Refusing to Allow Minister To Wear Collar At His Criminal Trial Was Not Reversable Error

 In People v. Johnson, (CA App., Feb. 18, 2025), a California state appellate court held that a trial court's refusal to allow a criminal defendant, an ordained minister, to wear his clerical collar and have a Bible with him during his trial was not reversable error. Defendant was charged with gross vehicular homicide while intoxicated. The court said in part:

Assuming only for purposes of argument that the trial court erred in not allowing defendant to wear a collar, we must determine whether the error would have been prejudicial.  Federal constitutional error requires reversal unless the beneficiary of the error can show it was “harmless beyond a reasonable doubt.” ...

... [P]rohibiting defendant from wearing a clerical collar did not result in a structural defect in the constitution of his trial.  Nothing in the record indicates his inability to wear a collar impacted the outcome of his trial, interfered with his fundamental trial rights, or in any way impacted the trial’s structural truth-finding process.  Any error by the trial court in not allowing defendant to wear a collar was not structural. 

We thus must determine whether the assumed error was harmless beyond a reasonable doubt...  Defendant offers no argument on this point.  As a result, he has forfeited the issue....  Any error by the trial court denying defendant his request to wear a clerical collar was harmless beyond a reasonable doubt and not prejudicial.

The trial court sentenced defendant to 25 years to life under California's Three Strikes Law. The Court of Appeals however remanded the case for resentencing, finding that defendant did not receive fair notice that a three-strike sentence would be sought.

6 Clergy Will Offer Prayers at Trump Inauguration Today

Donald Trump's inauguration as President begins at 11:30 AM Eastern Time today. The ceremony includes prayers offered by clergy from a variety of faiths. According to CBS News, opening invocations will be delivered by Timothy Cardinal Dolan, the Archbishop of New York and Christian evangelist Rev. Franklin Graham.

The ceremony will conclude with benedictions offered by four clergymen: Rabbi Dr. Ari Berman, president of Yeshiva University; Imam Husham Al-Husainy, a founder of the Dearborn, Michigan Karbalaa Islamic Education Center;  Pastor Lorenzo Sewell of 180 Church in Detroit, Michigan; and the Rev. Father Frank Mann of the Roman Catholic Diocese of Brooklyn, New York.

The inauguration ceremony will be streamed live by numerous news organizations, including PBS News livestream beginning at 10:30 AM Eastern Time.

Australia's High Court Says Diocese Is Not Vicariously Liable for Sex Abuse by Priest [Corrected]

In Bird v DP (a pseudonym) , (HCA, Nov. 13, 2024), the High Court of Australia in an appeal from the Supreme Court of Victoria held that a Catholic diocese is not vicariously liable for sexual abuse of a five-year old boy by a priest from a parish church within the diocese. Plaintiff at age 49 instituted suit for the psychological injuries he had sustained as a child by two separate sexual assaults by the priest that took place at the child's home. The majority opinion on behalf of five justices held in part:

A diocese, through the person of the bishop of that diocese, appoints priests and assistant priests to parishes within that diocese.... In 1966, Coffey was appointed by the then Bishop of Ballarat to St Patrick's parish church.... Coffey was not employed by the Diocese or engaged by the Diocese as an independent contractor. There was no finding that Coffey was an agent of the Diocese.

... [A] relationship of employment has always been a necessary precursor in this country to a finding of vicarious liability and it has always been necessary that the wrongful acts must be committed in the course or scope of the employment. There is no solid foundation for expansion of the doctrine or for its bounds to be redrawn.

The majority explained its conclusion in part as follows: 

... [T]he Victorian Parliament enacted the Legal Identity of Defendants (Organisational Child Abuse) Act 2018 (Vic) and amended the Wrongs Act 1958 (Vic) in response to the Redress and Civil Litigation Report of the Royal Commission into Institutional Responses to Child Sexual Abuse...  and, in so doing, adopted the recommendation in the Royal Commission report of the imposition of a new duty of care to operate prospectively only and not retrospectively....

