Justice Department Sides With Wedding Photographer In District Court Case

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville's public accommodation ordinance against her. Plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny....

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive.... By ... compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

... That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny....  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

Court Refuses To Order Church Membership Meeting

In Ceglar v. Christ's Harbor Church, (TX App., Feb. 27, 2020), a Texas state appellate court dismissed on ecclesiastical abstention grounds a suit brought by some 25 church members seeking a court order forcing the Church Elders to call a membership meeting.  Two female members of the Church charged its newly-hired senior pastor with inappropriate behavior. Plaintiffs wanted the membership meeting to decide whether the pastor should be disciplined or fired. Under the Church's bylaws, calling a special meeting requires a petition signed by 15% of the Church's members. The court concluded that, given the criteria for Church membership set out in the by-laws, the court cannot determine who is a member without delving into doctrinal matters.

Suit Challenges South Carolina's Anti-LGBTQ Curriculum Law

Three advocacy organizations filed suit yesterday in a South Carolina federal district court challenging the constitutionality of S.C. Code §59-32-30(A)(5) which prohibits public school sex education programs from discussing "alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of ... sexually transmitted diseases." The complaint (full text) in Gender and Sexuality Alliance v. Spearman, (D SC, filed 2/26/2020)contends that the law violates the equal protection clause, saying in part:

The Anti-LGBTQ Curriculum Law harms LGBTQ students. It stigmatizes them by creating a state-sanctioned climate of discrimination in schools and denies LGBTQ students health education opportunities equal to those of their heterosexual peers.

WCSC reports on the lawsuit.

Trump Praises Modi's Efforts On Religious Freedom In India

At his press conference (full text) in New Delhi, India yesterday, President Donald Trump responded to a question about religious freedom in India:

Q    While you’ve been here in the country, in the capital, the northeast part of Delhi, there have been violent clashes.  Police have been killed, some demonstrators.  Nine deaths so far, we hear, and about 100-plus injured.  What did Prime Minister Modi say to you about this amended citizenship law?  And how concerned are you about this kind of religious violence in India?

THE PRESIDENT:  So, we did talk about religious freedom.  And I will say that the Prime Minister was incredible on what he told me.  He wants people to have religious freedom, and very strongly.  And he said that in India they have — they have worked very hard to have great and open religious freedom.  And if you look back and look at what’s going on, relative to other places especially, but they have really worked hard on religious freedom.

I asked that question in front of a very large group of people today.  And he talked about it; we talked about it for a long time.  And I really believe that’s what he wants.

As far as the individual attack, I heard about it but I didn’t discuss that with him.  That’s up to India.

The Hill reports on these remarks.

Religious Discrimination Suit Dismissed As Moot

In Fiedor v. Florida Department of Financial Services, (ND FL, Feb. 24, 2020), a Florida federal district court dismissed a state government employee's lawsuit alleging religious discrimination.  The court describes the facts of the case:

This case arises from a state agency’s regional manager’s mistaken view that agency policy prohibited employees from discussing religion at work or posting church-related materials on an office bulletin board. After the mistake came to light as a result of this lawsuit, the agency issued an unequivocal correction.  Employees of the regional office now may discuss religion and post church-related materials on the bulletin board. Following a bench trial, this opinion holds moot the plaintiff employee’s challenge to the manager’s now-abandoned position.

2nd Circuit: Chinese Christian Convert Does Not Have Reasonable Fear of Persecution Upon Deportation

In Wang v. Barr, (2d Cir., Feb. 24, 2020), the U.S. 2nd Circuit Court of Appeals upheld the denial of asylum to a Chinese citizen who had converted to Christianity. It held that she failed to prove a well-founded fear of future persecution. The court said in part:

Wang argues that there is a reasonable possibility that the Chinese government will become aware of her religious practice because she intends to attend an underground church, and that there is a reasonable possibility that she will be persecuted as a result because the government has a pattern or practice of persecuting similarly situated Christians. ....

The State Department’s 2015 International Religious Freedom Report states that there are approximately 45 million Christians practicing in unregistered churches in China and that authorities in some areas of the country allow unregistered churches to hold services “provided they remained small in scale,” although authorities in other areas target and close such churches.... The news reports in the record concern abuses against people who are not similarly situated to Wang—who testified that she would attend services at an unregistered church, but not that she would take a leadership role, proselytize, or engage in other activism—or concern areas of China other than Wang’s native Fujian province.

