Trump Speaks to Faith and Freedom Conference

President Trump yesterday spoke for an hour to those attending the Faith and Freedom Coalition “Road to Majority” 2019 Conference in Washington, D.C. (Full text of remarks.)  In his wide ranging comments on the accomplishments of his Administration, he said in part:

And we are once again defending and promoting our great American values.  And we’re saying, “Merry Christmas” again.  Do you notice?  Remember?  Remember?  (Applause.)   I usually save that for November, December, but I was just thinking — as I mentioned, I was saying, we’re going to say, “Merry Christmas.”  They were all taking it down off the department stores — everything.  You’d see a big red — they’d say, “Happy Holidays.”  No “Merry Christmas.”  They’re saying, “Merry Christmas,” again.  It’s very interesting.  And they’re proud of it.  (Applause.)...

And now, by the way, because of what we did with respect to the Johnson Amendment — you know what I’m talking about — our leaders, like all of the people that have been so supportive — our pastors, our ministers, our priests, our rabbis — all of our religious leaders — every — we’re allowed to speak again.  We’re allowed to talk without having to lose your tax exemption, your tax status, and being punished for speaking.  (Applause.)  And the people that we most want to hear, our great clergy, is now able to speak without fear of retribution....

We’re cherishing our nation’s religious heritage once again.  My administration has taken historic action to protect religious liberty. (Applause.)  We are protecting the conscience rights of doctors, and nurses, and teachers, and groups like the Little Sisters of the Poor.  We’re with them.  (Applause.)....

Americans’ belief in God has forged the character of our country and made our nation a light unto the world.  We are respected again as a nation, I will tell you that.  And I’m not only talking about from a religious standpoint.  Our country is respected again.  (Applause.)

Minnesota Diocese Settles With Abuse Victims In Bankruptcy Proceeding

The Diocese of New Ulm, Minnesota announced yesterday that along with area parishes it has reached a settlement in its bankruptcy proceeding with victims and survivors of sexual abuse.  The Diocese and area parishes, along with their insurance companies, will pay $34 million which will be distributed to claimants. The Diocese has also agreed to disclose the names of all clergy with credible claims of abuse against them. The eventual bankruptcy court order will bar all other claims that arose before confirmation of the plan of reorganization. AP reports on the settlement.

Survey Finds Increased Support for Religious-Based Refusals To Serve Small Business Customers

On Tuesday, the Public Religion Research Institute released the results of its survey finding increased public support for allowing small businesses to refuse service to various minority groups because of the business owner's religious views. (Full text of survey results.) The report finds 30% say it should be permissible to refuse service to gays or lesbians on religious grounds, while 29% say the same for refusals to serve transgender individuals. 24% support allowing refusal to serve atheists; 22% say this should be allowed as to Muslims.19% say it should be allowed as to Jews. 15% say small businesses should be able to refuse service to African-Americans if it conflicts with religious beliefs.

District Court, Citing 1st Circuit Precedent, Upholds Maine's School Funding Plan

In Carson v. Makin, (D ME, June 26, 2019), the Maine federal district court rejected a 1st Amendment challenge to Maine's program for paying tuition to private high schools for students in districts which do not operate their own high schools. The program excludes sectarian schools from participating. The district court approved Maine's plan on the basis of prior 1st Circuit decisions, despite challengers' argument that the Supreme Court's decision in Trinity Lutheran Church v. Comer should change the result. The district court said in part:

My decision not to decide the ultimate question the parties and amici pose—whether Trinity Lutheran has changed the outcome in Eulitt—is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court. In the First Circuit, the parties can argue their positions about how Trinity Lutheran affects Eulitt. I congratulate them on their written and oral arguments in this court. I hope that the rehearsal has given them good preparation for their argument in the First Circuit (and maybe even higher). My prompt decision allows them to proceed to the next level expeditiously.

(See prior related posting.) Maine Public Radio reports on the decision.

