Annual AALS Law & Religion Bibliography Issued

The Association of American Law Schools Section on Law & Religion has released its 2020 Newsletter which includes a 23-page bibliography of books and articles.

Review Denied In Challenge To Nevada's Limit on Worship Services

The U.S. Supreme Court today denied a petition for certiorari before judgment in Calvary Chapel Dayton Valley v. Sisolak, (Docket No. 20-639, cert. denied 1/25/2021). (Order List.) At issue is the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order limiting indoor worship services to no more than 50 people with social distancing. The SCOTUSblog case page has links to all the pleadings in the case. The Supreme Court previously refused to enjoin enforcement of the Order pending appeal. (See prior posting.)

Supreme Court Dismisses and Vacates Judgment Below In Temporary Texas Abortion Ban Controversy

The U.S. Supreme Court today granted certiorari in Planned Parenthood v. Abbott, (Docket No. 20-305, Jan. 25, 2021) (Order List), summarily vacated the judgment below and remanded the case to the 5th Circuit with instructions to dismiss the case as moot. The case began as a challenge to Texas Gov. Greg Abbott's order temporarily barring most elective abortions during the COVID-19 crisis. Subsequently the Governor permitted abortion services to resume. At issue in the case now was whether the Supreme Court would vacate the Court of Appeals judgments below so that they would no longer serve as precedent in other cases. (See petition for certiorari.) The SCOTUSblog case page has links to all the pleadings in the case.

1st Circuit Again Upholds Boston's Refusal To Fly Christian Flag From City Hall Flagpole

In Shurtleff v. City of Boston, (1st Cir., Jan. 22, 2021), the U.S. 1st Circuit Court of Appeals, in a case coming before it for a second time, again upheld the city of Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. The court said in part:

Because the City engages in government speech when it raises a third-party flag on the third flagpole at City Hall, that speech is not circumscribed by the Free Speech Clause....  The City is therefore "entitled" to "select the views that it wants to express."...

The court also rejected plaintiffs' Establishment Clause claim, saying in part:

The exclusion of religious entities from a public  program, without more, does not violate the Establishment Clause. See Carson ex rel. O.C. v. Makin, 979 F.3d 21, 49 (1st Cir. 2020). Nor is proof of such exclusion evidence of hostility towards religion....

We add, moreover, that while the Establishment Clause may not require a secular-flag policy, the City "may act upon [its] legitimate concerns about excessive entanglement with religion" in administering its flag-raising program....

Our government-speech finding bolsters the conclusion that the City would be perceived to endorse the messages conveyed by the flags that it flies.

Jewish Organization Fails To Prove Violations In Denial of Its Use of Free After-School Space

In Chabad Chayil, Inc. v. School Board of Miami-Dade County Florida, (SD FL, Jan. 22, 2021), a Florida federal district court dismissed claims by a Jewish non-profit organization that the Miami-Dade County School Board and the County's Office of Inspector General (OIG) violated its 1st and 14th Amendment rights when it took away its rent free use of school facilities for after-school programs. The OIG, after investigating an anonymous complaint, claimed that Chabad Chayil violated various regulations in applying for rent-free use and in operating its program. The court concluded that Chabad Chayil had failed to show that its claims met the requirements for liability under 42 USC §1983. It "failed to allege facts showing that any School Board official or staff member was a final policymaker with respect to the decisions or actions that Chabad Chayil maintains were unconstitutional...." It failed to show a OIG custom or policy that would make it liable for free exercise violations. Chabad Chayil also failed to prove equal protection or due process violations.

9th Circuit Upholds California's Temporary Ban On Indoor Worship Services

 In South Bay United Pentecostal Church v. Newsom, (9th Cir., Jan. 22, 2021), the U.S. 9th Circuit court of Appeals affirmed a California federal district court's denial of a preliminary injunction to a church that objects to the state's COVID-19 ban on indoor religious services. The court describes the current restrictions:

California permits unlimited attendance at outdoor worship services and deems clergy and faith-based streaming services “essential,” but has temporarily halted all congregate indoor activities, including indoor religious services, within portions of the state currently identified by objective measures as being at high risk....

South Bay argues that the current restrictions on indoor services prohibit congregants’ Free Exercise of their theology, which requires gathering indoors.

