Court Dismisses Challenges To NY Repeal of Religious Exemption From Vaccination Requirement

In F.F. on behalf of her minor children v. State of New York, (Albany Cty NY Sup. Ct., Dec. 3, 2019), a New York state trial court upheld New York's repeal of the religious exemption to the state's compulsory vaccination requirement for school children.  The court rejected Free Exercise, Free Speech and Equal Protection challenges to the repeal.  The suit was brought by some 55 families of school children. In rejecting free exercise claims by plaintiffs, the parents of school children, the court rejected their argument that the object of the law was to target religion rather than protect public health.  The court went on to say in part:

[P]lainitffs most strenuous argument for applying strict scrutiny is that the repeal of the legislation was infected by statements made by individual legislators whose comments, they say, demonstrate unconstitutional hostility toward plaintiffs' sincerely held religious beliefs.  For this argument, Plaintiffs cite Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm'n., (138 S Ct 1719 [2018]), where the Supreme Court relied on the comments of individual members of the Colorado Civil Rights Commission, which sanctioned a baker for his refusal to make a wedding cake for a same sex couple....

This Court declines to extend that part of the Supreme Court's analysis in Masterpiece Cakeshop, which probed the comments of individual members of a decision-making body to the collective decision-making of New York State's Legislature and Executive.... [I]n Masterpiece Cakeshop, the Court considered the remarks of a seven-member administrative body, not a state legislature.

The trial court had previously denied a preliminary injunction against the exemption repeal (see prior posting), and the state appellate court summarily affirmed that decision. Albany Times-Union reports on the trial court's latest decision.

Greek Orthodox Archdiocese Official Arrested On Wire Fraud Charges

The U.S. Attorney's Office for the Southern District of New York announced on Monday the arrest on wire fraud charges of Jerome Dimitriou, former Executive Director of an unnamed non-profit organization. The National Herald  identifies Dimitriou as former Executive Director of Administration of the Greek Orthodox Archdiocese of America for 19 years until he was fired in 2017. According to the SDNY release:

DIMITRIOU is charged with committing two embezzlement schemes:  In one, he allegedly embezzled more than $488,000 from Organization-1 by directing subordinates to issue him unauthorized excess salary payments; in the other, he allegedly charged hundreds of personal expenses to his Organization-1 credit card, without authorization, costing Organization-1 at least tens of thousands of dollars. 

Proselytizing Does Not Rise To Level of Intentional Infliction of Emotional Distress

In Trombetta v Kruse, (NY Civ. Ct., Nov. 19, 2019), a New York state trial court held that a proselytizing pamphlet and a subsequent e-mail did not amount to intentional infliction of emotional distress, nor was any injury proven. According to the court:

The pamphlet ... shows a cartoon depiction of a catholic who is sent into the "lake of fire" to "burn in hell" for practicing as a catholic, instead of following the version of Christianity promoted by the pamphlet which is evangelical Baptist. The tract urges the reader to reject Catholicism, or be barred from heaven....

... [D]efendant wrote plaintiff an email that included the following statements: ... My family does not believe and, if any of them were to die tomorrow, they would not go to heaven but to hell. I sent them tracts because I do not want them to go to hell. I want them to go to heaven. It is what I want for you too.

The court held in part:

The First Amendment to the United States Constitution prohibits the courts of this State from evaluating the religious beliefs of a church or individual....

While the court understands why the plaintiff found the tract and email disturbing, the court does not find that the conduct rose to the level of intentional infliction of emotional distress.

[Thanks to Volokh Conspiracy for the lead.]

Sex Abuse Victims Sue Claiming Unfair Settlements By Catholic Church

AP reports on a lawsuit filed by two African-American men who are cousins and who allege that as grade schoolers in a Mississippi Catholic school they were repeatedly abused by two Franciscan bothers:

Two impoverished Mississippi men who say they were sexually assaulted by Franciscan missionaries filed a federal lawsuit Thursday claiming that Catholic officials pressured them into signing settlements that paid them little money and required them to remain silent about the alleged abuse.