Taken as a whole, the terms of the Victorian Parliament's legislative reforms ... weigh heavily against any expansion of the common law doctrine of vicarious liability. The "genius of the common law" includes that the "the first statement of a common law rule or principle is not its final statement", but its genius also includes many self-imposed checks and balances against "unprincipled, social engineering on the part of the common law judges". It is one thing to accept that the common law should not stand still merely "because the legislature has not moved" to adapt to changing social conditions, but another to change a common law principle in circumstances where the legislature has responded to a comprehensive review of the common law's inadequacies by the enactment of statutory provisions which make no change to that common law principle.

Justice Jagot filed a concurring opinion.

Justice Gleeson filed an opinion concurring only in the result, saying in part:

Government attention to historical child abuse by members of religious and other non-government organisations, and subsequent legislative reform to extend liability for personal injury suffered because of child abuse, reflect an evolution of attitudes to the treatment of children in our society. That evolution has produced a general intolerance of physical, sexual and psychological abuse of children, and increased recognition of societal responsibility for setting and maintaining appropriate standards of care for children, especially in institutional settings. The evolution has also been accompanied by reduced deference towards religious and charitable organisations and a commensurate preparedness to impose legal liability upon religious and other non-government organisations, including for harms inflicted by persons associated with such organisations. These changes in social conditions are not unique to Australia and can be observed across the common law world and beyond.

This case is a missed opportunity for the Australian common law to develop in accordance with changed social conditions and in tandem with developments in other common law jurisdictions. For the reasons given below, I do not agree with the plurality that relationships that are akin to employment do not attract vicarious liability in Australia.

In my view, the relationship between the Diocese of Ballarat ...,  and Father Bryan Coffey ..., an assistant parish priest appointed to that role in the parish of Port Fairy, is capable of attracting vicarious liability. Nevertheless, the Diocese is not vicariously liable for the sexual assaults that Coffey inflicted upon DP because those torts occurred in circumstances where Coffey opportunistically took advantage of his role to commit them. The torts were therefore not committed in the course of Coffey's performance of his role as assistant parish priest. Accordingly, I agree with the orders proposed by the plurality.

Law and Religion Australia reports on the decision.

[An earlier version of this post incorrectly attributed some quotes from Justice Gleason to Justice Jaggot.]

Archbishop of Canterbury Resigns, Accepting Responsibility for Coverup of Sexual Abuse of Young Men

In Britain yesterday the Archbishop of Canterbury announced his resignation, taking responsibility for an inadequate response to reports of extreme sexual abuse of over 100 boys and young men at Christian camps and public schools for decades by a barrister who was a lay preacher in the Anglican Church. A Report on abuser John Smyth was commissioned by the Church of England and authored by former social services director Keith Makin. The Report (full text) was published last month. As described by the BBC:

The Makin report described [Smyth's] "clearly sexually motivated, sadistic regime" of beatings during the 1970s and 1980s.

He singled out boys attending Christian camps and in sessions at leading public schools, including Winchester College, before taking them to his home and beating them with a cane in his shed.

Some of the victims had to wear adult nappies because of the bleeding they suffered.

Smyth was later able to travel to Zimbabwe and South Africa, where he is alleged to have continued his abuse.

He died in 2018.

A Chanel 4 News report summarizes the situation. 

In a Statement (full text) published yesterday, the Archbishop, Most Rev. Justin Welby, said in part:

Having sought the gracious permission of His Majesty The King, I have decided to resign as Archbishop of Canterbury.

The Makin Review has exposed the long-maintained conspiracy of silence about the heinous abuses of John Smyth.

When I was informed in 2013 and told that police had been notified, I believed wrongly that an appropriate resolution would follow. 

It is very clear that I must take personal and institutional responsibility for the long and retraumatising period between 2013 and 2024. 

