Suit Seeks More Information On Clergy Abuse In Pennsylvania

Yesterday a class action lawsuit was filed in a Pennsylvania state trial court alleging that eight Pennsylvania Catholic dioceses continue to cover up sexual abuse by priests despite the recent Pennsylvania grand jury report on clergy abuse. The suit was brought on behalf of victims of clergy sexual abuse and children currently enrolled in Catholic schools. The lawsuit seeks injunctive relief ordering dioceses to release all information in their possession regarding predatory priests, including the names of predatory priests that were redacted from the grand jury report. AP and York Daily Record report on the lawsuit.

In a related report, yesterday the Pittsburgh Post-Gazette published a background story on Daniel Dye, the state Attorney General's prosecutor who led the grand jury investigation of abuse by Catholic clergy.  The paper says that since the release of the grand jury report, the Attorney General's office has received 1,000 calls from people reporting abuse.

Suit Charges Catholic Church With Defamation

The Morning Call yesterday reported on a lawsuit filed in a Pennsylvania state trial court by Juliann Bortz based on information which she learned for the first time from the recently released Pennsylvania state grand jury report on sexual abuse by Catholic clergy.  The lawsuit, alleging defamation and intentional infliction of emotional distress, claims that Church officials gathered “irrelevant, unrelated [or] false ‘dirt’ ” on Bortz to discredit her reports of abuse by a priest.

3rd Circuit Hears Arguments On Cross In County Seal

Yesterday, the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Freedom From Religion Foundation v. County of Lehigh.  In the case, a Pennsylvania federal district court reluctantly held that a large, central Latin cross in the seal and flag of Lehigh County, Pennsylvania violate the Establishment Clause under the Lemon test and the endorsement test.  Daily Journal reports on the oral arguments.

Excluding Non-Theists As Legislative Guest Chaplains Violates Establishment Clause

In Fields v. Speaker of the Pennsylvania House of Representatives, (MD PA, Aug. 29, 2018), a Pennsylvania federal district court held that the guest chaplain policy of Pennsylvania's House of Representatives violates the Establishment Clause.  The legislative chamber's policy allows invocations to be given only by  individuals who adhere to, or are members of a religious organization that subscribes to, a belief in “God” or a “divine” or “higher” power. The House Speaker and Parliamentarian refused to permit a non-theist to serve as a guest chaplain to deliver an invocation. The court said in part:

That history has tolerated the natural prevalence of theistic legislative prayer is hardly evidence that the Framers would abide deliberate and categorical exclusion of nontheists. Accordingly, the House’s prayer practice finds no refuge in history and tradition....

In light of this nation’s vastly diverse religious tapestry, there is no justification to sanction government’s establishment of a category of favored religions—like monotheistic or theistic faiths—through legislative prayer.

The court also held:

The House’s pre-2017 opening invocation practice, which coerces visitors to stand during the opening prayer and thereby participate in a religious exercise, likewise offends the Establishment Clause.

Americans United issued a press release announcing the decision.

Pennsylvania Grand Jury Report On Catholic Dioceses Sex Abuse Is Released

As previously reported, last month the Pennsylvania Supreme Court ordered the public release (with certain redactions) of a 900-page grand jury report on allegations of child sexual abuse, failure to report abuse, and other acts endangering children by persons associated with 6 Pennsylvania Catholic dioceses.  The full text of the report was made public yesterday. Statements on the release of the report, or in anticipation of it, were issued by the Catholic dioceses of Allentown, Erie, Greensburg, Harrisburg, Pittsburgh, and Scranton. The Pittsburgh Post-Gazette reports on the statement by Pennsylvania's attorney general upon release of the document.

Pennsylvania Supreme Court Orders Release of Redacted Grand Jury Report On Clergy Sexual Abuse

In In re: Fortieth Statewide Investigating Grand Jury, (PA Sup. Ct., July 27, 2018), the Pennsylvania Supreme Court approved the public release (with certain redactions) of a 900-page grand jury report on allegations of child sexual abuse, failure to report abuse, and other acts endangering children by persons associated with 6 Pennsylvania Catholic dioceses.  The Grand Jury report, which lists over 300 clergy as predators, also covers possible obstruction of justice by Church officials, community leaders, and public officials.  However the court ordered that there be temporary redactions in the report as released to safeguard the reputations of individuals who have filed challenges to the report.  The court also called for oral argument on what due process mechanisms should be available to those individuals challenging the report's conclusions about them. According to the Philadelphia Inquirer:

The order by the seven-member high court provided a temporary victory for about two dozen current and former clergy members who have waged a furious legal fight to prevent their names from being publicly disclosed. The high court’s decision will allow them to remain unidentified for weeks, if not months, while the justices weigh their arguments.

