Pretextual Religious Reasons For Firing Not Protected By Religious Autonomy Doctrine

In Garrick v. Moody Bible Institute, (ND IL, Oct. 13, 2020), an Illinois federal district court allowed a former Instructor of Communications at Moody Bible Institute (MBI) to move ahead with her Title VII disparate treatment and retaliation claims, but not her hostile work environment claim. Plaintiff Janay Garrick says she encountered rampant gender discrimination and harassment, and that MBI used disagreement with her religious views as a pretext for her firing. Rejecting in part MBI's religious autonomy defense, the court said:

Garrick alleges that Moody expected female teachers of secular subjects to perform more demanding duties and submit to more onerous performance reviews than similarly situated male teachers.... Under those circumstances, a reasonable inference can be made from the allegations that Moody fired Garrick because it held female teachers to higher standards than their male counterparts, not because it disapproved of her egalitarian religious views.

The court had dismissed an earlier version of plaintiff's complaint on church autonomy grounds. (See prior posting.)

Facebook Will Ban Holocaust Denial

Yesterday Facebook CEO Mark Zuckerberg announced that Facebook is updating its hate speech policy to ban Holocaust denial on its platform. He said in part:

[W]ith rising anti-Semitism, we're expanding our policy to prohibit any content that denies or distorts the Holocaust...

I've struggled with the tension between standing for free expression and the harm caused by minimizing or denying the horror of the Holocaust. My own thinking has evolved as I've seen data showing an increase in anti-Semitic violence, as have our wider policies on hate speech.

NPR has more on the decision.

Student Senate President Who Was Removed For His Religious Views Gets Limited Relief

In Denton v. Thrasher, (ND FL, Oct. 8, 2020), a Florida federal district court held that Florida State University's Student Senate acted unconstitutionally when it removed Jack Denton as Student Senate president. (He remained a member of the Senate.)  Student Senate took the action after Denton's private chat room comments were publicly circulated.  The offending remarks were:

BlackLivesMatter.com fosters “a queer-affirming network” and defends transgenderism. The ACLU defends laws protecting abortion facilities and sued states that restrict access to abortion. Reclaim the Block claims less police will make our communities safer and advocates for cutting PDs’ budgets. This is a little less explicit, but I think it’s contrary to the Church’s teaching on the common good....

I don’t mean to anger anyone – I know this is a very emotional topic. However, it is important to know what you’re supporting when you’re Catholic. If I stay silent while my brothers and sisters may be supporting an organization that promotes grave evils, I have sinned through my silence. I love you all, and I want us all to be aware of the truth. As far as it’s a religious issue or not, there isn’t an aspect of our lives that isn’t religious, because God wants our whole lives and everything we do to be oriented around him!

The court said in part:

Denton is not here to complain about insults or hurt feelings. His claim is that he lost his job—his student government position—because he chose to exercise his First Amendment rights.

The court however limited its relief to an order that Denton be paid for the six hours per week for the rest of the term that he would have served as Student Senate president. It refused to order that Denton be reinstated to his position since that could produce "tumult and chaos."  Inside Higher Ed reports on the decision.

Amy Coney Barrett's Scholarly Writings

Hearings began yesterday on the nomination of Amy Coney Barrett to the United States Supreme Court.  Here is a transcript of her opening statement to the Senate Judiciary Committee.  Before becoming a federal judge, Barrett wrote widely on issues of constitutional interpretation and the Supreme Court.  Here is a fairly comprehensive list of her scholarly writings (with links to the full text of most of them):

• Congressional Insiders and Outsiders, U.Chi. L. Rev. (forthcoming 2017).
• Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017).
• Congressional Originalism, 19 U. Penn. J. of Const. L. 1 (2017) (with John Copeland Nagle).
• Commencement Address, (2016).
• Statutory Interpretation in The Encyclopedia of American Governance, (2016).
• Federal Court Jurisdiction in The Encyclopedia of American Governance, (2016).
• Countering the Majoritarian Difficulty, 31 Const. Comm. 61 (2017).
• Suspension and Delegation,99 Cornell L. Rev. 251 (2014).
• Precedent and Jurisprudential Disagreement, 91 Texas L. Rev. 1710 (2013).
• Substantive Canons and Faithful Agency, 90 B.U. Law Rev. 109 (2010).
• Federal Jurisdiction in Encyclopedia of the Supreme Court of the United States. (2010).
• Introduction: Stare Decisis and Nonjudicial Actors, 83 Notre Dame Law Review 1147 (2008).
• Procedural Common Law, 94 Virginia L. Rev. 813-88 (2008).
• The Supervisory Power of the Supreme Court, 103 Colum. L. Rev. 324 (2006).
• Commencement Address, (2006).
• Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317 (2005).
• Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).
• Catholic Judges in Capital Cases, 81 Marquette L.Rev. 303 (1998) (with John H. Garvey).

