County Settles Suit Over Invocation Policy

According to yesterday's Carroll County Times, the Carroll County, Maryland, Board of Commissioners voted unanimously yesterday to settle a lawsuit, originally filed in 2013, challenging the Commissioners' policy on invocations.  Prayers that were often sectarian were delivered by members of the County Commission, on a rotating basis, rather than by invited clergy or a chaplain.  The Commissioners decided to settle the case after the 2017 decision by the U.S. 4th Circuit Court of Appeals in Lund v. Rowan County, North Carolina finding a similar practice unconstitutional. (See prior posting.) At yesterday's Board meeting, a number of citizens objected to the settlement.

Pence To American Legion:VA Hospitals Will Not Be "Religion-Free Zones"

On Wednesday, Vice President Mike Pence addressed the American Legion's National Convention in Indianapolis (full text of remarks). Among the accomplishments of the Trump Administration which Pence reviewed in his 35-minute speech, was the following:

You might’ve heard even today that there’s a lawsuit to remove a Bible that was carried in World War II from a Missing Man Table at a VA hospital in New Hampshire.  There’s a lawsuit underway.  It’s really no surprise because, under the last administration, VA hospitals were removing Bibles and even banning Christmas carols in an effort to be politically correct.  But let me be clear: Under this administration, VA hospitals will not be religion-free zones.  (Applause.)

We will always respect the freedom of religion of every veteran of every faith.  And my message to the New Hampshire VA hospital is: The Bible stays.  (Applause.)

Pence ended his speech thanking veterans, alluding to language from Psalm 18 and Psalm 144 in doing so:

As the Psalmist wrote, you “trained your hands for war,” and we thank Him who gave you the grace “to advance against a troop” and come home safe to serve all of those who also serve.

Baptist Leader Sued In Myanmar Over Meeting With Trump

According to The Irrawaddy, in Myanmar a member of the military's northern command stationed in Kachin province filed a lawsuit Monday in the Myitkyina Township Court against a Baptist pastor for his remarks at a White House meeting. In July, Kachin Baptist Convention President Rev. Dr. Hkalam Samson attended a U.S. State Department meeting of victims of religious persecution from around the world. As part of the event, he and others met with President Donald Trump in the Oval Office.  Irrawaddy reports:

The legal complaint cites a live broadcast of the conversation between the religious leader and the US president on the Facebook page of World News Now....

... Samson told Trump there was no religious freedom in Myanmar and that oppression and torture were still common in the country, where fighting between ethnic armed organizations and the Myanmar military continues despite a return to civilian rule. 

He also requested Trump support Myanmar’s transition to “genuine” democracy and federalism. 

... Samson also thanked the US for imposing sanctions against Myanmar military commander-in-chief Senior-General Min Aung Hlaing and other leaders over extrajudicial killings of Rohingya Muslims. The sanctions bar the officers from entry to the US.

New Jersey Assisted Suicide Law Reinstated By Appeals Court

In Glassman v. Grewal, (NJ App.,  Aug. 27, 2019), a New Jersey state appeals court lifted the temporary restraining order entered by a trial courtearlier this month (see prior posting) preventing the state's Aid in Dying for the Terminally Ill Act from being enforced.The appeals court said in part:

Here, plaintiff failed to establish that injunctive relief was necessary to prevent irreparable harm and preserve the status quo.... The only harm identified by the court was the Executive Branch's failure to adopt enabling regulations. Neither the court nor plaintiff, however, identified how the absence of such regulations harmed him, irreparably or otherwise.... 

Further, as the Act makes clear, participation by physicians like plaintiff is entirely voluntary. The only requirement the Act imposes on health care providers who, based upon religious or other moral bases, voluntarily decide not to treat a fully-informed, terminally-ill patient interested in ending their lives, is to transfer any medical records to the new provider selected by the patient. See N.J.S.A. 26:16-17(c). We fail to discern how the administrative function of transferring those documents constitutes a matter of constitutional import, or an act contrary to a physician's professional obligations. In this regard, we note that a physician has long been required to transfer a patient's records on request, see N.J.A.C. 13:35-6.5, and does so without personal assent to any subsequent medical procedures.

A few hours later, the New Jersey Supreme Court refused to vacate the appeals court decision. (Full text of Supreme Court Order.) NorthJersey.com reports on the decisions.

9th Circuit: FLDS Towns Discriminated Against Non-Church Members

In United States v. Town of Colorado City, Arizona, (9th Cir., Aug. 26, 2019), the U.S. 9th Circuit Court of Appeals upheld an injunction issued by an Arizona federal district court, finding that the FLDS-controlled town of Colorado City engaged in a pattern or practice of discriminating against non-members of the Fundamentalist Latter Day Saints.  In affirming a finding that the city violated 34 U.S.C. § 12601, the court concluded that the statute imposes liability on governments for patterns of unconstitutional conduct by their officers and agents.  In the suit, the United States charged that Colorado City (as well Hildale, Utah) "functioned as an arm of the Church and conspired with FLDS leaders to use the Towns’ municipal resources to advance Church interests." AP reports on the decision.

Suit Challenges North Carolina County's Refusal To Recognize Marriages Performed By Universal Life Clergy

Suit was filed this week in a North Carolina federal district court challenging the refusal by the Cleveland County, North Carolina marriage official to issue marriage licenses to couples whose weddings were performed by Universal Life Church (ULC) ministers. ULC ordains anyone "who feels the call" as a minister. Ordination takes place online for free and credentials are sent to applicants by mail. North Carolina Gen. Stat. §51-1 allows "an ordained minister of any religious denomination to officiate at weddings.  The complaint (full text) in Universal Life Church Monastery Storehouse v. Harnage, (WD NC, filed 8/26/2019), alleges violation of the Establishment, Equal Protection and Free exercise clauses, as well as of Art. VI and of the North Carolina constitution, saying in part:

Defendant’s apparent policy of refusing to recognize the validity of marriages performed by ULC Monastery ministers officially prefers certain religions or religious denominations over ULC Monastery by allowing other religious leaders to solemnize marriages but declining to extend that same benefit to ULC Monastery ministers.

Charlotte Observer reports on the lawsuit.

Part of Missouri's New Abortion Law Is Preliminarily Enjoined

In Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc. v. Parson, (WD MO, Aug. 28, 2019), a Missouri federal district court granted a preliminary injunction against enforcement of provisions in Missouri law (full text) that wold have gone into effect today that would have banned all abortions (except in cases of medical emergencies) after 8, 14, 18 or 20 weeks of pregnancy. The court ultimately refused to enjoin another section of Missouri's law that bans any abortion if the provider knows that the woman is seeking the abortion because of the sex or race of the child or because of a prenatal diagnosis of Down Syndrome. The court held that while such provisions as they apply to non-viable fetuses are likely unconstitutional, plaintiffs have not shown that a preliminary injunction pending final resolution of the issue is necessary to prevent some demonstrable real-life harm. NPR reports on the decision.

Suit Challenges Illinois Waiver Form To Allow Drivers License Photo With Head Covering

Suit was filed this week in an Illinois federal district court on behalf of a Muslim woman who wears a hijab challenging the disclaimer that Illinois administrative rules require to be filed in order to allow a driver's license photo to be taken wearing a head covering. The complaint (full text) in Bicksler v. Illinois Secretary of State, (ND IL, filed 8/26/2019),contends that plaintiff's free exercise rights under the 1st Amendment and Illinois' Religious Freedom Restoration Act and the Illinois Human Rights Act were violated when she was required to sign this statement:

In observation of my religious convictions, I only remove my head dressing in public when removal is necessary (such as for a medical examination or a visit to a hair dresser or barber). I do not remove the head dressing in public as a matter of courtesy or protocol (such as when entering a professional office or attending a worship service). I acknowledge that if the Director of the Driver Services Department is provided with evidence showing I do not wear a religious head dressing at all times while in public, unless circumstances require the removal of the head dressing, my driver’s license or identification card may be canceled.