The lawsuit, filed in New York, claims the church officials drew up the agreements a year ago to prevent the men from telling their stories or going to court — a violation of a 2002 promise by American bishops to abandon the use of nondisclosure agreements, as part of an effort to end the cover-up of sexual abuse within the church.

Suit Challenges New York's Ban On Reproductive Health Care Employment Discrimination

A lawsuit was filed last week in a New York federal district court by a pro-life pregnancy care center, a religious pro-life pregnancy care center membership organization and a Baptist church challenging the constitutionality of  New York's SB 660 which was signed into law earlier this month. the new law prohibits employers from taking action against an employee because of reproductive health care decisions by the employee or their dependents.  It bars employers from accessing information about employees' reproductive health decision making or requiring waivers by employees of their right to make such decisions. The complaint (full text) in CompassCare v. Cuomo, ND NY, filed 11/14/2019), alleges in part:

SB 660 is a transparent attempt to meddle in the affairs of religious and pro-life organizations—including but not limited to pregnancy care centers, churches, and schools—by forcing them to employ and associate with those persons who do not share or live by the organizations’ beliefs regarding abortion, contraception, and the impropriety of sexual relations outside the context of a marriage between a man and a woman.....

Taken together, these requirements compromise the very reason for being of these organizations, which is to promote life, oppose abortion, and teach and live a sexual ethic consistent with biblical principles.

The suit claims that the law violates their free speech and free exercise rights. CNA reports on the lawsuit.

New York Trial Court Upholds Vaccination Requirement

The Rochester Democrat & Chronicle reports that a New York state trial judge in Seneca County has rejected a challenge by an Amish family to New York's requirements that students be vaccinated in order to attend public or private school. The suit claimed that the immunization requirement violates the protection of religious freedom set out in the state constitution. The court wrote in part:

the free exercise clause of the New York Constitution would yield to a valid exercise of the state’s police powers.

2nd Circuit Allows Christian Adoption Agency To Continue Ongoing Cases Pending Appeal On Anti-Discrimination Law

In New Hope Family Services, Inc. v. Poole, (2d Cir., Nov. 4, 2019), the U.S. 2nd Circuit Court of Appeals issued a preliminary injunction allowing a Christian adoption agency, pending a decision on appeal of a lower court order, to continue to provide adoption services that are under way and ongoing without complying with New York's law barring discrimination on the basis of sex, sexual orientation, gender identity or marital status against applicants for adoption services. At the same time, the agency agreed to stop accepting all new clients while the appeal is pending. In May, the district court had rejected the agency's 1st and 14th amendment challenges to New York's anti-discrimination provisions. The Court of Appeals said in part:

On the motion record here, the court can conclude only that New Hope may succeed on the merits of its appeal; the likelihood of such success cannot confidently be predicted in advance of reviewing the circumstances and law as more fully presented by the parties in their merits briefs.

What can be determined even on the motion record, however, is that New Hope will suffer irreparable injury without the requested preliminary injunction pending appeal.

ADF issued a press release announcing the decision.

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.)

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.

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.

Judge Urges Plaintiffs To File New Religious Discrimination Suit

In TAL Properties of Pomona, LLC v. Village of Pomona, (SD NY, July 22, 2019), a New York federal district court refused to vacate its earlier judgment and reopen a religious discrimination case brought by a Jewish building developer against a New York village. Plaintiffs argued that a subsequent New York State Division of Human Rights report revealed new evidence of discrimination against Orthodox Jewish residents of the village.  The court, while ruling against plaintiffs, said:

Defendants should take little comfort in this outcome. The allegations presented on this motion, if even half true, are disturbing. I am obliged to stay within the confines of Rule 60(b), which in my judgment does not allow for this lawsuit to be reopened, but should Plaintiffs commence a new lawsuit, they may well be able to state a claim. And I do not see how Defendants will “suffer immense prejudice,” ... if they have to defend themselves on the merits. They may well be able to do so; I have no opinion as to the what the outcome of such a case would be, nor could I at this stage. But should Plaintiffs find it in their interest to pursue a case, airing the allegations and getting to the truth would hardly be a bad thing.

