California's COVID-19 Ban On Worship Singing and Chanting Is Challenged

On Wednesday, a suit was filed in a California federal district court challenging California Governor Gavin Newsom's COVID-19 Order relating to restrictions on reopened church services.  The state's Guidance document requires that places of worship discontinue singing and chanting.  No similar requirement is placed on other reopened activities. The complaint (full text) in Calvary Chapel of Ukiah v. Newsom, (ED CA, filed 7/15/2020), alleges that the selective ban violates plaintiffs' 1st and 14th Amendment rights. It says in part:

The Worship Ban, on its face and as applied, impermissibly burdens Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs or the mandates in Defendants’ Worship Ban.

The Hill reports on the lawsuit.

British Court Says Foster Care Agency Can Serve Only Christians, But Cannot Exclude Gay Couples

In Cornerstone (North East) Adoption and Fostering Service Ltd. v. Office for Standards in Education, Children's Services and Skills, (England & Wales High Ct., July 7, 2020), a British judge ruled that a Christian adoption and foster care agency does not violate the Equality Act or the European Convention on Human Rights by recruiting only Evangelical Christians to be foster carers. However it does violate both the Equality Act and the Convention when it refuses to place children with Evangelical Christian same-sex couples. Christian News reports on the decision.

9th Circuit Hears Arguments In Hindu Challenge To California Curriculum Standards

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in California Parents for the Equalization of Educational Materials v. Torlakson. In the case, a California federal district court dismissed the claim that California public schools' History-Social Science Content Standards adopted in 1998 and its History-Social Science Framework adopted in 2016 violate the Establishment Clause by demonstrating hostility toward Hinduism. (See prior posting.) Courthouse News Service reports on yesterday's oral arguments.

Poway Rabbi Pleads Guilty To Fraud Charges

Under a Plea Agreement (full text) in United States v. Goldstein, (SD CA, 7/14/2020), a California rabbi plead guilty to one count of conspiracy to defraud the United States and commit wire fraud. As set out in the Information (full text) filed at the same time as the plea agreement, Rabbi Yisroel Goldstein was charged with a scheme to help at least five other taxpayers evade income taxes and fraudulently received other benefits.  Goldstein would generate receipts for charitable donations, but funnel 90% of the contributions back to donors. Taxpayers would also use the receipts to generate matching contributions from their employers.  He would also assist other in obtaining fraudulent grants or loans, and falsely generate community service records for individuals sentenced to community service.

Rabbi Goldstein obtained public notice in 2019 when an attack on his synagogue in Poway resulted in one death and injuries to others including Goldstein.  Courthouse News Service reports on the case:

U.S. Attorney Robert Brewer said during a press conference Tuesday Goldstein had personally made off with $620,000 in kickback payments for helping five Chabad of Poway donors evade paying personal income taxes....

“There is no doubt Rabbi Yisroel Goldstein was the victim of a horrific hate crime which terrorized him and the Chabad community. That event was a significant mitigating factor in the final plea agreement,” Brewer said....

Brewer said when Goldstein is sentenced later this year, the U.S. Attorney’s Office will recommend probation. He cited Goldstein’s past and ongoing cooperation, community contributions and “exemplary” example as “a significant advocate for peace and the elimination of violence and religious hatred” following the 2019 shooting.

Goldstein will pay $2.5 million in restitution as part of the plea agreement, Brewer said.

Clergy Cannot Get Inmates' Executions Delayed Because of COVID Fears

In Hartkemeyer v. Barr, (SD IN, July 14, 2020), an Indiana federal district court refused to delay the execution of prisoners in two separate cases where the prisoners' ministers of record argued that scheduling the execution during the COVID-19 epidemic violates the clergy's rights under  RFRA.  Each of the clergymen had a sincerely held religious belief that they needed to attend to the spiritual needs of the prisoner facing execution.  The court rejected the argument, saying n part:

The mere scheduling of an execution imposes no obligation or restriction on the religious advisor whom the condemned prisoner has selected to attend.

CNA reports on the decision.