CAIR Chicago issued a press release announcing the filing of the lawsuit.

Nuclear Protesters' RFRA Defense Rejected

In United States v. Kelly, (SD GA, Aug. 26, 2019), a Georgia federal district court refused to dismiss indictments against seven Catholics who are members of the Plowshares Movement, an activist group opposed to nuclear weapons.  Defendants were indicted for trespass and destruction of government property after they broke into a highly secured Naval Submarine Base and in protest of nuclear weapons poured blood on the ground, hung banners and painted messages. Defendants contended that their actions were protected by the Religious Freedom Restoration Act. The court said:

Because Defendants' actions at Kings Bay were exercises of their sincerely held religious beliefs that they should "take action in opposition to the presence of nuclear weapons at Kings Bay,"... Defendants' actions at Kings Bay were engaged in for religious reasons and were thus "religious exercises" within the meaning of RFRA....

It went on, however:

The government has established that it has compelling interests in the safety of those on Kings Bay Naval Submarine Base, the security of the government assets housed there, and the smooth operation of the base.

NY Court Rejects Challenge To Vaccination Exemption Repeal

In F.F. on behalf of her minor children v. State of New York, (Albany Cty. Sup. Ct., Aug. 23, 2019), a New York state trial court judge rejected a class action challenge to recently enacted New York legislation that repeals the religious exemption to vaccination requirements for school children. The repeal was enacted in response to a measles outbreak earlier this year. The suit was brought by 55 families. The court refused to issue a preliminary injunction, finding that plaintiffs were unlikely to prevail on the merits of their free exercise, equal protection or compelled speech claims. The court concluded that the vaccination law was a neutral law of general applicability, and that the repeal was not action showing hostility to religious belief. The court concluded that plaintiffs did have a colorable argument that elevated scrutiny might be required under the hybrid rights theory, but that even if that is the case the state had a compelling interest in repealing the exemption:

Protecting public health, and children's health in particular, through attainment of threshold inoculation levels for community immunity from communicable diseases is unquestionably a compelling state interest....

Gothamist reports on the decision. (See prior related posting.)

Suit By Mennonite Group Over Lockers For Homeless Is Settled

The Rocky Mountain Collegian yesterday reported on the settlement of a lawsuit brought by the Fort Collins Mennonite Fellowship against the city of Fort Collins after City Council added restrictions on the Fellowship's locker program for the homeless.  The city limited the hours of operation and required constant supervision of the lockers during those hours.  The Fellowship sued claiming that the restrictions are unreasonable, vague, overly burdensome and prevent the church from practicing its religious obligation of helping those less fortunate. According to the paper's report, a negotiated settlement has been reached, but must still be approved by City Council at its Sept. 3 meeting:

The City will pay a negotiated amount of $60,000 to FCMF’s lawyers to cover some of the costs incurred during the lawsuit.

As for the locker program, access hours are expanded to 6 a.m. to 9 p.m., and a church representative no longer has to supervise during all hours of operation. Lockers will still be physically restricted outside those hours, but guests may access their belongings if a church representative unlocks the lockers for them. 

The church’s surveillance camera, installed early on in the program, will continue running 24/7. Footage will be retained for seven days.

Israel's Courts Wrestle With Sex-Segregated Cultural Events

In Israel, the controversy over gender-segregated events sponsored by municipalities continues. Times of Israel reports that on Sunday a Haifa district court ordered cancellation of a performance by ultra-Orthodox singers Mordechai Ben David and Motty Steinmetz which was to be open only to men. The ruling came in a suit filed by a women's rights group.  The court said in part:

The ultra-Orthodox public in Haifa is entitled to funding for cultural activities like every other public group, but when it comes to public money, there is a need to act in accordance with instructions from the attorney general and the government. It’s important to remember that in regards to the entrance to public places, there is a law that forbids discrimination in products, services and entrances to entertainment venues and public areas, 

Earlier this month, the High Court of Justice banned a similar sex-segregated performance in the city of Afula, but its ruling came too late to actually prevent the performance from going ahead. In response to the Afula case, Israel's Attorney General Avichai Mandelblit provided guidance on when municipal authorities can organize gender-segregated cultural events.  As reported separately by Times of Israel:

Mandelblit published guidelines for authorities saying that gender-segregation could be permissible if the separation were voluntary and desired by the target audience, men and women had equal conditions, and separation did not unduly impact those opposed to it.

“The greater the voluntary component, the less the difficulty in gender segregation, and when it comes to a completely voluntary segregation in which every person chooses his place without being directed, there is no difficulty,” Mandelblit said.

Amicus Briefs In SCOTUS Gay and Transgender Title VII Discrimination Cases Now Available

Dozens of amicus briefs have been filed with the U.S. Supreme Court and are now available from the SCOTUSblog case page in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. At issue is whether Title VII of the 1964 Civil Rightts Act prohibits discrimination against transgender people based on their transgender status or on a "sex stereotyping" theory.  The 6th Circuit held that discrimination on the basis of transgender status violates Title VII. (See prior posting.) the Supreme Court will hear oral arguments in the case on Oct. 8.

Similarly, numerous amicus briefs are available in Bostock v. Clayton County, Georgia, (consolidated with Altitude Express, Inc. v. Zarda) which will also be argued on Oct. 8. These cases raise the question of whether Title VII prohibits sexual orientation discrimination. The 2nd Circuit in Altitude Express  held that Title VII does cover such discrimination. (See prior posting.) In the Clayton County case, the 11th Circuit held that Title VII does not ban sexual orientation discrimination.

RLUIPA Allows Inmate To Grow Fist-Length Beard

In Sims v. Inch, (ND FL, Aug. 23, 2019), a Florida federal district court, in a 19-page opinion, extended the U.S. Supreme Court's 2015 holding in Holt v. Hobbs which allowed a Muslim inmate to grow a half-inch beard for religious reasons.  In the case decided last week, the district court held that RLUIPA similarly entitles a Muslim prisoner to grow a fist-length beard (and trim his mustache) when his religious requires it. The court concluded that "a fist-length beard can be accommodated as easily as a half-inch beard-- or nearly so." [Thanks to Glenn Katon for the lead.]

Recent Articles of Interest

From SSRN:

• Ashutosh A. Bhagwat, The Conscience of the Baker: Religion and Compelled Speech, (William & Mary Bill of Rights Journal, Forthcoming).
• Tipu Makhdoom, Politics of Religion in Pakistani Law, (January 1, 2016).
• Nancy J. Knauer, The Politics of Eradication and the Future of LGBT Rights, (Georgetown Journal of Gender and the Law, Vol. 21, No. 2, 2020).
• Elizabeth Katz, 'Racial and Religious Democracy': Identity and Equality at Mid-Century, Stanford Law Review, Forthcoming.
• Christian Lee Gonzalez Rivera, A Government by Men, Not Nature: A Natural Law Case for Limits on the Judicial Enforcement of Natural Law and Unenumerated Rights under the Constitution, 24 Trinity L. Rev. 1 (2019).
• Robert J. Miller, Nazi Germany and American Indians, (August 14, 2019).

From SmartCILP:

• Steven K. Green. The "Irrelevance" of Church-State Separation In the Twenty-First Century, [Abstract], 69 Syracuse Law Review 27-68 (2019).
• Mark Strasser, Masterpiece of Misdirection?, 76 Washington & Lee Law Review 963-1010 (2019).