3rd Circuit Refuses To Enjoin School's Accommodation of Transgender Students

In Doe v. Boyertown, (3d Cir., July 26, 2018), the U.S. 3d Circuit Court of Appeals in a revised panel decision refused to enjoin a Pennsylvania school district from allowing transgender students to use bathrooms and locker rooms consistent with their gender identities instead of  the sex they were assigned at birth. The court rejected privacy, Title IX and state tort claims, saying in part:

As we have already noted, we do not intend to minimize or ignore testimony suggesting that some of the appellants now avoid using the restrooms and reduce their water intake in order to reduce the number of times they need to use restrooms under the new policy. Nor do we discount the surprise the appellants reported feeling when in an intimate space with a student they understood was of the opposite biological sex. We cannot, however, equate the situation the appellants now face with the very drastic consequences that the transgender students must endure if the school were to ignore the latter’s needs and concerns. Moreover, as we have mentioned, those cisgender students who feel that they must try to limit trips to the restroom to avoid contact with transgender students can use the single-user bathrooms in the school.

Yesterday following the issuance of the revised panel decision, the full court denied an en banc rehearing in the case, with 3 judges dissenting from the denial. (Full text of order and dissent.) The dissenters argued:

The revised panel opinion rightly acknowledges that a school policy addressing transgender students’ use of bathrooms and locker rooms is a matter of high importance to Boyertown and its students. Given that public importance and the obvious sensitivity of the issues involved, one would have thought that the opinion would address only the facts at issue and then only to the extent necessary. But the panel went beyond what was necessary when it chose to address Boyertown’s tangential argument that the school district would have run afoul of Title IX had it implemented a policy that confined transgender students to use of bathrooms and locker rooms designated for their biological sex....

The Morning Call reports on the decisions.

3rd Circuit: Nuns Lose Pipeline Challenge On Procedural Grounds

In Adorers of the Blood of Christ v. Federal Energy Regulatory Commission, (3d Cir., July 25, 2018), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a RFRA challenge by an Order of Catholic nuns (the "Adorers") to FERC's approval of a pipeline project. The natural gas pipeline runs through land owned by the Adorers. Developers were authorized to acquire land for the pipeline by eminent domain.  According to the court:

The Adorers object to the use of their land as part of the Project, explaining that their deeply-held religious beliefs require that they care for the land in a manner that protects and preserves the Earth as God’s creation. But despite receiving notice of the proposed project, the Adorers never raised this objection before FERC.

The Natural Gas Act calls for appeals from FERC orders to be filed with the Court of Appeals. The Adorers failed to follow this procedural route. The court held:

The Adorers contend that the plain language of this judicial relief provision grants them a statutory right to assert their RFRA claim in district court. We disagree. The NGA is a detailed statute, setting forth specific provisions on the procedure by which approval and subsequent review of a pipeline project may be attained.

Lancaster Online reports on the decision.

Amish Get Remand For More Consideration of Religious Freedom Defenses In Permit Case

In Sugar Grove Township v. Byler, (PA Commnwlth. Ct., July 20, 2018), a 7-judge panel of the Pennsylvania Commonwealth Court remanded to the trial court a complaint against a member of the Old Order Amish who, it was contended, failed to obtain required permits under the Township's Privy Ordinance, and violated the Sewage Facilities Act and the Uniform Construction Code.  The trial court concluded that community safety concerns override religious objections. The appeals court said:

The trial court substantiates this conclusion by vaguely referencing testimony of an environmental hazard in the nature of high levels of E. coli bacteria being found in the area, without any explanation of how Appellant’s purported violations contributed to or exacerbated this hazard. Moreover, the trial court ignores additional protections provided by the Religious Freedom Protection Act....