Court Rejects Church's Claim That Its Free Exercise Rights Include Cockfighting

In Plumbar v. Perrilloux, (MD LA, July 13, 2020), a Louisiana federal district court refused to issue a preliminary injunction against enforcement of Louisiana's statute that bans cockfighting.  Members of Holy Fight Ministries claim that cockfighting is an integral and essential part of their religious faith. In denying the injunction, the court said in part:

Defendants have provided satisfactory evidence to show that the state has a compelling interest in enacting a law banning cockfighting and because the evidence casts doubt upon the type of institution operated by Plaintiffs. In other words, the evidence suggests that the cockfighting activities were more commercial in nature than a bona fide religious ritual.

Court Upholds New Mexico's COVID-19 Limits On Church Services In Lengthy Opinion

In a 268-page opinion in Legacy Church, Inc. v. Kunkel, (D NM, July 13, 2020), Legacy Church lost its challenges under the Free Exercise Clause and the Freedom of Assembly Clause to New Mexico Department of Health Kathyleen Kunkel’s Public Health Emergency Orders imposing various restrictions on gatherings for religious services. Summarizing its holdings, the court concluded that the Public Health Orders "are neutral with respect to religion and generally applicable;" and they "are unrelated to the suppression of speech or religion, serve a compelling state, interest, and less restrictive alternatives are not available."

Abortion Rights Proponents Win In 4 Cases

A series of abortion rights rulings were handed down in the last few days:

In Sistersong Women of Color Reproductive Justice Collective v. Kemp, (ND GA, July 13, 2020), a Georgia federal district court permanently enjoined enforcement of Georgia's Living Infants Fairness and Equality (“LIFE”) Act which prohibits abortions after detection of a fetal heartbeat and recognizes unborn children as "natural persons."  Courthouse News Service reports on the decision.

In Memphis Center for Reproductive Health v. Slatery, (MD TN, July 13, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of two bans on pre-viability abortions. One bans abortions when a fetal heartbeat is detectable. The other bans pre-viability abortions sought because of the race or sex of the fetus, or because of a Down syndrome diagnosis. ACLU issued a press release announcing the decision.

In American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (D MD, July 13, 2020), a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of in-person requirements that barred 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 court concluded:

in light of the COVID-19 pandemic, the In-Person Requirements cause an undue burden in violation of the Constitution, imposing a substantial obstacle on a large fraction of the relevant women seeking a medication abortion.

AP reports on the decision.

In Planned Parenthood of Maryland, Inc. v. Azar, (D MD, July 10, 2020), a Maryland federal district court enjoined implementation of HHS' "separate billing rule" which would have complicated the billing for abortion coverage in health insurance policies offered through state exchanges. As explained by the court:

HHS proposed that issuers would need to send two separate bills to the policyholder to comply with § 1303 (one bill for the portion of the premium attributable to non-Hyde abortion coverage and one for the rest of the premium), and instruct the policyholder to pay the premium attributable to non-Hyde abortion coverage in a separate transaction.

Health Affairs reports on the decision.

Recent Articles of Interest

From SSRN:

• Ananya Singh, The Dichotomy of the Sabarimala Verdict and Its Juxtaposition With the Private Law, Indian Secularism and Western Secularism, (June 7, 2020).
• Teresa Stanton Collett, Saints, Sinners, and Scoundrels: Catholic Law Faculty and A Light Unseen: A History of Catholic Legal Education in the United States, (St. John's Law Review , Forthcoming).
• Marc Spindelman, The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, Part IV,  Part V, (81 Ohio State Law Journal Online 117, 133 (2020)).
• Dorit Rubinstein Reiss & Madeline Thomas, More Than a Mask: Stay-at-Home Orders and Religious Freedom, (San Diego Law Review, Vol. 57, No. 4, 2020).
• Zalman Rothschild, Free Exercise's Lingering Ambiguity, (11 Calif. L. Rev. Online 282 (July 2020)).
• Muhammad Pervaiz Khan, A Shariah and Legal Appraisal of the Financial Institutions (Recovery of Finances) Ordinance, 2001, (2017).
• Brian D. Galle, The Quick (Spending) and the Dead: The Agency Costs of Forever Philanthropy, (June 11, 2020).