From Academia.edu:

• Studia Gilsoniana, The State, Law, Religion, and Justice in Cicero’s The Republic and The Laws: An Aristotelian-Thomistic Interpretation, (Studia Gilsoniana 8, no. 3 (July –September 2019): 645 –680.
• Zachary Purvis, Religion, Revolution, and the Dangers of Demagogues: The Basel "Troubles" (Wirren) and the Politics of Protestantism, 1830-1833, (Church History 88, no. 2 (June 2019): 409–439, 2019).

8th Circuit Vindicates Wedding Videograhers' 1st Amendment Claims

In Telescope Media Group v. Lucero, (8th Cir., Aug. 23, 2019), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, held that the 1st Amendment protects wedding videographers who refuse on religious grounds to produce videos of same-sex weddings. Minnesota contended that the refusal violates two provisions of Minnesota's Human Rights Act.  Judge Stras, writing for the majority, said in part:

Minnesota’s interpretation of the MHRA interferes with the Larsens’ speech in two overlapping ways. First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech....

Laws that compel speech or regulate it based on its content are subject to strict scrutiny....

... [R]egulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be.

The majority also concluded that because the state's action burdens religiously motivated speech, the hybrid rights doctrine requires strict scrutiny. The majority remanded the case to the district court for it to decide whether the videographers are entitled to a preliminary injunction.

Judge Kelley dissenting, said in part:

 ... [T]he court tries to recharacterize Minnesota’s law as a content-based regulation of speech, asserting that it forces the Larsens to speak and to convey a message with which they disagree. Neither is true. The Larsens remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake, that is what today’s decision affords them license to do.

Reuters reports on the decision.

Kentucky Supreme Court Hears Oral Arguments On Refusal To Print Pride Festival T-Shirts

On Friday, the Kentucky Supreme Court heard oral arguments (video of full arguments) in Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals.  In the case, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused because of religious beliefs to print T-shirts for a local LGBT Pride Festival. (See prior posting.) WFPL News reports on yesterday's oral arguments. [Thanks to Tom Rutledge for the lead.]

3rd Circuit Upholds Pennsylvania Legislative Prayer Policy

In Fields v. Speaker of the Pennsylvania House of Representatives, (3d Cir., Aug. 23, 2019), the U.S. 3rd Circuit Court of appeals, in a 2-1 decision, upheld the invocation policy of the Pennsylvania House of Representatives.  The state's legislative chamber invites guest chaplains to open sessions with prayer, but excludes non-theists.  It also posts a sign asking visitors to rise during the prayer.  Judge Ambro, writing for the majority said in part:

A group of nontheists have challenged the theists-only policy under the Establishment, Free Exercise, Free Speech, and Equal Protection Clauses of our Constitution. As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power. For the Free Exercise, Free Speech, and Equal Protection Clauses, we hold that legislative prayer is government speech not open to attack via those channels.

The nontheists also challenge as unconstitutionally coercive the requests to “please rise” for the prayer. We hold that the single incident involving pressure from a security guard is moot. As for the sign outside the House chamber and the Speaker’s introductory request that guests “please rise,” we hold that these are not coercive.

Judge Restrepo, dissenting as to the exclusion of non-theists, said in part:

[B]y virtue of the fact that the history and tradition of legislative prayer in this country is thus devoid of any history of purposeful exclusion of persons from serving as chaplains based on their religions or religious beliefs, the Pennsylvania House’s guest-chaplain policy—which purposefully excludes adherents of Plaintiffs’ religions and persons who hold Plaintiffs’ religious beliefs from serving as guest chaplains—does not fit “within the tradition long followed in Congress and the state legislatures” and therefore violates the Establishment Clause.

[Thanks to Adam Bonin for the lead.]

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

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

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

In a related case, Miller v. Caudill, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals affirmed the award of $222,695 in attorneys' fees to several same-sex couples who had obtained a preliminary injunction against Davis' policy, but litigated no further after Davis' deputy clerks agreed to issue the licenses.  The 6th Circuit concluded that plaintiffs qualified as a "prevailing party" entitled to attorneys' fees under 42 USC §1988, and that these fees should be paid by the state of Kentucky rather than Rowan County.  The Court said in part:

A win is a win—regardless of whether the winner runs up the score. To prevail, then, plaintiffs didn’t need to obtain duplicative relief in every form that they originally sought it. They wanted the opportunity to obtain marriage licenses in Rowan County, and the preliminary injunction gave them exactly that.

Louisville Courier Journal reports on this decision. [Thanks to Tom Rutledge for the lead.]

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

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

First International Day For Victims of Anti-Religious Violence

Yesterday was the International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief, as created by a United Nations Resolution (full text) adopted earlier this year. The U.S. Commission on International Religious Freedom issued a statement (full text), saying in part:

Commemorating victims of violence based on religion or belief is critical, but that’s only the beginning of the world’s work to achieve justice for the survivors of past tragedies, like the genocide of Yazidis, Christians and Shi’a Muslims in Iraq by ISIS...

Hung Jury In Pro-Life Tax Objector's Trial

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

Challenge To California Order Requiring Health Plan Abortion Coverage Is Unsuccessful

In Missionary Guadalupanas of the Holy Spirit, Inc. v. Rouillard, (CA Ct. App., Aug. 6, 2019), a California state appellate court held that the state's Department of Managed Health Care did not violate the state Administrative Procedure Act when it notified seven health care service plans that they must cover abortions. The state statute does not require compliance with the rule-making process for a  regulation "that embodies the only legally tenable interpretation of a provision of law." A California statute requires insurance plans to cover "basic health care services." The court said in part:

We hold that an abortion is one of two medically necessary options for the treatment of a woman’s pregnancy. A pregnant patient may elect medical services necessary to deliver a baby, or to terminate the pregnancy. Because California law guarantees every woman the right to choose whether to bear a child or obtain an abortion, the only legally tenable interpretation of the law is that abortions are basic health care services, which health care service plans are required to cover.

This case did not present a question of whether requiring abortion coverage violates the religious freedom rights of the Catholic organization filing suit. Los Angeles Times reports on the decision.

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

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

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

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

Catholic High School Sues Over Restrictions On Athletic Field Use

A Madison, Wisconsin Catholic high school has filed suit challenging the manner in which the city's zoning code is being applied to the school.  The complaint (full text) in Edgewood High School of the Sacred Heart, Inc. v. City of Madison, Wisconsin, (WD WI, filed 8/21/2019), alleges violations of RLUIPA as well as various other federal, state and local constitutional and statutory provisions. Because a master plan filed by the school in connection with the renovation of its athletic field stated that it would be used for team practices and physical education classes, zoning authorities contend that it cannot be used for athletic contests, even though the field had been used for nearly a century to host such games. The complaint alleges:

All of the City’s public high schools and the University of Wisconsin-Madison share the same zoning classification as Edgewood, yet the City is imposing these restrictions on Edgewood alone....

The City has treated Edgewood on less than equal terms with the non-religious institutions located and operating within the City’s Campus-Institutional District. 

 Wisconsin State Journal, reporting on the case, explains:

Edgewood’s attorneys have contended that [the master plan] wasn’t meant to be an exhaustive list of uses, while residents have suggested games were intentionally left out to allay neighbors frustrated with the increased use of the field since it was upgraded in 2015.

Residents of the surrounding Dudgeon-Monroe neighborhood have organized against Edgewood’s attempts to bring further improvements to the field — especially a 2017 plan that would have added stadium seating, lights, a sound system and permanent bathrooms — arguing that the field disrupts their quiet neighborhood. Many put signs in their yard reading, “No new stadium.”