9th Circuit, Over Dissents, Denies En Banc Rehearing In Ministerial Exception Case

In Biel v. St. James School, (9th Cir., June 25, 2019), the U.S. 9th Circuit Court of Appeals denied a rehearing en banc in an ADA case brought by a 5th grade teacher at a Catholic elementary school. The panel, in a 2-1 decision, held that the teacher is not a "minister" for purposes of the ministerial exception doctrine. (See prior posting.)  Nine judges dissented from the denial of an en banc  rehearing in a 24-page opinion written by Judge Nelson, saying in part:

By declining to rehear this case en banc, our court embraces the narrowest construction of the First Amendment’s “ministerial exception” and splits from the consensus of our sister circuits that the employee’s ministerial function should be the key focus.

[Thanks to Jeff Pasek for the lead.] 

Workplace Hate Crime Meets Commerce Clause Threshold

In United States v. Hill, (4th Cir., June 13, 2019), the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that the federal Hate Crimes Prevention Act can constitutionally be applied to the assault of a co-worker who was preparing packages for interstate sale and shipment.  Defendant boastfully admitted to assaulting the coworker because of his sexual orientation. Finding that the commerce clause was broad enough to authorize federal coverage in this case, the majority said in part:

[W]hen Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interferes with or affects that activity.

Judge Agee dissented, arguing:

To allow Congress to exercise its Commerce Clause power over the noneconomic offense of a bias-motived punch would allow Congress to exercise its Commerce Clause power based on such indirect—and often, as here, non-existent—connection to commerce that it converts the Clause into a federal police power.

House Holds Hearing On "Do No Harm" Act

The U.S. House Education and Labor Committee held a hearing yesterday on H.R. 1450, the "Do No Harm" Act. The hearing was titled Do No Harm: Examining the Misapplication of the 'Religious Freedom Restoration Act'. A video of the full 3 hour and 45 minute hearing plus transcripts of the prepared testimony of the committee chairman and the witnesses are all available from the committee's website.   The Opening Statement by Committee Chairman Robert C. “Bobby” Scott reads in part"

The passage of RFRA was meant to re-instate a broader protection of free exercise rights. It was not meant to erode civil rights under the guise of religious freedom. Importantly, it did not change the First Amendment’s Establishment Clause, which ensures that the government cannot elevate certain religious or moral beliefs above the law.

No sooner than RFRA was enacted, the floodgates began to open and RFRA has since been used to: • Legitimize housing discrimination against single mothers and minorities, • Shield church groups from paying child abuse victims, and • Impose extreme emotional harm on schoolchildren based on their gender identity.

Since the beginning of the Trump administration, this troublesome trend has only gotten worse. On May 4th, 2017, the Trump administration issued an Executive Order, undermining RFRA’s original intent and allowing individuals to use 'conscience-based objections' to override civil rights protections....

We must pass legislation that restores RFRA’s original intent. H.R. 1450, the Do No Harm Act, would help ensure that our right to religious liberty does not threaten fundamental civil and legal rights.

Specifically, the bill would prevent RFRA from being used to deny: • Equal opportunity and protection against discriminatory laws; • Workplace protections and protections against child abuse; • Health care access, coverage, and services; and, • Contracted services.

Christian School Sues Over Exclusion From State Funding Programs

Suit was filed on Monday in a Maryland federal district court by a preschool- 8 Christian school that was excluded from Maryland's scholarship program for low-income students, as well as the state's textbook and technology and its aging schools programs.  The complaint (full text) in Bethel Ministries, Inc. v. Salmon, (D MD, filed 6/24/2019), alleges that the school does not discriminate in admissions on the basis of sexual orientation, but that it was nevertheless disqualified because of its policy on transgender students and on same-sex marriage.  According to the complaint:

50. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that marriage is the union of one man and one woman. 

51. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that biological sex as either male or female is an immutable gift from God, and therefore identify with, dress in accordance with, conduct themselves in keeping with, use the pronouns associated with, and use the facilities provided for, their biological sex....

53. Bethel’s conduct policy prohibits any communication of a sexual nature, such as identifying as the opposite sex, or expressing romantic attraction towards another student.

The school alleges that disqualifying it on this basis violates its 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

State Department Issues 2018 International Religious Freedom Report

On June 21, the U.S. State Department released its 2018 Report on International Religious Freedom, saying:

The annual Report to Congress on International Religious Freedom – the International Religious Freedom Report – describes the status of religious freedom in every country. The report covers government policies violating religious belief and practices of groups, religious denominations and individuals, and U.S. policies to promote religious freedom around the world. The U.S. Department of State submits the reports in accordance with the International Religious Freedom Act of 1998.