Catholic Diocese Sues Feds Over Rule Change For Religious Worker Visas

Suit was filed last month in a New Jersey federal district court by the Catholic diocese of Patterson, New Jersey and by several Catholic priests who are citizens of foreign countries and are in the United States on R-1 Temporary Religious Worker visas.  The lawsuit challenges a State Department rule change adopted in March 2023 which makes it more difficult for religious workers on R-1 visas to obtain EB-4 special immigrant religious worker permanent resident status ("green card"). The complaint (full text) in Roman Catholic Diocese of Patterson, New Jersey v. U.S. Department of State, (D NJ, filed 8/8/2024) alleges in part:

This civil action asserts that in March of 2023, Defendant-DOS acted arbitrarily and capriciously when it imposed an unfounded and unsupported interpretation of the Act as it relates to visa availability for individuals and subject to the EB-4 preference category and employers who must rely upon the EB-4 preference category for their workers.  The recent and sudden agency action governing the calculation of visa availability and allocation by Defendant DOS was conducted without proper notice, failed to provide for a proper period of comment, exceeded the authority of Defendant-DOS, and directly threatens Individual-Plaintiffs’ ongoing ability to carry out their religious and spiritual vocation.  In doing so, Defendant-DOS acted in a manner certain to disrupt countless religious workers, forcing Individual-Plaintiffs to either violate the terms of their nonimmigrant visa or face imminent and abrupt departure the United States without any knowledge as to when, or even if, Individual-Plaintiffs will return to the United States.

The complaint alleges, among other things, violation of the Religious Freedom Restoration Act and the 1st Amendment's Free Exercise Clause.

Americal Magazine reports on the lawsuit.  North Jersey.com reports that the State Department's reaction to the lawsuit has been a statement that says in part:

[O]nly Congress has the ability to address the imbalance between the limited supply of EB-4 visas and the increasing demand. We recognize the importance of religious ministers and workers as well as their U.S. employers who lead faith-based institutions, and we share your concern about the long wait times for EB-4 visas.

Disclosure of Covid Status to Plaintiff's Pastor Did Not Infringe Privacy or Free Exercise Rights

In Fulmore v. City of Englewood, (NJ App., Aug. 30, 2024), a New Jersey appellate court dismissed a suit brought by an employee of the city's Department of Public Works who contended that his rights were violated when, early in the Covid pandemic, the city's health officer disclosed to plaintiff's pastor that plaintiff was supposed to be under quarantine because of exposure to Covid. Plaintiff, who was an associate minister at a Baptist church, had participated in an in-person recording of a religious service without disclosing to other participants that he was supposed to be in quarantine. the court said in part:

Here, plaintiff's claim that Fedorko violated his constitutional right to privacy when he disclosed plaintiff's quarantine status to Pastor Taylor is unavailing.  Fedorko's disclosure to Pastor Taylor occurred on April 10, 2020, in the context of a public health emergency, where COVID-19 "created an immediate and ongoing public health emergency that require[d] swift action to protect not only the City's employees, but the public they [were] hired to serve....

... "Given the scientifically undisputed risk of spreading this deadly virus," defendants' interest in protecting the public health from potential exposure to COVID-19 outweighed plaintiff's privacy interest in his quarantine status....

Rejecting plaintiff's claim that his religious free exercise rights were violated, the court said in part:

Here, even when viewed in the light most favorable to plaintiff, the record is devoid of evidence indicating that Fedorko's disclosure of plaintiff's quarantine status to Pastor Taylor had a "coercive effect" on plaintiff's religious practice....

... At his deposition, plaintiff testified that defendants' actions "changed [his] whole religious belief" and his "whole outlook on church."  He claimed defendants "ruined the relationship" he had had with Pastor Taylor "for the last [twenty-eight] years."...

However, plaintiff acknowledged that since the April 2020 incident, he had not been "barred" from church, nor had he ever received any "texts or messages [from Pastor Taylor] . . . saying [he was not] welcome at the church" or that Pastor Taylor "did[ not] want [plaintiff] to preach there anymore."

6th Circuit: Off-Duty Police Did Not Violate Dismissed Pastor's Free Exercise Rights

In Couzens v. City of Forest Park, Ohio, (6th Cir., Aug. 27, 2024), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of a suit brought by a church's former pastor against off-duty city police officers who assisted the congregation in physically removing a pastor who had been dismissed from his position by the congregation. The court concluded that the off-duty officers acted reasonably in threatening to arrest the pastor if he did not leave the premises. It also concluded that the pastor's free exercise rights had not been infringed, saying in part:

Couzens contends that the Forest Park Defendants interfered with his free exercise of religion when the officers threatened to arrest him during a church service. He relies primarily on Kedroff v. St. Nicholas Cathedral of Russian Orthodox Church in N. Am., 344 U.S. 94 (1952)....