Recent Articles of Interest

 From SSRN:

• Stephanie H. Barclay, An Economic Approach to Religious Exemptions, (Florida Law Review, Forthcoming).
• Haider Ala Hamoudi, Engagements and Entanglements: The Contemporary Waqf and the Fragility of Shi'i Quietism, (Journal of Law and Religion, Vol. 35, p. 2115, 2020).
• Hershey H. Friedman, A Talmudic Vade Mecum to Acquiring Worldly Wealth, (August 19, 2020).
• Zachary B. Pohlman, 'Churches' in a Time of Coronavirus,  (Canopy Forum, 2020).
• Josh Blackman, What Rights are “Essential”? The 1st, 2nd, and 14th Amendments in the Time of Pandemic, (Liberty & Law Center Research Paper No. 20-04 (2020).
• Henry You, Infinger Nick v The Hong Kong Housing Authority - A Remarkable Development of LGBTQ Rights in Hong Kong, (August 21, 2020).
• Debbie Kaminer & David Rosenberg, How the Conflict Between Anti-Boycott Legislation and the Expressive Rights of Business Endangers Civil Rights and Anti-Discrimination Laws, (July 28, 2020).
• Eleni Polymenopoulou, Human Rights in the Six Arab States of the Gulf Cooperation Council (‘GCC’): From Vision to Reality, (Cardozo Journal of International and Comparative Law, Forthcoming).

From SmartCILP:

• Limor Ezioni, Contemporary Aspects of Female Genital Mutilation Prohibitions in the United States, 28 American University Journal of Gender, Social Policy and the Law 39-62 (2019).
• Khaled A. Beydoun, Faith in Whiteness: Free Exercise of Religion as Racial Expression, 105 Iowa Law Review 1475-1536 (2020).

DC Restrictions On Outdoor Church Services Violate RFRA

 In Capitol Hill Baptist Church v. Bowser, (D DC, Oct. 9, 2020), a D.C. federal district court issued a preliminary injunction allowing plaintiff church to hold outdoor services, with masks and appropriate social distancing, beyond the 100-person maximum set out in the D.C. mayor's COVID-19 restrictions. The court concluded that current restrictions on the church's outdoor services violate RFRA.  The court said in part:

The District proposes that under its current restrictions the Church could “hold multiple services, host a drive-in service, or broadcast the service online or over the radio,” as other faith communities in the District have done.... But the District misses the point. It ignores the Church’s sincerely held (and undisputed) belief about the theological importance of gathering in person as a full congregation. The “substantial burden inquiry asks whether the government has substantially burdened religious exercise . . . not whether [the Church] is able to engage in other forms of religious exercise.”... The District may think that its proposed alternatives are sensible substitutes. And for many churches they may be. But “it is not for [the District] to say that [the Church’s] religious beliefs” about the need to meet together as one corporal body “are mistaken or insubstantial.”... It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.”...

The court made clear that its order applied only to the church that was plaintiff in this case. 

[Thanks to Eugene Volokh via Religionlaw for the lead.]

Abuse Victims Win First Round In Santa Fe Archdiocese Reorganization Proceedings

 In In re Roman Catholic Church of the Archdiocese of Santa Fe, (NM Bankr., Oct. 9, 2020), a New Mexico federal bankruptcy court granted an unsecured creditors committee-- apparently representing primarily clergy sex abuse victims-- derivative standing to pursue claims that some $150 million in assets actually belong to the Archdiocese, not to individual parishes. The Archdiocese serves as creditor in possession during its Chapter 11 reorganization, and it has refused to pursue the assets. Responding to the Archdiocese's First Amendment defenses, the court said in part:

The Bankruptcy Code’s fraudulent transfer sections are neutral and of general applicability, so it may be difficult to challenge them as violating the Free Exercise Clause of the First Amendment....

It rejected a RFRA defense, holding that RFRA applies only when the government is a party to the litigation. Rejecting a religious autonomy defense, the court said in part:

A claim to recover an alleged fraudulent transfer does not appear to be the kind of intrachurch dispute that the religious autonomy doctrine typically protects from court interference.