Universal Life Church Sues Over Tennessee Ban On Solemnization of Marriages By Those Ordained Online

In a press release, Universal Life Church Ministries announced that it filed suit in a Tennessee federal district court on June 21 challenging the constitutionality of an amendment to the Tennessee Code scheduled to go into effect on July 1. The new law (full text) prohibits individuals who have received online ordinations from solemnizing marriages in the state. The Universal Life Church Ministries  has ordained more than 20 million individuals worldwide during the past 40 years through its online ordination. The lawsuit, brought on behalf of three ministers in Tennessee, alleges violations of the 1st and 14th Amendments and Art. I Sec. 3 of the Tennessee Constitution.  In its press release, ULMC says in part:

In the year 1454, Johannes Gutenberg – after years of painstaking work and near financial ruin – changed the world forever when he utilized his brilliant new printing press to successfully print the Bible. This Earth-shattering technological innovation arguably marked one of the first steps in a long chain of events that would bring about the Protestant movement, and for the first time in centuries return the power of religion to common women and men. People were finally free to pray, read, learn, commune, and question in a manner of their choosing – and the world is better off for it.

Much like Johannes Gutenberg, the Universal Life Church Ministries argues that it has always embraced the remarkable power of technology to bring people together in a global spiritual community and to push the conversation forward in pursuit of ever-higher levels of enlightenment.

Supreme Court Says Ban on Immoral or Scandalous Trademarks Violates 1st Amendment

The U.S. Supreme Court today in Iancu v. Brunetti, (US Sup. Ct., June 24, 2019), held that the Lanham Act’s ban on registration of "immoral" or "scandalous" trademarks violates the First Amendment's free expression provisions.  The court's opinion written by Justice Kagan, and joined by Justices Thomas, Ginsburg, Alito, Gorsuch and Kavanaugh, concluded that the ban amounts to viewpoint discrimination.  In the case, the PTO had refused to register the trademark "FUCT" as the brand name for a line of clothing. Justice Kagan gave examples of the discriminatory manner in which the Act has been applied, including the following:

[T]he PTO refused to register trademarks associating religious references with products (AGNUS DEI for safes and MADONNA for wine) because they would be “offensive to most individuals of the Christian faith” and “shocking to the sense of propriety.” ... But once again, the PTO approved marks—PRAISE THE LORD for a game and JESUS DIED FOR YOU on clothing—whose message suggested religious faith rather than blasphemy or irreverence.

Justice Alito also filed a concurring opinion, stating in part:

Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.

Three separate opinions dissenting in part were filed-- one by Chief Justice Roberts, one by Justice Breyer and one by Justice Sotomayor joined by Justice Breyer.  They all argued that while the ban on "immoral" trademarks violates the First Amendment, the ban on "scandalous" marks can be given a narrow construction that would save the provision. They contend it should be read to ban only obscene, vulgar or profane marks.  CNN reports on the decision.

Supreme Court Asks SG For Views On Catholic Diocese Pension Case

The U.S. Supreme Court today called for the Solicitor General to file a brief expressing the views of the United States in Archdiocese of San Juan v. Feliciano, (Docket No. 18-921). (Order List.)   The case poses the question of whether Puerto Rico courts can get to the assets of numerous related Catholic entities in Puerto Rico to satisfy pension obligations to Catholic school employees. The petition describes the question presented as: "Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability." Here is the SCOTUSblog case page for the case linking to all the filings in the case.

Factional Dispute In Ethiopian Orthodox Church Dismissed

In Ambellu v.  Re’ese Adbarat Debre Selam Kidist Mariam, (D DC, June 21, 2019), the D.C. federal district court dismissed a suit brought by former members of the Ethiopian Orthodox Tewhado Church alleging that a group of current members and priests conspired to take control of the Church through means that violate the Racketeer Influenced and Corrupt Organizations Act. The court held that the 1st Amendment precludes it from hearing the claim for intentional infliction of emotional distress, saying:

Whether someone may worship at a church is plainly a matter of ecclesiastical cognizance.