Kedroff’s church-autonomy doctrine, though, guarantees the independence of ecclesiastical bodies, not individuals.... And, unlike in Kedroff, the officers’ actions here did not reflect the state’s preference for one contender for a church’s control over another. Instead, the officers attempted to enforce what, from their perspective, appeared to be a settled matter: Couzens’s removal as IBC’s pastor....

Fraud and Negligence Claims Move Ahead Against Church Over Mistreatment of Members

In Ramirez v. World Mission Society, Church of God, (D NJ, April 1, 2024), plaintiff brought suit in a New Jersey federal district court against various defendants, including a church and its Pastor, for fraud, intentional infliction of emotional distress and negligence. Plaintiff claims that she was pressured into joining defendant Church, in part through concealment of the identity of the Church's leader. She was further coerced into donating 10% of her income to the church based on misrepresentations that the donations would be used for charitable purposes rather than salaries. The Church indoctrinated its members so that they would work long hours at low pay. It alienated plaintiff from her family and friends, and told members they could not have children which led plaintiff to get an abortion and subsequently attempt suicide. The court dismissed many of the claims because elements were not adequately pleaded. Only a claim against the Church and its Pastor for intentional fraud based on false representations and a claim for negligence against the Church survived defendants' motion to dismiss.

British Appeals Court Upholds Preacher's Fraud Conviction For Selling COVID Preventative

In Wiseman v. Rex, (EWCA, Nov. 20, 2023), Britain's Court of Appeal upheld the fraud conviction of the head of the Kingdom Church for selling an oil mixture that he represented would protect against or cure COVID.  According to the court:

5.... Using the name Prophet Climate Wiseman, he described the oil mixture on his website ... as containing cedar wood, hyssop and prayer, and stated that it had “sat upon the altar for 7 days”.

6. The oil was generally referred to as “plague protection oil” or “divine cleansing oil”. Through its use, together with a scarlet yarn, it was said that the special ingredients “act like an invisible barrier” and that “coronavirus and any other deadly thing will pass over” the user....

8. The prosecution case was that promotion and sale of the oil mixture was little more than exploitative commercial opportunism disguised as an article of faith....

9. The defence case was that the appellant had promoted and sold the oil mixture in good faith. It was aimed at people who believed in God, and when the oil mixture was combined with prayer it would work to protect against and cure coronavirus.... He believed in the truth of claims made by him in respect of the oil mixture....

Appellant was given a suspended prison sentence, a 130 hour community service requirement and a costs order equivalent to more than $76,000 (US).  Appellant's unsuccessful appeal focused primarily on the judge's instructions to the jury and on statements by counsel during closing arguments.  PA Media reports on the decision.

Pastor's Breach of Contract Suit Dismissed on Ecclesiastical Abstention Grounds

In Craver v. Faith Lutheran Church, (TX App., Nov. 8, 2023), a Texas state appeals court held that the ecclesiastical abstention doctrine requires dismissal of a pastor's suit for breach of contract and fraudulent inducement brought against the church that was his former employer. After the church's executive board received complaints against the pastor, the church entered a severance agreement with the pastor. The pastor contends that the agreement included an assurance that the allegations against him would not be spread throughout the congregation. The court said in part:

Craver argues his case presents a “run-of-the mill” civil dispute, which can be resolved by application of neutral principles of law and without reference to religious matters. He contends: “While Faith Lutheran’s decision to terminate [him] is generally unreviewable, [his] claims have nothing to do with that and are instead about Faith Lutheran’s obligations under a secular, civil contract not to make certain statements.”

We disagree that church matters can be so cleanly and completely severed. Instead, the substance and nature of Craver’s fraudulent inducement and breach of contract claims are “inextricably intertwined” with matters of Faith Lutheran’s church governance.... [B]oth claims rely on circumstances surrounding contract formation and it is those circumstances which implicate the ecclesiastical abstention doctrine...

[W]e cannot untwine recommendations Church executives made in the course of church governance from the allegedly fraudulent representations that form the basis of Craver’s lawsuit.