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

In Turco v. City of Englewood, New Jersey, (3d Cir., Aug. 19, 2019), the U.S. 3rd Circuit Court of Appeals held that neither side was entitled to summary judgment in a challenge to Englewood's ordinance creating an 8-foot buffer zone around abortion clinics. The ordinance was enacted in response to aggressive anti-abortion protests that regularly occurred outside one clinic. In reversing the district court's grant of summary judgment to plaintiff and remanding the case for further proceedings, the appeals court said in part:

This record contains a multitude of contradicting factual assertions. Some facts suggest that the buffer zones imposed a significant restraint on the plaintiff’s ability to engage in constitutionally-protected communication. Others support Englewood’s position that the buffer zones hardly affected plaintiff’s ability to reach her intended audience. Some facts support plaintiff’s argument that the City had foregone less restrictive options to address the chaotic environment outside of the clinic. Others show that Englewood considered these options and reasonably rejected them or found them to be ineffective. In short, the record does not conclusively demonstrate that either party is entitled to summary judgment on the narrow tailoring claim.

North Jersey Record reports on the decision. [Thanks to Tom Rutledge for the lead.]

Cardinal Pell's Conviction Upheld

In Australia, the Victoria Court of Appeal has affirmed the conviction of Cardinal George Pell for sexual offenses.  The court has published a summary of the judgment in Pell v. The Queen, (Victoria Ct. App., Aug. 21, 2019) indicating that the court , by a 2-1 vote, dismissed the appeal. (Case page.) The court's summary says in part:

Cardinal Pell’s conviction and this appeal have attracted widespread attention, both in Australia and beyond. He is a senior figure in the Catholic Church and is internationally well known. As the trial judge, Chief Judge Kidd, commented when sentencing Cardinal Pell, there has been vigorous and sometimes emotional criticism of the Cardinal and he has been publicly vilified in some sections of the community. There has also been strong public support for the Cardinal by others. Indeed, it is fair to say that his case has divided the community.

Catholic News Service reports on the decision.

Author's Suit Against Libraries and Media Is Dismissed

In Egli v. Chester County Library System, (ED PA, Aug. 12, 2019), a Pennsylvania federal district court dismissed a pro se lawsuit brought by the author of a book on anti-Semitism against several libraries, and radio and television stations.  The libraries refused plaintiff's offer to present book talks, and the media defendants refused to interview him on air. The court said in part:

Libraries are not required to accommodate every book or proposed talk, but instead must determine based on their professional judgment which materials are deemed to have “requisite and appropriate quality” to occupy the limited space available. There is nothing in the Complaint to suggest that either MCLS or CCLS had policies or customs that are inconsistent with this constitutionally permissible discretion or that target certain viewpoints.

Pennsylvania Record reports on the decision.

Rules On Tribal Possession of Eagle Remains Are Liberalized

The U.S. Fish and Wildlife Service announced last week that it has revised its policy on handling of bald and golden eagle remains found on lands of recognized Indian tribes. Under previous rules, the remains would be transferred to the National Eagle Repository.  Now, federally recognized tribes that wish to keep eagle remains found on their land will be able to do so once they report the find to law enforcement officials and officials determine that the eagle was not taken intentionally and does not pose human health risks:

Under the updated policy, a federally recognized Tribe must receive a permit prior to possessing eagle remains found within Indian Country. When a Tribal member or an employee of a federally recognized Tribe discovers eagle remains, he or she must report it immediately to Tribal or Service law enforcement officials.

Eagle remains found and reported may be eligible for return to the federally recognized Tribe for religious purposes after the Service completes any activities it deems necessary for law enforcement or for scientific management reasons.

Salt Lake Tribune reports on the rule change.

California Priest Sues Accusers In Defamation Lawsuit

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

Suit Over Use of Civic Center For Religious Worship Is Settled

A joint consent decree (full text) was filed yesterday in a South Carolina federal district court in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, Aug. 19, 2019), settling a lawsuit over restrictions on the use of the Edisto Beach Civic Center.  The decree reflects the town's action rescinding its prohibition on renting out space in the Civic Center for “religious worship services.” The town also agreed to pay $3112 in damages plus plaintiff's attorney's fees. As explained in a press release from ADF:

Shortly after the lawsuit began, the U.S. Department of Justice filed a statement of interest in the case in favor of the church. The lawsuit argued that the town’s previously amended guidelines were inconsistent and amounted to viewpoint discrimination—allowing some groups “to engage in singing, teaching, social interaction, and similar expressive activities” at the center while denying “access to those groups that engage in those same activities from a religious viewpoint.”

Bibles Are Excluded From Tariffs On Chinese Goods

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

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

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

Recent Articles and Forthcoming Books of Interest

From SSRN:

• Micah Schwartzman & Jocelyn Wilson, The Unreasonableness of Catholic Integralism, (Virginia Public Law and Legal Theory Research Paper No. 2019-43 (2019)).
• Steven F. Friedell, Jewish Law in Israel — Hope and Renewal, (August 9, 2019).
• Robert C. Blitt, The International Religious Freedom Act: Non-State Actors and Freedom from Sovereign Government Control, (August 9, 2019).
• Mohammad Fadel, The Challenges of Islamic Law Adjudication in Public Reason, (Public Reason and Courts, edited by Langvatn et al., Cambridge University Press, Forthcoming).
• Carl H. Esbeck, The World War I Memorial Cross Case: U.S. Supreme Court Takes a New Approach with the Establishment Clause, (University of Missouri School of Law Legal Studies Research Paper No. 2019-15 (2019).
• Courtney G. Joslin, Autonomy in the Family, (66 UCLA Law Review 912 (2019)).
• Abner S. Greene, Barnette and Masterpiece Cakeshop: Some Unanswered Questions, (13 FIU L. Rev. 667 (2019)).

Forthcoming Books:

• Adriano Prosperi, Crime and Forgiveness: Christianizing Execution in Medieval Europe, (Harvard Univ. Press, May 2020).
• Magda Teter, Blood Libel: On the Trail of an Antisemitic Myth, (Harvard Univ. Press, Jan. 2020).
• Ian Coller, Muslims and Citizens: Islam, Politics, and the French Revolution, (Yale Univ. Press, Jan. 2020).
• Edward E. Curtis IV, Muslim American Politics and the Future of US Democracy, (NYU Press, Dec. 2019).
• P. Peter Sarros, U.S.-Vatican Relations, 1975–1980: A Diplomatic Study, (Notre Dame Univ. Press, Dec. 2019).

Texas Limit On Marriage Officiants Upheld

In Center for Inquiry, Inc. v. Warren, (ND TX, Aug. 16, 2019), a Texas federal district court rejected a number of constitutional challenges to a Texas law that limits those who can officiate at marriage ceremonies to clergy and specified government official. It does not allow other secular celebrants. The court, applying the Lemon test held that the law does not violate the Establishment Clause, saying in part:

The Statute does not discriminate among religions nor does it have the primary objective of favoring religion over nonreligion. At most, the Statute provides a benefit to religion that is indirect or incidental in light of the historical context of this Statute; however, this does not make the Statute unconstitutional.... The Statute still provides for civil, nonreligious ceremonies performed by judges, while also allowing those who wish to be married in a religious ceremony to do so.

The court also rejected an equal protection challenge, saying in part:

The Statute in this case rationally serves that purpose by limiting secular officiants to current and retired judges and by leaving it up to the religious organization—any religious organization—to determine who is authorized in accordance with its belief system to solemnize marriages. The fact that the Statute does not allow every secular individual trained to solemnize marriages to legally solemnize marriages in Texas does not make this statute unconstitutional. Instead, there is a rational basis for the Statute’s limitation based on both the historical practice of allowing judicial and religious officials to solemnize marriages, and because these individuals and their respective organizations can reasonably be expected to ensure the prerequisites to marriage are met and that the ceremony contains the necessary level of respect and solemnity without the need for significant involvement and oversight by the state.