The court also dismissed complaints about the way dues money is spent, saying in part:

How a church spends worshippers’ contributions is, like the question of who may worship there, central to the exercise of religion. And placing its assets in trust for the Parishioners at the expense of the Current Leaders would constitute an impermissible judicial interference with the Church’s ability to make governance and spending decisions. Indeed, evaluating the Parishioners’ claims would require the Court to decide who is rightfully empowered to make financial decisions for the Church. The Free Exercise Clause requires that the Court to decline to do so.

The court held that while the 1st Amendment does not deprive it of jurisdiction over claims of fraud and breach of fiduciary duty, it held that plaintiffs had not adequately pleaded these claims.

Recent Articles of Interest

From SSRN:

• Joshua D. Dunlap, A Venerable Bulwark: Reaffirming the Primacy Approach to Interpreting the Free Exercise Clause in the Maine Declaration of Rights, (June 7, 2019).
• Steve Sanders, The Cultural Politics of Dan Quayle and Mike Pence, (Indiana Law Review, Vol. 52, No. 1, 2019).
• Anthony Gill, The Comparative Endurance and Efficiency of Religion: A Public Choice Approach, (June 6, 2019).
• Sohail Wahedi, Exporting the Revolution to Africa: The Nigerian Experience, (Law, Religion and Human Flourishing in Africa, in M. Christian Green (Ed.), 2019).
• Stephen Matthew Feldman, Having Your Cake and Eating It Too? Religious Freedom and LGBTQ Rights, 9 Wake Forest Journal of Law & Policy 35 (2018).
• Rafael Domingo, Why Spirituality Matters for Law: An Explanation, (June 14, 2019).
• Rivka Weill, Women’s and LGBTQ Social Movements and Constitutional Change -- On Geoffrey Stone’s Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century, (Jerusalem Review of Legal Studies, Forthcoming).
• Aaron Gordon, Establishment and Endorsement, (May 12, 2019).
• Jennifer Levi & Kevin M. Barry, Transgender Tropes & Constitutional Review , (Yale Law & Policy Review, Vol. 37, No. 589, 2019).
• Louis Cholden-Brown, The Reproductive Rights Charter, (University of Detroit Mercy Law Review, Forthcoming).
• Michael Quinlan, Born (Again) This Way: Why the Inherent Nature of Religiosity Requires a New Approach to Australia's Discrimination Laws, (from Augusto Zimmerman (ed) A Commitment To Excellence (Connor Court, 2018) 96-147).Ahmed Souaiaia, Hope Springs Eternal: Reforming Inheritance Law in Islamic Societies, (June 10, 2019).
• Adeel Hussain, Muslim Nationality in Late Colonial India: From Law to Sacrifice, (Pakistan Journal of Historical Studies (2018) Vol 3, no. 2).
• Marija Tesla, Hollow Promises in the Face of Slaughter: The Yazidi Genocide and the Path Toward Justice, (May 1, 2019).
• Rehana Anjum, An Introduction of Intellectual Property Rights in Islamic Law,(April 18, 2019).

From SmartCILP:

• Paul T. Babie & Arvind P. Bhanu, Freedom of Religion and Belief in India and Australia: An Introductory Comparative Assessment of Two Federal Constitutional Democracies, 39 Pace Law Review 1-41 (2018).
• Kelly Shackelford, Religious Liberty: An Update from the Frontlines, [Abstract], 23 Texas Review of Law & Politics 335-344 (2018-2019).

IRS Urged To Accommodate Amish On Child Tax Credit Claims

As required by the Internal Revenue Code, last week the National Taxpayer Advocate released her FY2020 Objectives Report to Congress.  One of the recommendations of the Report is that the IRS reconsider its position on the application of the Religious Freedom Restoration Act to the requirement that taxpayers include the Social Security Number for each child for which they claim a Child Tax Credit.  The requirement disadvantages members of the Amish community who often refuse, on religious grounds, to obtain Social Security numbers.