Ecclesiastical Abstention Doctrine Does Not Apply to Church's Fraud Claims Against Former Pastor

 In New Bethel Baptist Church v. Taylor, (TX App., Aug. 29, 2023), a Texas state appellate court held that the ecclesiastical abstention doctrine does not prevent civil courts from adjudicating fraud, breach of fiduciary duty and conversion claims against its former pastor who also served as the general contractor on a church construction project.  Plaintiff claims that the pastor withdrew $300,000 from the church's bank account without authorization. The court concluded that the claims can be resolved using neutral principles of law. the court said in part:

... [T]he resolution of these causes of action does not depend on the interpretation of New Bethel’s bylaws and constitutions or other relevant provisions of governing documents. Indeed, this is an example of a civil law controversy in which a church official happens to be involved....

However, the court affirmed the dismissal of the suit because the attorney did not carry her burden of proof that she was authorized to represent the church. The court said in part:

... [R]egardless of how it is named or classified in the underlying suit, it is undisputed that there is only one church. Within this one church, there are two competing factions claiming control, i.e., the board of deacons and directors. With two competing factions claiming control of the church, attorney Robinson, as the challenged attorney, was either authorized to represent both entities, or she was not. In granting Taylor’s rule 12 motion to show authority, the trial court concluded that attorney Robinson failed to discharge her burden of proof to show her authority to act and nothing more.

Court Upholds Procedure for Obtaining Immigrant Religious Worker Classification

In Society of the Divine Word v. U.S. Citizenship & Immigration Services, (ND IL, July 20, 2023), an Illinois federal district court rejected RFRA, free exercise, Establishment Clause and equal protection challenges brought by more than a dozen religious institutions to the way in which federal law treats foreign-born ministers and international religious workers who the institutions seek to employ.  Current federal law does not allow them to file their application for a "green card" until after their employer has obtained a special immigrant religious worker classification for them. This is different than the rules for employees of secular organizations who may file for a green card concurrently with their employer's filing. The court said in part:

Plaintiffs counter that § 245.2(a)(2)(i)(B) violates the RFRA because their decisions regarding “when and where religious workers may be put into religious service” are protected by the First Amendment. They argue that § 245.2(a)(2)(i)(B) places “extreme and sometimes insurmountable burdens” on their ability to staff their religious missions. These burdens include processing delays, resource expenditure to follow up on and seek expedited adjudication of petitions, and lapses in employment authorization....

The court agrees with plaintiffs that § 245.2(a)(2)(i)(B) is still capable of substantially burdening their religious exercise even if they can use other employment-based immigration categories to hire their foreign-born religious workers. That being said, the court disagrees with plaintiffs that they have demonstrated that these alleged burdens (time, planning, and cost) have a substantial impact on their ability to determine when and where to hire and fire the religious ministers of their choice. Instead, § 245.2(a)(2)(i)(B) requires employers to plan the timing of employment decisions based on immigration status, and potentially limits the pool of qualified applicants that plaintiffs can choose from if they fail to plan accordingly. Limiting the pool of available employees based on immigration status is not the same as interfering with a religious organization’s hiring decision by pressuring them to hire or fire a particular employee, as in Hosanna Tabor Evangelical Lutheran Church and School v. EEOC, 565 U.S. 171 (2012)...

Plaintiffs’ next argument is that § 245.2(a)(2)(i)(B) violates the Equal Protection and Due Process Clauses because it discriminates against them on the basis of religion....

... [T]his court concludes that § 245.2(a)(2)(i)(B) is not based on religion; it is based on the demonstrated risk of fraud in the special immigrant religious worker program, which is not subject to other requirements that might avoid fraud in other employment-based categories. 

Labor Department Says Restaurant Used Alleged Priest to Obtain Confessions From Employees

 A June 12 press release from the Department of Labor which announced a wage-and-hour consent judgment (full text) in Su v. Garibaldi, (ED CA, 5/8/2023), described testimony during the litigation that revealed an unusual use of religious pretext. The press release relates, in part:

... [A]n employee of Che Garibaldi Inc., operator of Taqueria Garibaldi, testified that the restaurant offered employees a person identified as a priest to hear confessions during work hours. The employee told the court the priest urged workers to “get the sins out,” and asked employees if they had stolen from the employer, been late for work, had done anything to harm their employer, or if they had bad intentions toward their employer.