Court Temporarily Enjoins New Jersey's Assisted Suicide Law

Fox29 News reports that on Wednesday, a New Jersey state trial court judge issued a temporary restraining order preventing the state's Aid in Dying for the Terminally Ill Act from being enforced.  The bill took effect on Aug. 1. (Background).  The suit challenging the Act was brought by an Orthodox Jewish physician who says that the law is an affront to religious doctors.  Sec. 26-16-17(c) of the Act provides:

If a health care professional is unable or unwilling to carry out a patient's request under P.L.2019, c.59 (C.26:16-1 et al.), and the patient transfers the patient’s care to a new health care professional or health care facility, the prior health care professional shall transfer, upon request, a copy of the patient's relevant records to the new health care professional or health care facility.

The lawsuit alleges that this requirement to transfer records violates doctors' rights to practice medicine without breaching the fiduciary duties of their patients as well as doctors' rights "to freely practice their religions in which human life is sacred and must not be taken." A hearing in the case is set for October.

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

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

Plaintiffs objected that their 1st Amendment rights were infringed when the mayor told the audience at the meeting:

We do not need any comments about anybody’s religion, that is not the purpose of this meeting tonight and any comments regarding other religions or disagreements with religions will be called out of order.

The court responded:

This was not, as plaintiffs would have, a ban on talking about religion. This is clear from the fact that comments mentioning religion—including comments mentioning Islam specifically—were allowed when they were relevant to zoning issues....

The court also rejected a number of other challenges to the conduct of the meeting, including an Establishment Clause claim.  Detroit News reports that plaintiffs intend to seek en banc review of he decision.

Pro-Life Advocate Nominated For Missouri Federal District Judgeship

On Wednesday the White House announced a number of intended judicial, US Attorney and US Marshall nominations. Among these are the nomination of  Sarah Pitlyk for a judgeship on the U.S. District Court for the Eastern District of Missouri. The St. Louis Post-Dispatch details her past work on pro-life and religious liberty issues:

Pitlyk is special counsel to the Chicago-based Thomas More Society, a not-for-profit law firm "dedicated to restoring respect in law for life, family, and religious liberty." At the society, she worked to defeat an "abortion sanctuary city" ordinance in St. Louis, and on "several landmark pro-life and religious liberty cases." ...

Pitlyk was involved in a dispute over whether a divorced St. Louis County couple's frozen embryos were property or "unborn children" under Missouri law; a civil lawsuit filed against Planned Parenthood by a man acquitted of a bomb threat charge; and the defense of a man accused in California of making a false exposé claiming Planned Parenthood was selling fetal tissue....

Pitlyk graduated summa cum laude from Boston College before receiving master’s degrees in philosophy from Georgetown University and in applied biomedical ethics from the Katholieke Universiteit Leuven in Belgium, where she was a Fulbright Scholar...

She graduated from Yale in 2008 ... [where she] founded Yale Law Students for Life.

Money Damages Unavailable Under RFRA

In Ajaj v. United States, (SD IL, Aug. 13, 2019), an Illinois federal district court, passing on an issue on which several circuits are split, held that money damages are not available in suits under the Religious Freedom Restoration Act against federal officials in their individual capacities. The suit was brought by a Muslim inmate who claims prison officials burdened his religious practices. The court said in part:

[T]he Religious Land Use and Institutionalized Persons Act (RLIUPA)—RFRA’s “sister statute” that applies against the states ... contains nearly the exact same operative language as RFRA....But the Supreme Court has already held that damages against the states were not “appropriate relief” under that statute because Congress must “give clear direction that it intends to include a damages remedy” against a State for one to be available.....

While Ajaj says that the Court should treat RLIUPA and RFRA differently because Congress enacted RLIUPA under the Spending Clause, that looks like a red herring. “Given that RFRA and RLUIPA attack the same wrong, in the same way, in the same words, it is implausible that ‘appropriate relief against a government’ means something different in RFRA, and includes money damages.”

Labor Department Proposes Religious Exemption Clarification For Government Contractors

Executive Order 11246 requires that all federal government contracts contain a provision barring the contractor from discriminating against employees on various grounds, including religion. The Executive Order, however, contains an exemption for "a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." Today the Department of Labor published in the Federal Register proposed rules (full text) to clarify the scope of this exemption. Among other things, the proposal clarifies the kinds of entities covered by the exemption:

Religious corporation, association, educational institution, or society means a corporation, association, educational institution, society, school, college, university, or institution of learning that is organized for a religious purpose; holds itself out to the public as carrying out a religious purpose; and engages in exercise of religion consistent with, and in furtherance of, a religious purpose. To qualify as religious a corporation, association, educational institution, society, school, college, university, or institution of learning may, or may not: have a mosque, church, synagogue, temple, or other house of worship; be nonprofit; or be supported by, be affiliated with, identify with, or be composed of individuals sharing, any single religion, sect, denomination, or other religious tradition.

According to Axios, opponents of the rule change argue that it would allow government contractors to fire LGBTQ employees, or unmarried employees who are pregnant, on the basis of the employer's religious views.

Suit Challenges Virginia Fair Housing Act Provision Barring Religious Language In Ads

Suit was filed in a Virginia state trial court yesterday challenging a provision in the state's Fair Housing Code which provides that advertisements using "words or symbols associated with a particular religion.... shall be prima facie evidence of an illegal preference under this chapter which shall not be overcome by a general disclaimer." The complaint (full text) in Carter v. Virginia Real Estate Board, (VA Cir. Ct., filed 8/14/2019) contends that realtor Hadassah Hubbard Carter's free exercise, free speech and due process rights were infringed when the Virginia Real Estate Board claimed that she had violated the Fair Housing Code by use of a religious phrase in her e-mail signature line, and a Biblical quotation and a recitation of her religious beliefs on her business website. ACLJ issued a press release announcing the filing of the lawsuit.

Pro-Life Group Wins Challenge To University's Student Fee Allocation Process

In Apodaca v. White, (SD CA, Aug. 13, 2019), a California federal district court held that California State University- San Marcos cannot use mandatory student fees from objecting students to fund programs and speakers until the University adopts specific and detailed neutral standards for determining which funding applications will be granted. The suit was filed by a pro-life student group that was seeking funding for a lecture about abortion. ADF issued a press release announcing the decision.

Challenge To New York's Elimination of Religious Exemption From Vaccination Is Argued In Court

Media (such as Newsday, Gothamist, New York Law Journal) covered yesterday's oral arguments in a New York state trial court in a case challenging the constitutionality of New York's recent law that eliminated religious exemptions from vaccination requirements for school children. Robert F. Kennedy, Jr., a skeptic of vaccines, was one of the attorneys who argued the case for 55 families who are plaintiffs in the case.  They contend that the new law violates their religious freedom protections, and that legislators were motivated by hostility toward specific religious groups. The law was passed after an outbreak of measles in recent months. The state argued that the legislature was motivated by public health concerns.

Suits Filed As New York's Window For Old Child Sex Abuse Cases Opens

AP reports on the numerous lawsuits that were filed yesterday as the state's recently enacted Child Victim Act opened for the first time a one-year window for previously time-barred child sex abuse lawsuits. Defendants in various cases include the Catholic Church, Jehovah's Witnesses, Boy Scouts, Jeffrey Epstein, Rockefeller University and various public schools. Meanwhile, WBFO reports that statewide, 45 judges have been designated to hear Child Victim Act cases.