4th Circuit: Rastafarian Inmate Can Move Ahead With His Suit Over Solitary Confinement

Smith v. Collins, (4th Cir., July 10, 2020), is a suit by a Rastafarian inmate who spent over four years in solitary confinement for refusal to cut his hair. The inmate, Elbert Smith, says that his religion does not permit him to do so. The court, vacating the district court's dismissal of the lawsuit, said in part:

we hold that there is at least a genuine dispute of material fact as to whether Smith’s conditions of confinement imposed a significant and atypical hardship in relation to the ordinary incidents of prison life. Therefore, we vacate the district court’s summary judgment order and remand the case for further proceedings consistent with this opinion. Specifically, on remand, the district court should consider in the first instance, and after further discovery, whether the process that Smith received was constitutionally adequate and whether the Defendant-Appellees are nevertheless entitled to qualified immunity.

Turkey's President Converts Hagia Sophia Museum Back Into A Mosque

AP reports on the controversial move by Turkey's President to change the status of a UNESCO World Heritage site:

The president of Turkey on Friday formally reconverted Istanbul’s sixth-century Hagia Sophia into a mosque and declared it open for Muslim worship....

The decision sparked deep dismay among Orthodox Christians. Originally a cathedral, Hagia Sophia was turned into a mosque after Istanbul's conquest by the Ottoman Empire but had been a museum for the last 86 years, drawing millions of tourists annually.....

Turkey's high administrative court threw its weight behind a petition brought by a religious group and annulled the 1934 Cabinet decision that turned the site into a museum. Within hours, President Recep Tayyip Erdogan signed a decree handing over Hagia Sophia to Turkey's Religious Affairs Presidency.

Certiorari Granted In College Student Religious Speech Case

Yesterday the U.S. Supreme Court granted review in Uzuegbunam v. Preczwski, (Docket No. 19-968, certiorari granted 7/9/2020). (Order List). The case grows out of a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. Subsequently, the school changed its policies.  The U.S. 11th Circuit Court of Appeals held that the change mooted plaintiff's claim for nominal damages. (Full text of 11th Circuit opinion.) Appellants challenge that conclusion. ADF issued a press release on the grant of review.

RLUIPA Protects Religious Transition Home

In City Walk - Urban Mission Inc. v. Wakulla County Florida, (ND FL, July 9, 2020), a Florida federal district court granted a preliminary injunction requiring county officials to allow a church to operate a religious transition home for 3 to 6 unrelated adults. Neighbors had begun to complain when they learned that the home included registered sex offenders. The court said in part:

Defendant amended its Land Use Development Code, limiting Plaintiff to housing only two unrelated adults in the three-bedroom home at a given time....  The Religious Land Use and Institutionalized Persons Act ... provides broader protection for religious exercise than is available under the First Amendment. RLUIPA prohibits, among other things, a government from imposing a substantial burden on an entity’s or person’s religious exercise unless the government demonstrates that the imposition of the burden is in furtherance of a compelling interest and is the least restrictive means of furthering that compelling interest.

This Court finds Defendant’s two-adult limitation amounts to a substantial burden on Plaintiff’s religious exercise and that Defendant has failed to show that the burden imposed is the least restrictive means of furthering a compelling interest.

Supreme Court GVR's 3 Challenges To Contraceptive Mandate Exemptions

Today the U.S. Supreme Court summarily granted certiorari, vacated the judgment below and remanded to the U.S. 9th Circuit Court of Appeals three cases involving challenges to the Trump Administration's broadened contraceptive mandate exemptions.  The Court remanded for further consideration in light of its decision yesterday in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. The cases involved in today's GVR Order are Department of Health and Human Services v. California (Docket No. 19-1038), March for Life Education v. California (Docket No. 19-1040), and Little Sisters of the Poor v. California (Docket No. 19-1053). (Order List).