[Thanks to Jeff Pasek for the lead.] 

Illinois AG Releases Report on Catholic Clergy Child Sex Abuse

Yesterday, Illinois Attorney General Kwame Raoul released its 696-page Report on Catholic Clergy Child Sex Abuse in Illinois (full text). The Report stems from an investigation thar began in 2018. The Attorney General's message that begins the report says in part:

As a direct result of this investigation and my team’s persistence, the dioceses have improved their policies relating to their investigations of child sex abuse allegations and the public disclosure of substantiated child sex abusers. Before this investigation, the Catholic dioceses of Illinois publicly listed only 103 substantiated child sex abusers. By comparison, this report reveals names and detailed information of 451Catholic clerics and religious brothers who abused at least 1,997 children across all of the dioceses in Illinois.

The Report concludes with a series of recommendations. It points out that in 2014, Illinois eliminated the statute of limitations for civil claims of child sex abuse. However, that law does not permit filling of claims for which the statute of limitations had run before 2014, and the Illinois Supreme Court has held that creating a look-back window for such claims would require an amendment to the state constitution. The Report suggests that Dioceses establish independent mediation and compensation programs that would cover these claims. AP discusses reactions to the AG's Report.

Former Cantor's Claims Against Synagogue Are Dismissed

In Sklar v. Temple Israel, Westport Inc., (CT Super., April 21, 2023), a Connecticut state trial court dismissed breach of contract and intentional infliction of emotional distress claims asserted by the former Cantor of defendant synagogue, Temple Israel.  Plaintiff contended that the Temple failed to provide him the procedural protections to which he was entitled under his contract before it fired him for three incidents of unsatisfactory performance of duties. The court held that the ministerial exception doctrine precludes plaintiff's contract claims, saying in part:

[T]he manner in which the defendant Temple Israel discharged or disciplined the plaintiff would constitute government interference with an internal decision that affects the faith and mission of the synagogue, thereby violating the Free Exercise Clause. The Court also finds that it would also violate the Establishment Clause, which prohibits government involvement in ecclesiastical decisions because it concerns internal management decisions of the synagogue as to its employment relationship with its clergy.

The court concluded that plaintiff's other allegations, while serious, are legally insufficient to support a claim for intentional infliction of emotional distress. Plaintiff had complained of lapses in COVID protocols and lack of enhanced security which exacerbated his post-traumatic stress disorder.

Defrocked Cardinal McCarrick Indicted in Wisconsin on Sexual Assault Charge

 In an April 17 press release, Wisconsin Attorney General Josh Kaul and Walworth County District   Attorney Zeke Wiedenfeld announced that former cardinal Theodore McCarrick, age 92, has been charged with one count of Fourth-Degree Sexual Assault.  The charge stems from an incident that occurred in April of 1977. The complaint alleges that McCarrick repeatedly abused the victim sexually over time. In 2019, the Vatican defrocked McCarrick because of past sexual misconduct. (See prior posting.)

Prosecutors' Council Releases Report on Past Child Sexual Abuse by Catholic Clergy In Georgia

Last week, the Prosecuting Attorneys Council of Georgia released its Report of Child Sexual Abuse in the Archdiocese of Atlanta and the Diocese of Savannah (full text) (press release). The 267-page report stems from a review of Catholic Archdiocese and Diocese records, files, documents and reports. Church officials cooperated fully in the review. The Report concludes in part:

This file review did not uncover any current, ongoing, or unreported sexual abuse by priests or criminal conduct. It did reveal historical criminal allegations in Georgia against priests. None of those priests could be prosecuted because they are either deceased, have already been prosecuted or the statute of limitations expired long before the review was agreed to by the parties. The evaluation of the files also uncovered that the Church, outside of and within Georgia, relocated priests after they were accused of sexually abusing children. At times, it appeared the church did so without providing notice to officials in the new parish, diocese, or archdiocese of the prior accusations of sexual abuse of children....

Further, this review uncovered historical acts by the church and its personnel that enabled sexual abuse of minors by its priests and prevented the discovery and investigation of these acts by public or civil authorities....