Georgia's Prisoner Grooming Policy Struck Down

In Smith v. Dozier, (MD GA, Aug. 7, 2019), (on remand from the 11th Circuit) a Georgia federal district court in an 18-page opinion held that the Georgia Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act. The state's policy allows inmates only to grow a beard up to one-half inch in length. No religious exemption from the requirement is provided.  The court went on to hold that for inmates who qualify for a religious exemption, the state must allow beards up to three inches in length. In its opinion, the court examined and rejected several justifications offered by the state for its challenged policy. Law.com reports on the decision.

Sex Abuse Lawsuit Against Jehovah's Witnesses To Be Filed Today

The provision in Sec. 3 of New York's Child Victims Act that creates a one-year window for filing previously time-barred child sex abuse lawsuits is triggered as of today.  New York Post reports that two former Jehovah's Witnesses will file suit in state court today:

Lawyers for Heather Steele, 48, and John Michael Ewing, 47, alleged at a press conference Monday that the Witnesses and its eight-member leadership council even maintain a database of church sex offenders that it’s kept secret....

Ewing claims in his lawsuit that a Jehovah’s Witness elder molested him “approximately four to six times per week” for four years, starting when he was 14 — including while his abuser was on vacation with his family.

Steele, who grew up in New York and is now living in Orlando, Florida, claims she was still in diapers when Jehovah’s Elder Donald Nicholson, a family friend, started molesting her in the mid-1970s.

Saudi Arabia Relaxes Legal Restrictions On Women

Human Rights Watch reported earlier this month on significant changes that Saudi Arabia has made to its restrictions on women's rights:

The legal changes, adopted by a Council of Ministers decision and endorsed by royal decree M.134, will allow Saudi women to obtain passports without the approval of a male relative, register births of their children, and benefit from new protections against employment discrimination. Saudi official sources have announced that women over 21 will no longer require male guardian permission to travel abroad, but the Council of Ministers decision makes no reference to women’s freedom to travel....

The Council of Ministers decision on July 31, 2019, published in the official gazette on August 1, amend the Travel Documents Law, the Civil Status Law, and the Labor Law.

White House Already Planning For Christmas

The White House issued a press release yesterday announcing that planning for the 2019 Christmas season is already under way at the White House.  It invites applications from individuals interested in volunteering to decorate the White House or act as greeters during Holiday Open Houses.  It also invites musicians including high school bands, choirs, and Christmas-themed entertainers to apply to perform during the Holiday Open Houses in December.

Homeless Shelters Excluded From City's Anti-Discrimination Ordinances

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Aug. 9, 2019), an Alaska federal district court issued a preliminary injunction barring enforcement of two of Anchorage's anti-discrimination ordinances against a faith-based homeless shelter for women which admits only individuals who were determined to be female at birth. Thus transgender men may be admitted, but transgender women may not.  The court concluded that homeless shelters are not covered by either the fair housing or public accommodation provisions of the city's code. ADF issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Micah Schwartzman, Must Laws Be Motivated by Public Reason? (Public Reason and Courts (Silje Langvatn, et al. eds., Cambridge University Press, Forthcoming).
• Oana Horhogea, Law and Religion. The Mystical Link, (June 30, 2019).
• Cecile Laborde, Abortion, Marriage and Cognate Problems, (American Journal of Jurisprudence (July 2018)).
• Matthew Segal, America’s Conscience: The Rise of Civil Society Groups Under President Trump, (UCLA Law Review, Vol. 65, No. 6, 2018).
• Charles A. Sullivan, Making Too Much of Too Little?: Why 'Motivating Factor' Liability Did Not Revolutionize Title VII, (August 2, 2019).
• Eric Steven Smith, Exploiting the Charitable Contribution Deduction's Hypersalience, (Utah Law Review, Forthcoming).

From SSRN (Non-US Law):

• Leah Bornstein-Makovetsky, The Welfare of the Minor As a Fundamental Principle Guiding Guardianship and Custody Issues in Ottoman Jewish Society, (Forthcoming, International Journal of the Jurisprudence of the Family).
• Harlan Grant Cohen, The Primitive Lawyer Speaks!: Thoughts on the Concepts of International and Rabbinic Laws, (Villanova Law Review, Forthcoming).
• Avishalom Westreich, Surrogacy and Egg Donation in Israel: Legal Arrangements, Difficulties, and Challenges, (Fundamental Legal Problems of Surrogate Motherhood - Global Perspective (Piotr Mostowik, ed., Warsaw, 2019)).
• Sujit Choudhry, Postcolonial Proportionality: Johar, Transformative Constitutionalism and Same Sex Rights in India, (Philipp Dann, ed., The Global South and Comparative Constitutional Law (Oxford University Press, Forthcoming)).
• Ayesha Umar, Assessing Social Inclusion through Transgender Legal Reforms in Pakistan, (October 7, 2018).
• Erum Sattar, Property Rights for Landless Agricultural Workers and the Flexibility of Hanafi Land Law Jurisprudence: A Solution for Rural Displacement?, (August 1, 2019).

From SmartCILP:

• Michael Arthur Vacca, Education and Religious Freedom in the Toledo Guiding Principles: A Comparative Analysis Between the Holy See and the United States, 36 Arizona Journal of International & Comparative Law 111-132 (2019).
• Daniel Altaras, Separation of Synagogue and State in Israel, 36 Arizona Journal of International & Comparative Law 133-163 (2019).
• James D. Nelson, Corporate Disestablishment, 105 Virginia Law Review 595-654 (2019).
• Samuel W. Calhoun, Inappropriate for Establishment Clause Scrutiny: Reflections on Mary Nobles Hancock's Note. God Save the United States and this Honorable County Board of Commissioners: Lund, Bormuth, and the Fight Over Legislative Prayer, 76 Washington & Lee Law Review 485-508 (2019).

Court Rejects School's Transgender Bathroom Restrictions

In Grimm v. Gloucester County School Board, (ED VA, Aug. 9, 2019). a Virginia federal district court held that a school system violated Title IX and the equal protection clause of the 14th Amendment when it prevented a transgender male student from using rest rooms that correspond with his gender identity. The court rejected the school's argument that its policy is substantially related to protection of student privacy.  The court also issued a permanent injunction requiring the school to update the student's school records to reflect the male gender listed on the student's updated birth certificate. Washington Post reports on the decision.

Hajj Is Underway In Saudi Arabia

As reported by Time, in Saudi Arabia yesterday (Friday, Aug. 9) more than 2 million Muslims gathered at Mecca to begin the Hajj. The Conversation has a detailed explanation of each of the five days' rituals.

7th Circuit Clarifies Application of Ministerial Exception Doctrine

In Sterlinski v. Catholic Bishop of Chicago, (7th Cir., Aug.8, 2019), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Easterbrook held employment discrimination allegations brought by an organist in a Catholic church must be dismissed under the "ministerial exception" doctrine.  In deciding the case, the court clarified the 7th Circuit's approach to determining when the ministerial exception doctrine will apply:

If the Roman Catholic Church believes that organ music is vital to its religious services, and that to advance its faith it needs the ability to select organists, who are we judges to disagree? Only by subjecting religious doctrine to discovery and, if necessary, jury trial, could the judiciary reject a church’s characterization of its own theology and internal organization. Yet it is precisely to avoid such judicial entanglement in, and second-guessing of, religious matters that the Justices established the rule of Hosanna-Tabor....

It is easy to see a potential problem with a completely hands-off approach. Suppose a church insists that everyone on its payroll, down to custodians and school-bus drivers, is a minister. That is not fanciful—it is what one religious group did assert in Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985)....