In upholding the state's requirement, the court said in part:

Notably, in response to the State’s mountain of scientific evidence, South Bay has not pointed to anything in the record to support the notion that the lesser restriction that it seeks—100% occupancy with a reliance solely on mask-wearing, social distancing, and sanitation measures—would be effective to meet California’s compelling interest in controlling community spread. South Bay’s self-serving assertion that it has experienced no incidence of the virus among its worshipers is entirely anecdotal and undermined by evidence of outbreaks in similarly situated places of worship.

The court concluded, however, that 100- and 200-person caps for later stages of recovery are unconstitutional "because California has imposed different capacity restrictions on religious services relative to non-religious activities and sectors."

Recent Articles of Interest

 From SSRN:

• Craig Westergard, Haply a Minority's Voice May Do Some Good: Diversity at the United States Supreme Court, (29 Journal of Judicial Administration 174, 2020).
• Thomas Mohr, Religious Minorities and the Constitution of the Irish Free State, 1922-1937, (UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 1/2021).
• Sohail Wahedi, American Muslims: The Untouchables of American Constitutional Democracy?, (Idaho Law Review, Vol. 56, 2020, pp. 305-321).
• Alan Edward Brownstein & Thomas Charles Berg, Giving Our Better Angels a Chance: A Dialogue on Religious Liberty and Equality, (Journal of Appellate Practice and Process, volume 21, issue 2 (forthcoming)).
• Matthew Stevens, Centralism, Civil Rights, and Witchcraft,  (November 15, 2020).
• Michael Ramsden, Accountability for Crimes Against the Rohingya: Strategic Litigation in the International Court of Justice, (The Chinese University of Hong Kong Faculty of Law Research Paper Forthcoming).

Suit Challenges DOE's Conditioning of Federal Grants To Colleges On Free Exercise For Student Religious Groups

Suit was filed earlier this week in the D.C. federal district court challenging recent changes to Department of Education rules (see prior posting) on protection of free speech and religious freedom by colleges and universities receiving federal grants. The complaint (full text) in Secular Student Alliance v. U.S. Department of Education, (D DC, filed 1/19/2021) challenges this addition to DOE rules:

As a material condition of the Department’s grant, each State or subgrantee that is a public institution shall not deny to any student organization whose stated mission is religious in nature and that is at the public institution any right, benefit, or privilege that is otherwise afforded to other student organizations at the public institution (including but not limited to full access to the facilities of the public institution, distribution of student fee funds, and official recognition of the student organization by the public institution) because of the religious student organization’s beliefs, practices, policies, speech, membership standards, or leadership standards, which are informed by sincerely held religious beliefs.

The complaint contends:

Under the guise of enforcing the First Amendment, the Rule bars public colleges and universities from requiring religious student organizations to comply with nondiscrimination requirements, including university rules and state laws specifying that university-recognized, university-funded student organizations may not bar students from club membership or leadership on the basis of characteristics such as race, religion, sex, sexual orientation, gender identity, disability status, or status as a veteran.

American Atheists issued a press release announcing the filing of the lawsuit.

Biden Issues Executive Order Calling For Agency Rules To Protect Against LGBTQ Discrimination

On Wednesday, President Biden issued an Executive Order (full text) calling on all federal agencies that administer statutes barring sex discrimination to review any of their regulations that do not assure that this protection extends to discrimination on the basis of gender identity and sexual orientation. The Executive Order begins with a broad policy statement:

Every person should be treated with respect and dignity and should be able to live without fear, no matter who they are or whom they love.  Children should be able to learn without worrying about whether they will be denied access to the restroom, the locker room, or school sports.  Adults should be able to earn a living and pursue a vocation knowing that they will not be fired, demoted, or mistreated because of whom they go home to or because how they dress does not conform to sex-based stereotypes.  People should be able to access healthcare and secure a roof over their heads without being subjected to sex discrimination.  All persons should receive equal treatment under the law, no matter their gender identity or sexual orientation.

It also takes the position that the Supreme Court's recent Title VII Bostock decision applies equally to the sex discrimination bans in Title IX of the Education Amendments of 1972, the Fair Housing Act and the Immigration and Nationality Act. NBC News reports on the Executive Order.

Biden-Harris Statement on Anniversary of Roe v. Wade

 This morning the White House issued a Statement from President Biden and Vice President Harris on the 48th Anniversary of Roe v. Wade (full text) which reads:

Today marks the 48th anniversary of the U.S. Supreme Court’s landmark ruling in Roe v. Wade.  