[S]ince 2002, the Archdiocese of Atlanta and the Diocese of Savannah have been notifying the appropriate authorities either by contacting the Department of Family and Children Services or law enforcement of child abuse allegations reported to their organizations....

Atlanta Journal Constitution discusses the Report.

Immigration Officials Violated Pastor's Free Exercise Rights

In Dousa v. U.S. Department of Homeland Security, (SD CA, March 21, 2023), a California federal district court held that U.S. immigration officials violated the free exercise rights of Kaji Dousa, a pastor at New York City's Park Avenue Christian Church. Dousa worked extensively with immigrants in Mexico and at the southern border.  The court concluded that her rights were violated when in December 2018 a U.S. Customs and Border Patrol official e-mailed the Mexican government urging it to deny the pastor entry into Mexico and to send her back to the United States. Dousa performed religious marriage ceremonies for immigrant couples with children entering the United States who were in common-law marriages. This made it more likely that they would not be subject to family separation in the U.S. The court said in part:

While the United States undoubtedly has a compelling state interest in protecting the border, Oliveri’s admission that the email was “[l]iterally, creative writing . . . [w]ithout any basis” indicates that there exists no substantial state interest in requesting that Mexican authorities deny entry to Dousa. And, as evidenced by the United States’ other investigative efforts, there exist more “narrowly tailored” approaches to achieve border security. Dousa therefore has established that the CBP violated her Free Exercise rights by restricting her ability to minister to migrants in Mexico.

The court however rejected Dousa's claim that the investigation of her activities violated her free exercise rights. The court ordered:

... Defendants SHALL COMMUNICATE in writing to appropriate Mexican immigration authorities that their request in Oliveri’s December 10, 2018 email is fully and immediately rescinded and revoked as to Dousa.

[Thanks to Heather Kimmel for the lead.] 

Results From Election Day on Ballot Issues of Interest

Here are Tuesday's vote results for the ten ballot issues of interest to those following law and religion developments.  More details and updated information are available at Ballotpedia.

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability." Losing 49.56%- 50.44% with 97% of precincts reporting.

California Proposition 1: Right to Reproductive Freedom Amendment. Passed 65%- 35%.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license. Defeated 39%- 61%.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion. Defeated 48%- 52%.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom. Passed 57%- 43%

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion. Losing 48%- 52% with 85% of precincts reporting.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin. Winning 57%- 43% with 77% of precincts reporting.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly. Passed 63%- 37%.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest. Passed 77%- 23%.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations. Defeated 45%- 55%.

Ten Issues of Interest Are on Today's Ballots Across the Country

Today voters in ten states will be voting on ballot measures that relate to religious institutions, reproductive rights, clergy, religious freedom or religious and LGBTQ discrimination.  Here are summaries of each measure with links to fuller explanations on Ballotpedia:

Arkansas Issue 3: Constitutional amendment that would provide "government shall not burden a person's freedom of religion even if the burden results from a rule of general applicability."

California Proposition 1: Right to Reproductive Freedom Amendment.

Colorado Amendment F: Constitutional amendment to allow operators of charitable gaming activities to be paid and authorize the legislature to determine how long an organization must exist to obtain a charitable gaming license.

Kentucky Constitutional Amendment 2:  Amendment to the Kentucky Constitution to provide that nothing in the state constitution creates a right to abortion or requires government funding for abortion.

Michigan Proposal 3: Constitutional amendment to provide a right to reproductive freedom.

Montana LR-131: Referendum on statute that states infants born alive at any stage of development are legal persons, and requires medical care for infants born alive after an induced labor, cesarean section, or attempted abortion.

Nevada Question 1: Constitutional amendment to prohibit the denial or abridgment of rights on account of an individual's race, color, creed, sex, sexual orientation, gender identity or expression, age, disability, ancestry or national origin.

Tennessee Constitutional Amendment 4: Amendment to repeal section of the Tennessee Constitution that disqualifies religious ministers from being elected to the state General Assembly.

Vermont Proposal 5: Constitution amendment that would protect the right to personal reproductive autonomy and prohibit government infringement unless justified by a compelling state interest.

West Virginia Amendment 3: Amendment to remove the state constitution's prohibition on incorporating religious denominations and churches and to authorize the state legislature to pass laws providing for such incorporations.