The court concluded its opinion with a plea for settlement negotiations:

If one or more of Debtor’s and/or the parishes defenses has merit, the UCC’s claims will fail. If none has merit, the UCC will recover many millions of dollars for the estate. Either way, the proposed litigation will be very expensive and time-consuming. Unless settled, the proceedings may have to be completed by successors to the party representatives, the judge, and counsel, after years of motion practice, discovery, discovery disputes, trials, appeals, remands, and retrials. Millions of dollars would have been spent on attorney fees and costs that could have paid valid abuse claims.

More clarity about the rights of the parties and what is estate property could help the ongoing efforts to reach a global settlement in this case. For that reason, some litigation of the UCC’s proposed claims may be needed. There will be a point, however, that the cost of continued litigation likely will outweigh the benefit. If the proceedings are not settled before then, Debtor, the parishes, and the abuse victims will be the poorer for it.

Hypothetical Religious Objections On LGBTQ Issues Cannot Disqualify Foster Parents

In Blais v. Hunter, (ED WA, Oct. 8, 2020), a Washington federal district court held that the Washington Department of Children, Youth and Families cannot use its policy to protect LGBTQ+ foster children as the sole determining factor in rejecting a foster family that expresses sincere religious beliefs that would preclude them from supporting gender transition in hypothetical future situation.  Plaintiffs in the case were a Seventh Day Adventist family that wanted to care for their great-granddaughter who might be removed from her home. The court concluded that the Department’s policies “operate as a religious gerrymander and are thus not neutral as applied to the Blaises and others similarly situated.” [Thanks to Eugene Volokh via Religionlaw for the lead.]

Seminary May Expel Students For Entering Same-Sex Marriages

In Maxon v. Fuller Theological Seminary, (CD CA, Oct. 7, 2020), a California federal district court held that the Religious Organization Exemption in Title IX applies to a seminary controlled by its own board of directors rather than by an outside religious organization. Thus, while Title IX was interpreted by the court to include a ban on discrimination on the basis gender stereotypes, the exemption allowed it to expel two students because they had entered same-sex marriages. Washington Times reports on the decision.

Supreme Court Sends Case On Medical Abortion Access Back To District Court

In Food and Drug Administration v. American College of Obstetricians and Gynecologists, (Sup. Ct., Oct. 8, 2020), the U.S. Supreme Court decided to hold in abeyance pending further District Court review the FDA's motion to stay an injunction that had been issued against it.  In the case, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. The 4th Circuit refused to stay the injunction pending appeal. (See prior posting.) The Supreme Court said: 

The Government argues that, at a minimum, the injunction is overly broad in scope, given that it applies nationwide and for an indefinite duration regardless of the improving conditions in any individual State. Without indicating this Court’s views on the merits of the District Court’s order or injunction, a more comprehensive record would aid this Court’s review. The Court will therefore hold the Government’s application in abeyance to permit the District Court to promptly consider a motion by the Government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed. ...  The District Court should rule within 40 days of receiving the Government’s submission.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

In response to the pandemic, state and local officials have imposed unprecedented restrictions on personal liberty, including severe limitations on First Amendment rights. Officials have drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies. The free exercise of religion also has suffered previously unimaginable restraints, and this Court has stood by while that has occurred.

SCOTUSblog reports on the decision.

Another Religious Challenge To California's COVID-19 Orders

 In a suit filed late last month, a Catholic priest has challenged California Governor Gavin Newsom's COVID-19 emergency orders.  the 77-page complaint (full text) in Burfitt v. Newsom, (CA Super. Ct., filed 9/29/2020) charges that the Governor's orders violate various provisions of the California state constitution, including free exercise, equal protection, liberty of speech and equal protection.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Church Says Eminent Domain Proceeding Violates It Religious Freedom Rights

 In Duncanville, Texas, the city has filed a condemnation petition seeking to take land owned by the Canaan Baptist Church in order to build a new fire station.  The property, which currently has no buildings on it, was acquired by the church in 2002 with plans to eventually build church buildings on it. In the meantime it is used for various outdoor church events by the 125-member, largely African-American church.  On Wednesday the church filed a motion seeking dismissal of the city's eminent domain proceedings.  The motion (full text) in City of Duncanville, Texas v. Canaan Baptist Church, (TX County Ct., filed 10/7/2020) contends that the condemnation proceedings violate the Texas Religious Freedom Restoration Act and the federal RLUIPA. First Liberty issued a press release announcing the filing of the lawsuit.