In the past four years, reproductive health, including the right to choose, has been under relentless and extreme attack.  We are deeply committed to making sure everyone has access to care – including reproductive health care – regardless of income, race, zip code, health insurance status, or immigration status. 

The Biden-Harris Administration is committed to codifying Roe v. Wade and appointing judges that respect foundational precedents like Roe.  We are also committed to ensuring that we work to eliminate maternal and infant health disparities, increase access to contraception, and support families economically so that all parents can raise their families with dignity.  This commitment extends to our critical work on health outcomes around the world. 

As the Biden-Harris Administration begins in this critical moment, now is the time to rededicate ourselves to ensuring that all individuals have access to the health care they need.

U.S. Catholic Bishops Call For Biden To Change His Policies On Abortion Rights

The head of the U.S. Conference of Catholic Bishops, Archbishop José H. Gomez, released a lengthy statement (full text) on Wednesday as Joe Biden was inaugurated as U.S. President. The statement particularly focuses on Biden's stance on abortion, saying in part:

I look forward to working with President Biden and his administration, and the new Congress....

Working with President Biden will be unique, however, as he is our first president in 60 years to profess the Catholic faith.... [I]t will be refreshing to engage with a President who clearly understands, in a deep and personal way, the importance of religious faith and institutions. Mr. Biden’s piety and personal story, his moving witness to how his faith has brought him solace in times of darkness and tragedy, his longstanding commitment to the Gospel’s priority for the poor — all of this I find hopeful and inspiring.

At the same time, as pastors, the nation’s bishops are given the duty of proclaiming the Gospel in all its truth and power, in season and out of season, even when that teaching is inconvenient or when the Gospel’s truths run contrary to the directions of the wider society and culture. So, I must point out that our new President has pledged to pursue certain policies that would advance moral evils and threaten human life and dignity, most seriously in the areas of abortion, contraception, marriage, and gender. Of deep concern is the liberty of the Church and the freedom of believers to live according to their consciences....

For the nation’s bishops, the continued injustice of abortion remains the “preeminent priority.”...

Rather than impose further expansions of abortion and contraception, as he has promised, I am hopeful that the new President and his administration will work with the Church and others of good will.... My hope is that we can begin a dialogue to address the complicated cultural and economic factors that are driving abortion and discouraging families.

Pakistani Agency Threatens U.S. Website Owners With Sanctions Because of Ahmadi Content

 AP reported yesterday that Pakistan’s Telecommunication Authority earlier this month ordered two American men to shut down their U.S.-based website Trueislam.com. According to AP:

The legal notice accuses Zafar and Khan, a lawyer, of violating Pakistani laws for hosting and disseminating content on their website related to members the Ahmadi community who are “not allowed to preach or propagate their faith or invite others to accept their faith."

The notice also threatened a fine of $3.1 million as well as charges under Pakistan's controversial blasphemy law. As explained by AP:

Pakistan’s parliament declared Ahmadis non-Muslims in 1974. Since then, they have repeatedly been targeted by Islamic extremists in the Muslim-majority nation. An Ahmadi can get 10 years in prison for claiming to be a Muslim.

5th Circuit En Banc Hears Oral Arguments On Texas Abortion Restrictions

Yesterday the U.S. 5th Circuit Court of Appeals sitting en banc heard oral arguments in Whole Women's Health v. Paxton. (Audio of full oral arguments). The full court is rehearing the case after a 3-judge panel last October by a 2-1 vote (full text of panel majority decision) held unconstitutional a Texas statute that requires women to undergo a medically unnecessary procedure to cause fetal demise before obtaining a dilation and evacuation (D&E) abortion. Courthouse News Service reports on the oral arguments.

Expanded Contraceptive Mandate Exemptions Again Upheld

Last July in Little Sisters of the Poor v. Pennsylvania, the U.S. Supreme Court rejected two kinds of challenges to the Trump Administration's expanded conscience exemptions from the Affordable Care Act's contraceptive coverage mandate. the Court held that the relevant federal departments had authority to promulgate the rules, and that the procedural process used to adopt the rules was valid. The case was remanded for consideration of any other issues. (See prior posting.) Now in Commonwealth of Massachusetts v. U.S. Department of Health and Human Services, (D MA, Jan. 15, 2021), a Massachusetts federal district court on remand held that the expanded exemptions are not arbitrary and capricious, and do not violate either the Establishment Clause or the Equal Protection guarantee of the 5th Amendment. In rejecting the Establishment Clause challenge, the court said in part:

Permitting entities to practice their beliefs as they would in the absence of the relevant government-imposed regulations does not, in this instance, rise to an unconstitutional violation of the Establishment Clause.