The matter is remanded to the trial court to issue a new opinion considering the issue of the religious freedom protections of the First Amendment to the United States Constitution and Article I, section 3 of the Pennsylvania Constitution as well as the Religious Freedom Protection Act.

AP reports on the decision.

Suit Challenges Restriction On Farm's Use For Religious Activities

Yesterday's Sewickley Herald reports on a lawsuit filed in Pennsylvania federal district court on Wednesday by owners of an historic farm who are using their property to host Bible study, a worship night, religious retreats and fundraisers.  Last October, Sewickley Heights served a cease and desist order on the farm's owners, claiming that they need a zoning variance in order to host the religious activities.  The owners claim that the cease and desist order violates their rights under the First Amendment and RLUIPA.  Sewickley Heights is a small upscale residential community of estates built on rolling hills and meadows.

3rd Circuit Hears Oral Arguments In Minister's Breach of Contract Case

Last week, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Lee v. Sixth Mount Zion Baptist Church of Pittsburgh. (Audio of full oral arguments).  In the case, a Pennsylvania federal district court dismissed on ministerial exception and excessive entanglement grounds a breach of contract suit by the church's pastor who was fired without being compensated under the contract clause relating to termination without cause.  (See prior posting.) Trib Total Media reports on the oral arguments.

Court Rejects Challenges To Foster Care Agency Non-Discrimination Requirement

In Fulton v. City of Philadelphia, (ED PA, July 13, 2018), a Pennsylvania federal district court rejected Catholic Social Services challenges to the requirement that it not discriminate against same-sex couples in foster care placement.  CSS argued that the requirement violates the Free Exercise, Free Speech and Establishment Clauses of the 1st Amendment as well as Pennsylvania's Religious Freedom Act. The court refused to issue a preliminary injunction against enforcement of the requirement, saying in part:

CSS’s compliance with the terms of the Services Contract does not: constrain or inhibit CSS from conduct or expression mandated by its religious beliefs, curtail CSS’s ability to express adherence to CSS’s religious faith, deny CSS a reasonable opportunity to “provide foster care to children,” or compel CSS to engage in conduct or expression that violates a “specific tenet” of CSS’s religious faith....

CSS contends that the provision of certification services for same-sex couples would require CSS to express its religious approval of same-sex relationships in contravention of Catholic teaching about marriage. This is not the case. To illustrate this point, if, for example, CSS were to certify a couple where one spouse is previously divorced, CSS’s certification would not suggest that CSS approved of divorce as a religious matter.

Philadelphia Inquirer reports on the decision.

Bus Ad space Is Limited Forum, Allowing Rejection of Ads On Religious Matters

In Northeastern Pennsylvania Freethought Society v. County of Lackawanna Transit System, (MD PA, July 9, 2018), a Pennsylvania federal district court rejected a constitutional challenge to the policy that excluded controversial public issue advertising on Lackawanna buses. Among other things, the policy, in its latest version, excludes ads

that promote the existence or non-existence of a supreme deity, deities, being or  beings; that address, promote, criticize or attack a religion or religions, religious  beliefs or lack of religious beliefs; that directly quote or cite scriptures, religious text or texts involving religious beliefs or lack of religious beliefs; or are otherwise religious in nature.

The suit was brought by the Freethought Society after its proposed ad was rejected.  In ruling for the Transit Authority, the court held that: 

COLTS’ advertising space is a limited forum and  that COLTS did not violate Freethought’s First Amendment free speech rights when  it refused to display Freethought’s advertisements containing the word “atheists” on COLTS’ buses.

Scranton Times Tribune reports on the decision.

Another Religious College Gets Relief Against ACA Contraceptive Mandate Rules

Consistent with a number of other recent district court opinions, a Pennsylvania federal district court in Geneva College v. Azar, (WD PA, July 5, 2018), issued a permanent injunction against applying the Affordable Care Act contraceptive coverage mandate rules to Geneva College to the extent that the college has religious objections to compliance. The Trump Administration has conceded that applying the Obama Administration's accommodation rules to religious non-profits would violate the Religious Freedom Restoration Act.  ADF issued a press release announcing the decision.