Catholic and Jewish Organizations Sue New York Governor Over New COVID-19 Restrictions

On Tuesday of this week, New York's Governor Andrew Cuomo announced new restrictions in spots in which clusters of COVD-19 cases have broken out. Areas include parts of Brooklyn and Queens and parts of Broome, Orange and Rockland Counties. The restrictions target mass gatherings and houses of worship, as well as businesses and schools.  In response, two important religious entities-- one Catholic and one Jewish-- have filed separate suits challenging the new Order.

The complaint (full text) in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (ED NY, filed 10/8/2020) reads in part:

The governor now proposes to limit in-person attendance at all "Houses of Worship" to the lesser of 10 people or 25% of church capacity in certain designated geographical areas, and to the lesser of 25 people or 33% of church capacity in others. As applied to the Diocese, whose impacted churches overwhelmingly seat upwards of 500 to 1000 parishioners, the percentage caps ... are rendered wholly illusory, and thus the churches will be placed in the untenable position of limiting attendance at Sunday mass and other fundamental Catholic services such as baptisms, weddings and funerals, to just 10 worshippers in designated "red" zones or just 25 worshippers in designated "orange" zones. Meanwhile, all other essential businesses can remain open without any capacity limitations whatsoever....

ABC7 News reports on the lawsuit. 

The complaint (full text) in Agudath Israel of America v. Cuomo, (ED NY, filed 10/8/2020) alleges in part:

5. Defendant’s Executive Order and the restrictions it contains will disrupt the religious observance of tens of thousands of Orthodox Jews in New York State, depriving them of their religious worship and holiday observance. The Executive Order requires enforcement of its restrictions to begin on Friday, October 9, which is Hoshanah Rabbah, the first of these three holidays.

6. Defendant has imposed these onerous and discriminatory new restrictions despite the fact that even he concedes he has not enforced the existing restrictions on houses of worship that already impose capacity limits and health requirements. Plaintiffs have completely complied with these rules, and Defendant does not contend otherwise.

Courthouse News Service reports on the suit.

UPDATE: Temporary restraining orders were denied in both cases on Oct. 9. See Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 U.S. Dist. LEXIS 188459.

USCIRF Issues Fact Sheets On Rohingya Refugees and Ritual Slaughter Laws

The U.S. Commission on International Religious Freedom has issued two Factsheets of interest this week:

• Factsheet on Rohingya Refugees in Southeast Asia
  
• Factsheet on Ritual Slaughter Laws in Europe

South Carolina Supreme Court Invalidates Emergency School Aid Program

 In Adams v. McMaster, (SC Sup. Ct., Oct. 7, 2020), the South Carolina Supreme Court held that South Carolina Governor Henry McMaster's allocation of $32 million in federal emergency education funding to create one-time grants for students to attend private and religious K-12 schools violates the South Carolina Constitution.  The court emphasized that the federal funds awarded to South Carolina are received by the State Treasury and distributed through the Treasury directly to private schools.  The court concluded:

We hold the Governor's decision constitutes the use of public funds for the direct benefit of private educational institutions within the meaning of, and prohibited by, Article XI, Section 4 of the South Carolina Constitution.

Island Packet reports on the decision.

Egyptian Court Bans Pilgrimages To Rabbi's Grave

 Al-Monitor reports that on Sept. 26, Egypt's Supreme Administrative Court upheld a lower court ruling banning the annual celebration in Damatyuh village near the city of Damanhur in Beheira governorate of the birth of Rabbi Yaqoub bin Masoud, known as Abu Hasira. The paper reports:

The court, which is the highest administrative court for administrative appeals in Egypt, ordered removing the shrine in which ... Abu Hasira, is buried, from the list of Islamic and Coptic antiquities in Egypt. In addition, it rejected a request to transfer his remains to Israel, which was submitted by Tel Aviv through UNESCO in 2012.

The court based its refusal to transfer the rabbi's remains because Islam respects the divine religions and rejects the exhumation of graves, and because Palestine is an occupied land and legitimizing the Jewishness of the state must be avoided by keeping this shrine on Arab land.

The appeal was filed by the Egyptian government; the previous ruling thus became final and irrevocable.

Before 2011, hundreds of Jews from Morocco, France and Israel made an annual pilgrimage to the rabbi's grave.

