into law last March which requires all health care plans in the state to cover contraceptives and sterilization, and to cover abortion to the same extent as they cover maternity care.  The complaint (full text) in Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, filed 3/8/2019), alleges in part:

52. ... [T]his law targets organizations that have religious and moral beliefs against abortion. Washington State has a history of targeting religious and moral pro-life organizations and individuals.

53. The strong statutory language, lack of any church exception, and anticipated evidence that pro-abortion groups assisted in drafting and enacting SB 6219, indicates that Washington and its officials deliberately targeted religious organizations and intentionally violated those organizations’ religious beliefs.

The suit alleges violations of the Free Exercise, Equal Protection and Establishment Clauses. ADF issued a press release announcing the filing of the lawsuit.