The answer lies in separating pretextual justifications from honest ones....  Once the defendant raises a justification for an adverse employment action, the plaintiff can attempt to show that it is pretextual. The defense bears the burden of articulating the justification, but the plaintiff bears the burden of showing that the justification is a pretext.

Near the end of his opinion, Judge Easterbrook adds an interesting tangential discussion of the history of music in the Catholic Church:

Even Hieronymus von Colloredo, the Prince-Archbishop of Salzburg who sacked Wolfgang Mozart, understood that music has a vital role in the Roman Catholic faith. After Colloredo decided that the mass, including its music, must not  exceed 45 minutes, Mozart asked for leave to travel. Colloredo refused and fired him.... Colloredo thought that lesser (and less demanding) musicians would suffice; he did not remove music from the mass. In 1782 he abolished instrumental music in church and severely limited accompanied music, but the organ remained. The rest of the world gained from Colloredo’s decisions, as Mozart moved to Vienna and went on to produce secular masterpieces such as the Marriage of Figaro and the Jupiter Symphony, as well as two glorious masses in which the music alone exceeds 45 minutes (the Mass in C minor, K. 427/417a, and the Requiem, K. 626).

3rd Circuit Upholds Cross On County Seal

In one of the first cases to rely on the U.S. Supreme Court's decision in June rejecting an Establishment Clause challenge to the 94-year old Bladensburg Cross, the U.S. 3rd Circuit Court of Appeals yesterday rejected a challenge to a Latin cross on the 75-year old official seal of Lehigh County, Pennsylvania. In Freedom From Religion Foundation, Inc. v. County of Lehigh, (3d Cir., Aug. 8, 2019), the 3rd Circuit said in part:

American Legion confirms that Lemon does not apply to “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.”... Instead, informed by four considerations, the Court adopted “a strong presumption of constitutionality” for “established, religiously expressive monuments, symbols, and practices.”...

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

Seventh Day Adventist Tennis Players Sue Over Tournament Scheduling

Suit was filed this week in a Washington federal district court by two high school tennis players who are Seventh Day Adventists and were precluded from participating in state championship tournaments because matches were scheduled on their Sabbath (Friday night/ Saturday).  The complaint (full text) and motion for preliminary injunction (full text) in J.G.C. v. Washington Interscholastic Activities Association, (WD WA, filed 8/6/2019) allege that plaintiffs' free exercise and equal protection rights were infringed, and that the anti-discrimination provisions of Washington law and the Establishment Clause were violated in two respects.  Plaintiffs object to tournament scheduling that includes Friday evening/ Saturday games. They also object to tournament rules that require players participate in all events, except in case of injury, illness or unforeseen events.  Religious accommodation is not permitted. Becket issued a press release announcing the filing of the lawsuit.

Religious Activist Fined For Burning Library's LGBTQ Children's Books

In Orange City, Iowa yesterday, religious activist Paul Robert Dorr was found guilty of criminal mischief and fined $125 for burning four children's books that he checked out of the public library. As reported by the Des Moines Register, the books had LGBTQ themes. Dorr posted a video to Facebook showing him throwing the books into a burning barrel after he denounced the Orange City library for having the books.

Israel's Election Laws Require Advertising Companies to Sell Space For Objectionable Ads

In Israel yesterday, the Central Elections Committee, the body within the Knesset that enforces election laws, ruled that two major advertising companies in Israel cannot refuse to sell advertising space to Noam-- a far-right religious conservative party known for its opposition to gay rights.  As reported by the Times of Israel, the advertising companies-- which control large amounts of the billboard and bus advertising space-- objected to ads targeting gays and Reform Jews.  The ads read:

[Gay] pride and the buying of children, or having my son marry a woman – Israel chooses to be normal.

Reform [Judaism] or my grandson remains Jewish – Israel chooses to be normal.

Israel's 1959 Election Law (Publicizing Methods) prohibit companies selling election advertising from discriminating between political parties in any way. The Elections Committee's decision was handed down by Supreme Court Justice Neal Hendel.

Suit Charges Mormon Church With Intentional Misrepresentation of Its History

A former member of the Mormon Church filed suit this week in a Utah federal district court accusing the "Mormon Corporate Empire" of fraud, breach of fiduciary duty, RICO violations and intentional infliction of emotional distress. The 75-page complaint (full text) in Gaddy v. Corporation of the President of the
Church of Jesus Christ of Latter-day Saints, (D UT, filed 8/5/2019), asks for certification as a class action and contends:

2. This is not a claim for propagating false religious beliefs as part of the Mormon Church. Rather, it is a claim that the material facts upon which Mormonism is based have been manipulated through intentional concealment, misrepresentation, distortion and or obfuscation by the COP to contrive an inducement to faith in Mormonism’s core beliefs.

3. For almost 200 years, the COP, through its agent leaders, has represented Mormonism to be the restoration of the gospel of Jesus Christ, claiming that the divine authority essential to that gospel (Melchizedek and Aaronic priesthoods) was taken from the Earth after Christ’s crucifixion. It was purportedly restored hundreds of years later to Joseph Smith, Jr....

4. When the true facts are substituted for the longstanding false orthodox narrative, the story that emerges has shocked devoted Mormons who have made life-altering decisions based upon a scheme of lies.

Courthouse News Service reports on the filing of the lawsuit.

Factional Dispute In Church Dismissed

In In re Torres, (TX App., July 30, 2019), a Texas appellate court ordered dismissal of a suit between two factions of a church known as Templo Bautista.  According to the court:

Ramirez and Herrera complain about the removal of a pastor, his replacement by another, the manner in which that was done, whether it complied with the church procedures, the removal of parishioners as church members, and the way Torres and those aligned with him came to govern their church.

The court held that these "are controversies insulated from judicial interference under the neutral principles methodology. Thus, the trial court lacked subject-matter jurisdiction to address or regulate them."

State Has Compelling Interest In Licensing of Medical and Naturopathy Practice

In Jimenez v. Washington State Department of Health, (WA App., Aug. 5, 2019), a Washington state appellate court affirmed a finding by the health department that a marriage and family therapist engaged in the unlicensed practice of medicine and naturopathy. The court rejected Arely Jiminez's claim that the health department violated her free exercise rights protected by the U.S. and Washington state constitutions.  The court said in art:

Here, even assuming that the Department’s actions have infringed on Jimenez’s right to freedom of religion, the Department has a compelling public health and welfare interest in limiting the practice of medicine and naturopathy to individuals licensed by the Department. To the extent that Jimenez’s practice of Medicine without a Washington license burdened her exercise of religion, the Department’s interest in public health and safety justified any infringement of her constitutional rights.

11th Circuit: Board of Immigration Appeals Failed to Consider Evidence of Ahmadi Persecution In Pakistan

In Ali v. U.S. Attorney General, (11th Cir., Aug. 5, 2019), the U.S. 11th Circuit Court of Appeals vacated and remanded for further consideration a decision of the Board of Immigration Appeals (BIA) denying asylum, withholding of removal and Convention Against Torture claims by a Pakistani immigrant who practices Ahmadiyya Islam. The Appeals court concluded that the BIA ignored numerous de jure and de facto elements of harassment and abuse of Ahmadis that might lead to a conclusion of religious persecution.  The court said in part:

[T]he Board wields wide discretion on how to proceed on remand, and we today express no opinion on the merits. We simply hold that the Board’s decision, read alongside the record, considered alongside our religious persecution cases, is so puzzling that we cannot be sure the Board afforded Ali the consideration of his claims that the law requires. 