9th Circuit Upholds HHS Family Planning Grant Rules

In a 7-4 en banc decision yesterday, the U.S. 9th Circuit Court of Appeals upheld the Trump Administration's rules that apply to recipients of family planning grants under Title X. In State of California v. Azar, (9th Cir., Feb. 24, 2020),  the majority in an 82-page opinion vacated injunctions that had been entered by three district courts.  The court described the major provisions of the challenged rules:

While referrals for abortion as a method of family planning are not allowed, the Title X project may give a pregnant client a “list of licensed, qualified, comprehensive primary health care providers,” which may include “providers of prenatal care[], some, but not the majority, of which also provide abortion as part of their comprehensive health care services.” .... The Title X project may also provide referrals for abortion when such a procedure is medically necessary....

... [T]he Final Rule ... requires that a Title X project be organized “so that it is physically and financially separate . . . from activities that are prohibited under section 1008 of the Public Health Service Act..... [in order to avoid] the appearance and perception that Title X funds being used in a given program may also be supporting that program’s abortion activities.... 

The dissenters argued that the HHS rules violate Congressional mandates, saying in part:

The majority would return us to an older world, one in which a government bureaucrat could restrict a medical professional from informing a patient of the full range of health care options available to her. Fortunately, Congress has ensured such federal intrusion is no longer the law of the land.

ABC News reports on the decision.

Supreme Court Denies Cert. In Title VII Religious Accommodation Case

The U.S. Supreme Court today denied review in Patterson v. Walgreen Co., (Docket No. 18-349. certiorari denied 2/24/2020). In the case, the U.S. 11th Circuit Court of Appeals, in a suit alleging religious discrimination and retaliation, held that Walgreen had offered reasonable accommodations for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. (See prior posting). In a concurring opinion (full text) accompanying the denial of cert, Justice Alito, joined by Justices Thomas and Gorsuch, said that in an appropriate case the Court should reconsider its holding in the Hardison case that an employer need accommodate an employee's religious observance only if it imposes no more than a de minimis hardship on the employer. They concluded however that "this case does not present a good vehicle for revisiting Hardison."

Supreme Court GVRs Puerto Rico Decision On Pension Liability of Catholic Church

Th U.S. Supreme Court today issued opinions granting certiorari, vacating the judgment of the Puerto Rico Supreme Court and remanding for further proceedings the case of Roman Catholic Archdiocese of San Juan v. Feliciano, (US Sup. Ct., Feb. 24, 2020). At issue was whether the Roman Catholic and Apostolic Church in Puerto Rico was liable for pension benefits of Catholic School employees in Puerto Rico.  The petition for certiorari argued that civil courts must respect the Church's own views on its internal structure. The Supreme Court in a per curiam opinion concluded, however, that it need not reach that issue because Puerto Rican courts lost jurisdiction over the case when it was removed to federal court and had not yet been remanded. Justice Alito, joined by Justice Thomas, wrote to note important issues that may arise on remand. They said in part:

[T]he Free Exercise Clause of the First Amendment at a minimum demands that all jurisdictions use neutral rules in determining whether particular entities that are associated in some way with a religious body may be held responsible for debts incurred by other associated entities....

Beyond this lurk more difficult questions, including (1) the degree to which the First Amendment permits civil authorities to question a religious body’s own understanding of its structure and the relationship between associated entities and (2) whether, and if so to what degree, the First Amendment places limits on rules on civil liability that seriously threaten the right of Americans to the free exercise of religion as members of a religious body.

Supreme Court Grants Review Of City's Refusal To Contract With Catholic Social Services

The U.S. Supreme Court today granted review in Fulton v. City of Philadelphia, (Docket No. 19-323, certiorari granted 2/24/2020) (Order List). The case will be argued next term. In the case, the U.S. 3rd Circuit Court of Appeals upheld held against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.)  Links to filings with the Supreme Court in the case are available from SCOTUSblog's case page.

European Court Finds That Azerbaijan Violated Rights of Jehovah's Witnesses

On February 20, 2020, the European Court of Human Right issued two chamber judgments finding violation of religious freedom rights by Azerbaijan. In Nasirov and Others v. Azerbaijan (application no. 58717/10), the court held that the detention of several Jehovah’s Witnesses for door to-door preaching and distribution of literature violated their rights to freedom of religion (Art. 9) and liberty of person (Art. 5) under the European Convention on Human Rights.

In Religious Community of Jehovah’s Witnesses v. Azerbaijan (no. 52884/09), the Court concluded that Azerbaijan's ban on the importation of specified religious books violated Jehovah's Witnesses freedom of expression under the European Convention on Human Rights (Art. 10) considered in connection with their right to freedom of religion (Art. 9), saying in part:

Cases which involve prior restraint call for special scrutiny by the Court.