Court Refuses To Dismiss Loss of Sepulcher Claims

In Gutnick v Hebrew Free Burial Society for the Poor of the City of Brooklyn, (Kings Cty.. NY Sup Ct., June 28, 2019), a New York trial court refused to dismiss common law loss of sepulcher claims by the daughter of an Orthodox Jewish man who died. According to the court:

On April 13, 2014, at an open grave site, plaintiff and other mourners gathered around a coffin believed to be the decedent. During the funeral service, plaintiff noticed a handwritten sticker on the coffin with a name that was not the decedent. Plaintiff alerted the Rabbi performing the ritual and was advised that Orthodox Jewish law forbids the opening of a casket once it has been closed. However, cemetery representatives later opened the casket, in plaintiff's presence and discovered the body of an unknown woman. It is further alleged that the location of the decedent was unknown for several hours. Later, Capitol, HFBA, Mount Richmond Cemetery, and Pyramid representatives informed plaintiff that her father may have been buried in another grave. Upon identifying the grave, the representatives disinterred the coffin and opened it to discover the decedent's body, which plaintiff identified.

Suit Challenges Repeal Of New York's Religious Exemption From Vaccination

A class action lawsuit was filed yesterday in a New York state trial court seeking to enjoin the state's recently enacted repeal of the religious exemption from requirements for vaccination of school children. The complaint (full text) in F.F. v. State of New York, (Albany Cty. Sup. Ct., filed 7/10/2019), was filed on behalf of 55 families of various religions who previously were granted religious exemptions.  A number of plaintiffs were families sending their children year-around to Orthodox Jewish yeshivas. The complaint alleges that the exemption repeal was enacted based on active hostility to freedom of religion and is not supported by empirical evidence that unvaccinated minors holding religious exemptions played any part in the recent spread of measles in the state. The complaint went on to allege:

the process by which the New York State Legislature adopted the repeal belies any sense that a public health emergency justified this action; that the repeal violates the Equal Protection Clause because the legislature has concurrently retained the medical exemption and the religious exemption for students enrolled in higher education and allowed unvaccinated staff in both public and private schools in New York .... [F]inally the Court should find ... that the repeal compels speech and acts repugnant to plaintiffs’ religious beliefs....

Plaintiffs also filed a brief (full text) in support of their request for a temporary restraining order.  Albany Times Union reports on the lawsuit. Children's Health Defense issued a press release with links to additional pleadings in the case.

NY Archdiocese Sues Insurers For Coverage of Anticipated Sex Abuse Claims

As reported by Church Militant and Lower Hudson News, the Catholic Archdiocese of New York last week filed suit in a state trial court against 32 of its insurance companies to force them to cover the costs of defending cases likely to be filed when the state's new Child Victims Act set to take effect in August. The suit was filed after a subsidiary of the Chubb Group refused to defend an upcoming lawsuit that alleges the Archdiocese knew or should have known about the sexual abuse that was suffered by the plaintiff. The insurance company claims that this is an event that was expected or intended by the Archdiocese, and so is not covered by its liability policy.

New York Ends Religious Exemption From Vaccination Requirements

Yesterday New York's Gov. Andrew Cuomo signed into law A2371 (full text) repealing Pub. Health Law Sec. 2164, subd. 9 which has provided a religious exemption from mandatory vaccination requirements. In a press release announcing Cuomo's signing of the bill, the Governor's office said in part:

The United States is currently experiencing the worst outbreak of measles in more than 25 years, with outbreaks in pockets of New York primarily driving the crisis. As a result of non-medical vaccination exemptions, many communities across New York have unacceptably low rates of vaccination, and those unvaccinated children can often attend school where they may spread the disease to other unvaccinated students. This new law will help protect the public amid this ongoing outbreak....