Suit Challenges Trump Administration's Loosening of Limits On Faith-Based Federally Funded Programs

Suit was filed this week in a New York federal district court by seven advocacy groups challenging the Trump Administration's loosening of restrictions on faith-based organizations' operation of programs and activities funded by federal grants. The complaint (full text) in MAZON: A Jewish Response to Hunger v. Azar, (SD NY, filed 1/19/2021) alleges in part:

Because the Agencies provide no reasonable justification for the rule change, because they fail to account for the harms caused by the 2020 Rule, because their reasoning is inconsistent and contrary to the record, and because they fail to consider obvious alternatives, the 2020 Rule is arbitrary and capricious in violation of the APA.

The complaint explains the challenged rule as follows:

The 2020 Rule eliminates the common-sense and agreed-upon requirements from the 2016 Rule, such as that beneficiaries receiving services from a faith-based provider receive a notice of their rights not to be discriminated against based on religion and the option to request a referral to an alternate provider. These requirements imposed virtually no burden, but provided beneficiaries with much-needed information empowering them to protect their own religious liberty.

The 2016 rule reflected a consensus proposal of a number of different interest groups. American Atheists issued a press release announcing the filing of the lawsuit.

Biden Ends Trump Administration's "Muslim-Bans"

President Joe Biden yesterday issued a Proclamation (full text) revoking the Trump administration's controversial travel bans that mainly impacted Muslim countries. The Proclamation reads in part:

The United States was built on a foundation of religious freedom and tolerance, a principle enshrined in the United States Constitution.  Nevertheless, the previous administration enacted a number of Executive Orders and Presidential Proclamations that prevented certain individuals from entering the United States — first from primarily Muslim countries, and later, from largely African countries.  Those actions are a stain on our national conscience and are inconsistent with our long history of welcoming people of all faiths and no faith at all....

Make no mistake, where there are threats to our Nation, we will address them.  Where there are opportunities to strengthen information-sharing with partners, we will pursue them.  And when visa applicants request entry to the United States, we will apply a rigorous, individualized vetting system.  But we will not turn our backs on our values with discriminatory bans on entry into the United States.

Transgender Health Care Mandate Violates RFRA Rights of Catholic Entities

In Religious Sisters of Mercy v. Azar, (D ND, Jan. 19, 2021), a North Dakota federal district court in a 57-page opinion, granted a number of Catholic-affiliated health care and health insurance entities, and several Catholic employers, an injunction barring enforcement against them of transgender anti-discrimination rules that require them to provide or provide insurance coverage for transgender transition procedures. The court concluded that the anti-discrimination rules violate plaintiffs free exercise rights under RFRA. Becket Law has more background on the case.

Secretary of State Pompeo Declares Chinese Crimes Against Humanity and Genocide Against Uyghurs

Yesterday, Secretary of State Mike Pompeo announced that the State Department has concluded that since March 2017 China has committed crimes against humanity against the predominantly Muslim Uyghurs and other members of ethnic and religious minority groups in Xinjiang. These crimes remain ongoing.  The State Department has also concluded that China has-- and continues to-- commit genocide against the Muslim Uyghurs and other minority groups in the Xinjiang Uyghur Autonomous Region in Western China. 

Clergy Who Will Speak At Biden's Inauguration Are Identified

Vox reports that the clergy who will deliver the invocation and benediction at President Joe Biden's inauguration today are men with whom Biden has close personal ties.  Fr. Leo O’Donovan who will deliver the invocation was president of Georgetown University from 1980- 2001. Biden's son Hunter was  student at Georgetown during part of this period.  Rev. Silvester Beaman who will deliver the closing benediction is pastor of the predominately African-American Bethel AME Church in Wilmington, Delaware.

Biden Attending Mass This Morning With Bipartisan Congressional Leadership

According to The Hill, this morning President-Elect Joe Biden is attending Mass at Cathedral of St. Matthew the Apostle in downtown Washington, DC. At his invitation top leaders of both parties in the House and Senate-- Nancy Pelosi, Kevin McCarthy, Chuck Schumer and Mitch McConnell-- will attend with him.