Suit Challenges Non-Disclosure Agreements In Priest Abuse Settlements

AP reported yesterday on a lawsuit filed in a Pennsylvania state trial court by four women (related as sisters) against the Catholic Diocese of Harrisburg.  The suit seeks to invalidate two confidentiality agreements entered in 1994 and 1995 in settling suits alleging that a parish priest, Rev. Augustine Michael Giella, abused two of the women when they were young girls.  The agreements apply to all family members. The Diocese says it no longer enforces confidentiality agreements stemming from pries abuse settlements, but plaintiffs' lawyer says they want this in writing before the women speak out.

Pennsylvania Supreme Court Prevents Release of Grand Jury Report On Clergy Sex Abuse

Yesterday the Pennsylvania Supreme Court issued a brief 2-paragraph Order (full text) barring release of an extensive Grand Jury report detailing sexual abuse and misconduct by priests in six Pennsylvania Catholic dioceses. The report, stemming from two years of testimony before a Cambria County grand jury, was expected to be made public shortly. According to the Morning Call, the six dioceses involved have pledged not to file legal challenges to prevent release of the report.  It is unclear who filed objections with the Supreme Court. Its Order indicates that more than one application seeking to prevent release were filed.

Catholic Social Services Sues Philadelphia Over End To Foster Care Referrals

A suit was filed in a Pennsylvania federal district court this week by Philadelphia Catholic Social Services and two of its clients challenging action taken by the city of Philadelphia to stop foster care referrals to the agency.  The city took the action because of CSS's policy against placing foster children with same-sex couples.  The complaint (full text) in Fulton v. City of Philadelphia, (ED PA, filed 5/16/2018), alleges in part:

Catholic Social Services remains willing and able to continue its ministry serving children in Philadelphia. It wants to help alleviate the foster care crisis in Philadelphia, and it has not and will not prevent any qualified family from becoming a foster parent, be it through Catholic Social Services or a referral to another agency. But because of the City’s actions, Catholic Social Services is unable to place foster children with families. Its 100-year-old ministry to at-risk children is in jeopardy.

The complaint alleges violation of Pennsylvania's Religious Freedom Protection Act, the 1st and 14th Amendments. Pennsylvania constitutional provisions, the Philadelphia city charter and breach of contract. Becket Fund issued a press release announcing the filing of the lawsuit.

Islamic School Consultant Files Religious Freedom Lawsuit Over Impediments To Its Purchase of Property

WFJM News reported yesterday on a federal court lawsuit filed last month by a consulting firm for Islamic schools over impediments placed in its way as it attempted to purchase a now-vacant 150 acre site in Shenango Township, Pennsylvania from the state.  The property, containing 13 building, was formerly used to provide rehabilitative services and housing for juvenile offenders.  Plaintiff intended to use the site in part for a youth intervention center and partly for an Islamic boarding school.  The complaint (full text) in HIRA Educational Services of North America v. Augustine, (WD PA, filed 4/13/2018), alleges that local residents were unhappy that the property was being sold to an Islamic institution.  At a community meeting, a representative of an advocacy organization opposing the sale falsely claimed that the property would be used as a center for thousands of refugees. State and local officials took a variety of elaborate steps to block the sale, making it impossible for the purchaser to obtain financing for the property. The lawsuit contends that actions by officials to prevent the purchase imposed a substantial burden on religous exercise in violation of RLUIPA, the Pennsylvania Religious Freedom Protection Act and federal civil rights laws.

Faith Healing Parents Convicted In Daughter's Death

AP reports that in Reading, Pennsylvania, Jonathan and Grace Foster were convicted of involuntary manslaughter and child endangerment in the death of their 2-year old daughter.  The Fosters are members of Faith Tabernacle Congregation which teaches that doctors and pharmaceuticals should be avoided.  Their daughter died of pneumonia after the couple failed to seek medical treatment for the girl whose cold symptoms turned severe.

Nuns Argue RFRA Claim As To Pipeline Before 3rd Circuit

On Friday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Adorers of the Blood of  Christ v. FERC.  In the case, a Pennsylvania federal district court dismissed for lack of jurisdiction a RFRA challenge by a Catholic order of nuns to the construction and operation of the Atlantic Sunrise gas pipeline through land owned by the order. (See prior posting.)  At issue is whether the nuns should have used procedures set out in the Natural Gas Act to raise their objections. NPR reports on the oral arguments.