Governor Cuomo said. "While I understand and respect freedom of religion, our first job is to protect the public health and by signing this measure into law, we will help prevent further transmissions and stop this outbreak right in its tracks."

USA Herald reports on the new law.

Two More Suits Challenge Expanded Religious Accommodation For Health Care Providers

Suit was filed yesterday in New York federal district court challenging rules recently adopted by the U.S. Department of Health and Human Services (see prior posting) expanding the protection of conscience rights for health care providers.  The 63-page complaint (full text) in National Family Planning and Reproductive Health Association v. Azar, (SD NY, filed 6/11/2019) alleges that:

The Final Rule encourages and authorizes discrimination by unlawfully granting a wide swath of institutions and individuals broad new rights to refuse to provide health care services and information.

The complaint elaborates:

The Rule will exacerbate existing systemic barriers by endangering Plaintiffs’ members’ ability to provide care to already underserved populations. For example:

• By requiring the absolute accommodation of an employee’s refusal to provide certain information and services, the Final Rule could at any time force Plaintiffs to reduce the availability or scope of services they provide or even eliminate them entirely, particularly in small locations that may rely on a single staff member to perform multiple job functions.
• By prohibiting Plaintiffs from even asking job applicants whether they are willing to perform basic job requirements, and because the Final Rule does not require employees who intend to refuse to so notify their employers or their patients, neither Plaintiffs nor their patients may be aware when a staff member is denying a patient access to needed care or information;
• By prohibiting those of Plaintiff NFPRHA’s members who are state and local governmental Title X grantees from requiring sub-recipients to comply with the statutory and regulatory requirements of Title X’s abortion counseling and referral, the Final Rule will systematically undermine the integrity of the Title X program, further jeopardizing the ability of Plaintiffs’ patients to access necessary health care and make voluntary, informed decisions about their reproductive health.

The ACLU issued a press release announcing the filing of the lawsuit.

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

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

Certiorari Denied In Challenge To Kaporos Ritual

The U.S. Supreme Court on Monday denied review in Alliance to End Chickens as Kaporos v. New York City Police Department, (Docket No. 18-1322, certiorari denied 5/28/2019). (Order List.)  In the case, New York state's highest court agreed that a petition for a writ of mandamus to require enforcement of public health and animal cruelty laws against the Jewish pre-Yom Kippur ritual of kaporos should be denied. (See prior posting).

Court Rejects Christian Adoption Agency's Challenge To Anti-Discrimination Regulation

In New Hope Family Services v. Poole, (ND NY, May 16, 2019), a New York federal district court rejected a constitutional challenge by a Christian adoption agency to New York's anti-discrimination provisions. Regulations of New York's Office of Children & Family Services prohibit adoption agencies from discriminating, among other things, on the basis of sexual orientation, gender identity or marital status. New Hope Family Services will not place children with same-sex couples or with unmarried couples. Inquiries from such couples are referred to other agencies. The court rejected New Hope's contention that the regulation violates its free exercise rights because it was adopted to target faith-based agencies.  Instead, the court found that the regulation "is facially neutral and generally applicable, and that it has been neutrally and generally applied in this case...." The court also rejected New Hope's free speech and equal protection challenges to New York's regulation. In a press release, ADF said that the decision is likely to be appealed.

New York's High Court OK's Removal Of Bishop Sheen's Remains To Illinois

New York's highest state court has dismissed sua sponte the appeal in In the Matter of Cunningham v. Trustees of St. Patrick's Cathedral, (NY Ct. App., May 2, 2019) (Order List). The decision allows the remains of the late Bishop Fulton J. Sheen to be removed from St. Patrick's Cathedral in New York and moved to Peoria, Illinois.  The move is seen by Sheen's heirs as the only way to advance the cause of sainthood for him. In a short opinion on March 5, 2019 (full text), New York's intermediate appellate court upheld the trial court's decision allowing exhumation. In its dismissal order last week, the Court of Appeals said that "no substantial constitutional question is directly involved." Peoria Journal Star reports on last week's court order.