EEOC Wins Settlement For Jehovah's Witness Employee

In a July 31 press release, the EEOC announced that American Medical Response of Tennessee, Inc., a medical transportation service company, has settled a religious discrimination lawsuit filed against it by the EEOC. The company will pay $40,000 in damages for refusing to continue accommodating a Jehovah's Witness employee's request for Sundays off for worship.  The company also entered a 2-year consent decree requiring it to develop a religious accommodation policy and train its employees regarding Title VII.

European Court Says Russia Violated Rights of LGBT Organizations

Last month, in Zhdanov and Others v. Russia, (ECHR, July 16, 2019), the European Court of Human Rights in a Chamber Judgment held that Russia had violated Article 6 (access to courts), Article 11 (freedom of association) and Article 14 (prohibition of discrimination) of the European Convention on Human Rights in refusing to register three organizations that promote LGBT rights.  Russia had denied registration on various grounds, including the contention that the organizations could destroy the moral values of society, decrease Russian population, jeopardize the institutions of family and marriage, and incite social or religious hatred. The Court issued a press release announcing the decision.

Challenge To Florida Abortion Waiting Period Law Remains In Play

In State of Florida v. Gainesville Woman Care, LLC, (FL App., Aug. 1, 2019), a Florida state appellate court refused to grant summary judgment in a facial challenge to Florida's 24-hour waiting period for abortions. Even though Florida's Supreme Court upheld a temporary injunction against the law's enforcement, the appeals court, in a 2-1 decision, concluded:

Since the temporary injunction phase of this case ... the State has built a case that raises genuine issues of material fact. Among the remaining unresolved issues is the parties’ dispute about the informed consent medical standard of care.

Judge Wolf dissented, saying in part:

Uniquely treating abortions differently from other medical procedures and failing to present evidence that the statute is the least restrictive means to accomplish the purported goals of section 390.0111(3) renders the law unconstitutional. Discouraging people from exercising a constitutionally protected right does not constitute a compelling state interest.

Miami Herald reports on the decision.

Recent Articles of Interest

From SSRN:

• James J. Friedberg, International Law, Settlements and the Two-State Solution, (WVU College of Law Research Paper, No. 2019-021 (2019)).
• Intisar A. Rabb, Conscience Claims in Islamic Law, (Religious Freedom, LGBT Rights, and the Prospects for Common Ground, 2019).
• Chai Feldblum, Religious Liberty and LGBTQI Rights: Finding the Right Balance-- Ruth Bader Ginsburg Lecture, (Thomas Jefferson Law Review, Vol. 41, No. 2, 2019).
• Mattheus Stephens, Connecting the Dots; What Feminists, Lesbians, Gays, and Bisexuals Should Learn From the Transgender and Intersex Communities About Challenging Gender and Sexual Orientation Discrimination, Thomas Jefferson Law Review, Vol. 41, No. 2, 2019.
• Michele Goodwin & Erwin Chemerinsky, The Transgender Military Ban: Preservation of Discrimination Through Transformation, (Northwestern University Law Review, Vol. 114, No. 3, 2019, Forthcoming).
• Michael J. Higdon, While They Waited: Pre- Obergefell Lives and the Law of Nonmarriage, (Yale Law Journal Forum, Vol. 129, p. 1, July 2019).
• Pamuela Halliwell, The Psychological & Emotional Effects of Discrimination Within the LGBTQ, Transgender, & Non-binary Communities, (Thomas Jefferson Law Review, Vol. 41, No. 2, 2019).
• Julie A. Greenberg, Beyond the Binary: Constitutional Challenges to Male/Female Sex Classification Systems, (Thomas Jefferson Law Review, Vol. 41, No. 2, 2019).
• Mark Austin Walters, Jennifer Paterson, Rupert Brown & Liz McDonnell, Hate Crimes Against Trans People: Assessing Emotions, Behaviors and Attitudes Towards Criminal Justice Agencies, (Journal of Interpersonal Violence, 2017).
• Mark Austin Walters & Alex Krasodomski-Jones, Patterns of Hate Crime: Who, What, When and Where?, (Project Report. DEMOS, 2018).
• Intisar A. Rabb, The Curious Case of Bughaybigha, 661–883: Land and Leadership in Early Islamic Societies, (Justice and Leadership in Early Islamic Courts, 2017).
• Ahmed Ahmed Elamer, Collins G. Ntim, Hussein Abdou & Chris Pyke, Sharia Supervisory Boards, Governance Structures and Operational Risk Disclosures: Evidence from Islamic Banks in MENA Countries, (Global Finance Journal, Forthcoming).
• Nafiseh Ghafournia & Patricia L. Easteal, Help-Seeking Experiences of Immigrant Domestic Violence Survivors in Australia: A Snapshot of Muslim Survivors, (Journal of Interpersonal Violence, 2019).

From SmartCILP:

• Bruce N. Cameron & Blaine L. Hutchison, Thinking Slow About Abercombie & Fitch: Straightening Out the Judicial Confusion in the Lower Courts, 46 Pepperdine Law Review 471-510 (2019).
• Barak D. Richman, Religious Freedom Through Market Freedom: The Sherman Act and the Marketplace for Religion, 60 William & Mary Law Review 1523-1543 (2019).

Preliminary Injunction Denied In Challenge To Conscience Provisions In Insurance Law

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, Aug. 2, 2019), a Washington federal district court denied a preliminary injunction against a group of Washington state provisions that plaintiff claims requires it to pay for abortifacient contraceptive coverage for individuals in its health insurance plan. At issue is an Attorney General's Opinion that says the insurance commissioner may require insurance companies to to include the cost of prescription contraceptives in the rate setting actuarial analysis where an employer raises a conscientious objection to paying these costs directly as a part of it benefit package. The court found that plaintiff lacks standing to assert the claim at this point because:

Cedar Park has not provided evidence that insurance costs are in fact calculated or charged in a manner to which it has a religious objection...

The court also dismissed on ripeness grounds, saying that plaintiff "cites no communications from or statements of the State which could form the basis of Cedar Park’s belief that it will be subject to enforcement..." The court however allowed plaintiff to file an amended complaint contending that it is treated less favorably than religious organizations which are health care providers, carriers, and facilities.

Australian Rugby Star Sues Over His Firing For Instagram Post

In April, star Australian Rugby player Israel Folau was fired for breaching the Professional Players' Code of Conduct which requires players to "to treat everyone equally, fairly and with dignity regardless of gender or gender identity, sexual orientation, ethnicity, cultural or religious background, age or disability". The firing follows Folau's posting on Instagram a banner reading: "Drunks, homosexuals, adulterers, liars, fornicators, thieves, atheists and idolators - Hell awaits you." (Background.) Now, according to BBC News, Folau has filed suit against Rugby Australia seeking $10 million in damages and reinstatement. He alleges that he is the victim of religious discrimination for expressing his Christian religious views.  It is expected that the case will set important precedent for the balance between religious freedom and the interest in banning hate speech in Australia.

Court in Burma Dismisses Blasphemy Suit Against U.S. Ambassador

Yesterday in Myanmar, a township court dismissed a lawsuit that had been filed against the U.S. Ambassador and two others, charging that a picture posted on Facebook defamed Buddhism. Irawaddy reports:

Nationalist monk U Parmaukha filed the lawsuit against US Ambassador Scott Marciel, the artist who painted the picture and the person who posted the picture on the official Facebook page of the US Embassy in Yangon. The image was of a painting done for an environmentally themed art exhibit the embassy hosted in July.

The US Embassy in Yangon on Friday promoted the “Insight Out Art Exhibition” of young artists on its Facebook page with a painting that depicts a silhouette of Buddha wearing a gas mask in the foreground while factories belching smoke are seen in the background.

Chapter XV of the Myanmar Penal Code outlaws various offenses against religious feelings.