Azerbaijan had argued that the three titles in question contained disparaging remarks about the Christian and Jewish communities, contending:

[T]he books in question implied religious superiority and incited religious discord and could therefore damage the peaceful coexistence of several religious communities in a multireligious society...

The court concluded however that Azerbaijani courts "did not carry out careful balancing exercise in conformity with the criteria laid down in its case-law and did not provide “relevant and sufficient” reasons for the interference."

Recent Articles of Interest

From SSRN:

• Phil Lord, Case Comment: Garcia v Church of Scientology Flag Service Organization, (86:2 Arbitration __ (Forthcoming)).
• Richard H. Weisberg, Binaries: Remarks on Chaim N. Saiman's 'Halakhah', (Villanova Law Review, Vol. 64, No. 5, 2019).
• Micah Schwartzman & Nelson Tebbe, Establishment Clause Appeasement, (Virginia Public Law and Legal Theory Research Paper No. 2020-17 (2020)).
• Sahar F. Aziz, The Social Construction of the Racial Muslim, (Rethinking Orientalism (ed. Tamara Sonn) (Oxford University Press), Forthcoming).
• Melissa Were, The Right to Emergency Medical Treatment in the Context of Abortion in Kenya, (October 2019).
• Kaiponanea T. Matsumura, The Integrity of Marriage, (William & Mary Law Review, Vol. 61, No. 2, 2019).

New Chinese Regulations For Religious Groups Took Effect This Month

A Fact Sheet issued last week by the U.S. Commission on International Religious Freedom summarizes China's 2019 Administrative Measures for Religious Groups which became effective on February 1, 2020. Bitter Winter magazine provides a full translation of the Measures. Among the provisions are the following:

Religious organizations must support the leadership of the Communist Party of China, abide by the Constitution, laws, regulations, rules and policies, adhere to the principles of self-support and self-governance, adhere to the direction of Sinicization of religions in China, embody the core values ​​of socialism, and maintain national unity, ethnic unity, religious harmony and social stability.

... Religious organizations shall accept professional guidance and supervision by the religious affairs department of the people’s government.

No 1st Amendment Violation In Requiring Parolee To Live At Christian Homeless Shelter

In Janny v. Gamez, (D CO, Feb. 21, 2020), a Colorado federal district court dismissed an inmate's First Amendment challenge to his arrest for parole violations. Mark Janny's parole officer directed him to stay at a Christian homeless shelter in order to meet the parole requirement that he establish a residence of record. Janny was expelled from the shelter's program when he refused to attend chapel religious services. The court held that plaintiff's Establishment Clause rights were not infringed because there was a secular purpose for the homeless shelter requirement. The court also accepted defendant's qualified immunity defense to an assertion of free exercise violations, saying that it was not clearly established that a parole officer violates a parolee’s rights by requiring him to reside at a facility that provides religious programming.

Swiss Court Says Company's Logo Is Not Offensive To Christians

Swiss Info reports that Switzerland's Federal Administrative Court has ruled against the Swiss Federal Institute of Intellectual Property's attempt to prevent the company Jägermeister from expanding the use of its logo (a stag with a glowing cross between it antlers) beyond liquor and clothing items. The Institute argued that the logo was offensive to the religious views of some consumers. According to Swiss Info:

The court ... said ...: although the story behind the logo indeed stems from an old Christian tale, today the average consumer associates it clearly with the Jägermeister liqueur rather than revelation....

For the Swiss federal judges, ... the “intensive” use of the image by Jägermeister had “weakened its religious character” over time, and nobody was likely to be offended. 

The company is thus free to use it for all promotional activities and products in Switzerland including cosmetics, mobile phones, or telecommunications services.

[Thanks to Tom Rutledge for the lead.]

DOJ Sues Nebraska Village For Refusing Building Permits To Church

The Justice Department announced yesterday that it has filed suit in a Nebraska federal district court against the village of Walthill, Nebraska alleging violations of the "substantial burden" and "equal terms" provisions of the Religious Land Use and Institutionalized Persons Act.  The complaint (full text) in United States v. Village of Walthill, Nebraska, (D NE, filed 2/20/2020), alleges in part:

This civil action is based on the Village’s unlawful refusal to allow Light of the World Gospel Ministries, Inc...., a non-denominational Christian church, to construct a new place of worship on property it owns in a commercial (“C-1”) district of the Village by denying the Church necessary permits. 

... Since 2007, LOTW has operated religious services out of a small, 1,250 sq. ft. building ... on another lot in the C-1 district. The space is no longer adequate to serve its religious needs, and the unstable condition of a dilapidated building next to the church on the property made the space unsafe. The Village refused to permit LOTW to build its noncommercial religious property in the C-1 district, but has permitted noncommercial nonreligious entities to construct buildings in the C-1 district during the same time period.