New Jersey COVID Limits On Indoor Church Services Are Upheld

In Robinson v. Murphy, 2020 U.S. Dist. LEXIS 185070 ( NJ, Oct. 2, 2020), a New Jersey federal district court refused to issue a preliminary injunction in a suit challenging COVID-19 Orders of the governor of New Jersey. The Orders limit the permitted number of worshipers at indoor religious services and require masks at services. Rejecting free exercise challenges, the court said in part:

[T]he challenged measures are subject to rational basis review because they are generally applicable and neutral laws that burden secular and religious activity alike. The State's policies are designed to combat the spread of COVID-19 in New Jersey given the current understanding of the virus which the Court finds is undoubtedly a legitimate governmental interest....

Furthermore, ... the laws are not substantially underinclusive requiring the application of strict scrutiny, as the indoor gatherings restrictions contain similar exceptions for religious purposes and for secular purposes, indoor religious gatherings have higher maximum capacities than secular indoor gatherings, and, as Plaintiffs themselves acknowledge, there are both feasibility and religious purpose exceptions included in the mask requirements.

Plaintiffs, a priest and a rabbi, had also argued that the orders violate the Establishment Clause:

Plaintiffs assert that the orders violate the Establishment Clause because Defendants are attempting to dictate the precise manner in which Plaintiffs and their congregants worship. They further contend that "by mandating crude and medically useless face coverings," Defendants have made it difficult to say mass or teach the Jewish faith.... The Court finds that the indoor gatherings restrictions and mask requirements pass constitutional muster.

The court, in addition, rejected free speech, equal protection and due process challenges.

Dakota Access Pipeline Protesters Can Move Ahead On Free Speech, But Not Free Exercise, Claims

In Thunderhawk v. County of Morton, North Dakota, (D ND, Sept. 1, 2020), plaintiffs challenged on numerous constitutional grounds North Dakota's closure of Highway 1806 which was used by the Standing Rock Sioux Tribe and thousands of its supporters to access campsites set up to protest construction of the Dakota Access Pipeline. In a 101-page opinion (which has just been widely made available) the court allowed plaintiffs to move ahead with their claims that the closure prevented them from engaging in protected speech and amounted to a prior restraint on speech. The court however rejected plaintiffs' free exercise claims, saying in part:

While the Plaintiffs provided facts in the Amended Complaint to suggest the Defendants’ actions in closing the road may not meet strict or intermediate scrutiny for their free speech claims, they have failed to allege facts suggesting the road closure may not meet rational basis as it relates to their free exercise claim. Because the Plaintiffs have failed to meet this burden, and as a result of neither Smith exceptions applying in this case to heighten the standard to strict scrutiny, Claim II is dismissed.

The court also rejected a variety of other constitutional challenges including right to travel and commerce clause claims. Turtle Talk blog has links to all the pleadings in the case.

Transcript and Audio Are Available of Supreme Court Arguments In RFRA Damages Case

This morning the U.S. Supreme Court heard oral arguments in Tanzin v. Tanvir. (Transcript of oral arguments) (Audio of oral arguments.)  In the case, a 3-judge panel of the 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants. (See prior posting). The SCOTUSblog case page has links to the briefs of the parties, amicus briefs and other filings in the case.

UPDATE: Deseret News reports on the oral arguments.

Court Enjoins NY Ban On Adoption Agencies Discriminating Against Gay Or Unmarried Couples

In New Hope Family Services, Inc. v. Poole, (ND NY, Oct. 5, 2020), a New York federal district court, hearing a case on remand from the Second Circuit (see prior posting), issued a preliminary injunction against enforcement of a regulation of New York's Office of Children and Family Services. 18 NYCRR §421.3 bars discrimination based on sexual orientation or marital status in furnishing of adoption services. The regulation was challenged by a Christian adoption agency that refuses to place children with unmarried or same-sex couples.  The court said in part:

[T]he totality of the evidence indicates that section 421.3(d), as promulgated and enforced by OCFS, is not neutral and appears to be based on some hostility towards New Hope's religious beliefs. In light of the Second Circuit's all but explicit direction, the Court finds that the totality of the evidence weighs in favor of a finding of hostility. In finding hostility, the Court relies on a number of factors that the Circuit noted in its decision.....

The Court finds that by attempting to force New Hope to say that it is in a child's best interests to be placed with an unmarried or same sex couple, despite New Hope's sincere disagreement with that statement, OCFS is attempting to compel speech. Although OCFS argues that New Hope is not compelled to speak because there is an alternative, closure is surely a harsh alternative for New Hope and, as discussed below, it is not the most narrowly tailored means of advancing the state's compelling interests....

Washington Times reports on the decision.