Specified Alabama Religious Schools and Church Can Create Their Own Police Forces

As reported last week by WBRC, Birmingham, Alabama's Briarwood Presbyterian Church has issued a press release expressing appreciation for the Governor's recent signing of HB 309 (full text) which adds Madison Academy  and Briarwood Presbyterian Church and its integrated auxiliary Briarwood Christian School to the list of colleges that can create their own police forces.  Both of the added schools are preK-12 Christian schools. According to MSN News, the Alabama ACLU is concerned that this could give the schools the ability to avoid reporting to outside authorities criminal activity that takes place on their premises. [Thanks to Tom Rutledge for the lead.]

Early Analysis of Supreme Court's Bladensburg Cross Ruling

Here are some early commentaries on yesterday's U.S. Supreme Court decision in American Legion v. American Humanist Association:

• Amy Howe, Justices Allow "Peace Cross" To Stand
• Harvey Weiner, The Cross May Stand, Though It Offends
• Ira Lupu and Robert Tuttle, A Splintered Court Leaves the Bladensburg Cross Intact
• Adam Bonin, Supreme Court Effectively Grandfathers In Most Older Religious Displays On Public Land

9th Circuit Lifts Injunctions On Title X Abortion Counseling Ban

In State of California v. Azar, (9th Cir., June 20, 2019), the U.S. 9th Circuit Court of Appeals granted a stay of the injunctions that had been issued by three district courts that had prevented Trump Administration regulations on family planning grants from going into effect. As described by the court:

Under the Final Rule, Title X grantees are prohibited from providing referrals for, and from engaging in activities that otherwise encourage or promote, abortion as a method of family planning.... Providers are required to refer pregnant women to a non-abortion prenatal care provider, and may also provide women with a list of other providers (which may not be composed of more abortion providers than non-abortion providers). 

Relying on a 1991 Supreme Court decision the 9th Circuit concluded that the Final Rule is a reasonable interpretation of Title X, and that two intervening laws did not change that conclusion. CBS News, reporting on the decision, points out that the new regulations also ban clinics that receive federal funds from sharing office space with abortion providers-- a provision apparently aimed at Planned Parenthood which says it will seek reconsideration of the decision by the 9th Circuit.

Court Rejects Free Exercise Defense To Infliction of Emotional Distress Claim

In Lawrence v. Treybig, (TX App., June 20, 2019), a Texas state appeals court affirmed a trial court jury's award of nominal damages and a permanent injunction against Arthur Lawrence who had been hired by a wealthy family as a basketball coach for their son, Cody Treybig, when he was nine years old. Lawrence remained in that position for six years during which time he convinced Cody of Lawrence's paranoid religious views:

Lawrence ... told Cody that Jimmy Treybig, Cody’s father, was a high-level member of an evil society called the Illuminati; that Cody’s school, his hometown of Austin, and colleges in general were full of evil Illuminati members; that the rapture was imminent; that Cody’s parents intended to have an RFID5 chip implanted into Cody’s body, which would damn him to hell; that the RFID chip would control Cody’s mind and would contain cyanide that could be used to kill him if he resisted; and that Cody’s parents and brother hated him and were evil.

In the suit against Lawrence for intentional infliction of emotional distress, the court rejected Lawrence's free exercise defense:

Lawrence argues that the jury could not determine whether his conduct was extreme and outrageous without weighing the veracity of his religious beliefs and that the trial court therefore should have dismissed Cody’s claims. However, whether Lawrence’s views are sincerely held or whether he believed that he was helping to save Cody from damnation is irrelevant under the facts of this case, in which Lawrence’s conduct, no matter its motivation, was extreme and outrageous.

The court affirmed the award of damages of $4 and an injunction barring Lawrence from coming within 1,000 feet of Cody or contacting Cody or his family.

Roy Moore To Run Again For Senate

Roy Moore, former Chief Justice of the Alabama Supreme Court, announced yesterday that he will once again run for the U.S. Senate seat from Alabama. CNN, reporting on Moore's announcement, said in part:

Moore has long been a controversial figure in the state. He was twice elected as Alabama chief justice but was removed both times, for installing a giant statue of the Ten Commandments in the state judicial building and for ordering lower court judges to refuse to marry same-sex couples.

"We have every right to recognize God," Moore said. "That'll be a main factor in my race."

Senate Republicans generally hope that Moore will be defeated in the Republican primary.