Court Says Student Evangelists May Preach In Chicago's Millennium Park

In Swart v. City of Chicago, (ND IL, Feb. 20. 2020), an Illinois federal district court granted a preliminary injunction to four Wheaton College students who were part of an outreach ministry to prevent the city of Chicago from enforcing its regulations limiting speech and handbilling activities in the downtown Millennium Park. The court held that the park is a traditional public forum, that the regulations, as enforced, are not content neutral and unconstitutionally vague.  The court also granted a preliminary injunction to intervenors who engage in other kinds of speech activities in the park. Chicago Sun Times reports on the decision.

Jewish School Sues Town For Religious Discrimination

A religious discrimination suit was filed in a New York federal district court this week by an Orthodox Jewish girl's school against the Town of Clarkstown, New York charging it with wrongfully preventing the school from purchasing a Baptist Church property.  The complaint (full text) in Ateres Bais Yaakov Academy of Rockland v. Town of Clarkston, (SDNY, filed 2/18/2020), alleges in part:

In early January 2019, in reaction to ABY’s pending permit application following its entry into a contract for the purchase of the Property, Clarkstown Supervisor George Hoehmann, other Clarkstown officials and members of a Rockland County political party, members of CUPON, and CUPON’s counsel met to concoct a plan to prevent ABY’s purchase of the Property.

... In parallel to the manufactured public pressure from CUPON, the Town denied ABY’s permit application through a blatant misapplication of its zoning laws....

Following its knowing interference with and evisceration of ABY’s contract topurchase the  Property and months of delay, the Town purchased the Property for itself. For the Town, this is but the latest example in a demonstrable pattern of wreaking havoc on religious property applicants to prevent their engagement in the Clarkstown community. 

Lower Hudson News reports on the lawsuit.

Harrisburg Catholic Diocese Files For Bankruptcy Reorganization

Yesterday, the Catholic Diocese of Harrisburg (PA) filed for bankruptcy reorganization in federal bankruptcy court. In announcing the move, Bishop Robert Gainer said in part:

Over the past few years, our Diocese has been forced to confront our horrific past regarding clergy sexual abuse. Today, we are facing some difficult financial realities. Despite making every attempt to scale back operations and reduce overhead, we are currently unable to meet our financial obligations.

... Our current financial situation, coupled with changes in the law both here and in New Jersey, where we are already named in one lawsuit and where we anticipate more to follow, left us with no other path forward to ensure the future of our Diocese. Despite the success of the Survivor Compensation Program, which helped 111 survivors of clergy child sexual abuse, or 96% of those who participated in the Program, we already are in receipt of half a dozen new lawsuits, any one of which could severely cripple the Diocese.

As Bishop, I must ensure the Diocese’s core mission is upheld, which is to remain focused on Christ’s mandate to preach, teach, sanctify, and to serve those in need. We must work to bring the Chapter 11 process to a conclusion, as soon as is reasonably possible and in a way that allows us to be present to the community, as we have been for the past 152 years.

Links to all the pleadings and other documents in the case are available here.  Reporting on the filling, AP says that the diocese joins at least 20 others across the country that have filed for bankruptcy. The diocese says it has assets of less than $10 million with liabilities between $50 and $100 million.

Parents Sue School District Over Its Transgender Policy

A group of parent filed suit this week against the Madison, Wisconsin school district challenging the district's policy on transgender students.  The complaint (full text) in Doe I v. Madison Metropolitan School District, (WI Cir. Ct., filed 2/18/2020) contends that the district's policy violates state constitutional provisions protecting parental rights and their free exercise of religion. The complaint describes the district's policy as follows:

The policy enables children, of any age, to socially transition to a different gender identity at school without parental notice or consent, requires all teachers to enable this transition, and then prohibits teachers from communicating with parents about this potentially life-altering choice without the child’s consent. Even more, the Madison School District directs its teachers and staff to deceive parents by reverting to the child’s birth name and corresponding pronouns whenever the child’s parents are nearby.

The complaint goes on to allege:

As a direct result of their religious beliefs, if these Plaintiffs’ children ever experience gender dysphoria, they would not i mmediately “affirm” whatever beliefs their children might have about their gender, but would instead remind them that they were “fearfully and wonderfully made,” see Psalm 139:14, and seek to help them identify and address the underlying causes of the dysphoria and learn to accept and embrace their God-given sex.

... At the same time, Plaintiffs w ill never stop loving their children, or love them any less, no matter what they believe about their gender.

LGBTQ Nation reports on the lawsuit.