Expulsion of Catholic Elementary School Students Covered By Ecclesiastical Abstention Doctrine

In Doe v. Archdiocese of Galveston- Houston, (TX App., July 7, 2020), a Texas state appellate court affirmed the dismissal on ecclesiastical abstention grounds of a suit against a Catholic elementary school claiming breach of contract, violations of the Texas Deceptive Trade Practices Act, fraud, intentional infliction of emotional distress, tortious interference, and conspiracy.  The school claimed that one of plaintiffs' sons, Bob, was seriously misbehaving, including hitting and kicking classmates. Bob's parents in turn suspected that Bob's teacher was bullying and verbally abusing Bob.  The parents hid a recording device on Bob to determine what was going on.  When the school discovered this, they expelled both of plaintiffs' sons. The court said in part:

Jane and Peter ... contend that their children were expelled for reasons that have nothing to do with religion, i.e., not because the children “did not want to attend mass, say their prayers, or genuflect when entering the Church.” Rather, they argue that Bob’s misbehavior and their advocacy on his behalf were secular in nature and therefore, their causes of action do not require a review or interpretation of the teachings of the Catholic church.

The jurisdictional evidence supplied by the school defendants and the Archdiocese tells a somewhat different story—one involving a breach of trust by Jane and Peter and breach of the rules broadly included in the school’s Family Handbook.... [T]he trial court did not err ... because the management of internal affairs, conformity of members to the moral standards required of them, and, in the context of an educational faith-based institution, the expulsion or retention of students are considered ecclesiastical matters to which the ecclesiastical abstention doctrine applies.

Supreme Court Interprets "Ministerial Exception" To Employment Discrimination Claims Broadly

In Our Lady of Guadalupe School v. Morrissey-Berru, (Sup. Ct., July 8, 2020), the U.S. Supreme Court in a 7-2 decision held that two elementary school teachers in separate Catholic schools, are covered by the "ministerial exception" so that they cannot sue for employment discrimination. Justice Alito's majority opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch and Kavanaugh deferred in significant part to churches' own definitions of their employees:

In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important. 

Comparing the teachers here with the one in the Supreme Court's prior ministerial exemption decision in Hosanna-Tabor, the Court said in part:

When we apply this understanding of the Religion Clauses to the cases now before us, it is apparent that Morrissey-Berru and Biel qualify for the exemption.... There is abundant record evidence that they both performed vital religious duties. Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility. As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith. They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities.... Their titles did not include the term “minister,” and they had less formal religious training, but their core responsibilities as teachers of religion were essentially the same. And both their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the schools’ definition and explanation of their roles is important.

Justice Thomas, joined by Justice Gorsuch, filed a concurring opinion, saying in part:

I write separately, however, to reiterate my view that the Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is “ministerial.”

Justice Sotomayor, joined by Justice Ginsburg, dissented, saying in part:

In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school teachers of their legal protections, I respectfully dissent....

[T]he Court’s apparent deference here threatens to make nearly anyone whom the schools might hire “ministers” unprotected from discrimination in the hiring process. That cannot be right....

NBC News reports on the decision.

Supreme Court Upholds Expanded Exemptions From ACA Contraceptive Coverage Mandate

In a 7-2 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, (Sup. Ct., July 8, 2020), the U.S. Supreme Court rejected challenges to the Trump Administration's expanded exemptions from the Affordable Care Act contraceptive coverage mandate.  The challenged rules allowed employers with religious exemptions and most employers with moral objections to opt out of furnishing coverage. Justice Thomas' majority opinion, joined by Chief Justice Roberts and Justices Alito, Gorsuch and Kavanaugh held that the ACA gives the relevant federal departments authority to provide these exemptions from the contraceptive mandate. It went on:

The Departments also contend, consistent with the reasoning in the 2017 IFR and the 2018 final rule establishing the religious exemption, that RFRA  independently compelled the Departments’ solution or that it at least authorized it.  In light of our holding that the ACA provided a basis for both exemptions, we need not reach these arguments. We do, however, address respondents’ argument that the Departments could not even consider RFRA as they formulated the religious exemption from the contraceptive mandate. Particularly in the context of these cases, it was appropriate for the Departments to consider RFRA.

The Court also rejects challenges to the procedural process used to adopt the rules-- including the claim that the Departments did not maintain an open mind in considering comments on the rules before their adoption in final form, saying in part:

We decline to evaluate the final rules under the open-mindedness test. We have repeatedly stated that the text of the APA provides the “‘maximum procedural requirements’” that an agency must follow in order to promulgate a rule.

Justice Alito, joined by Justice Gorsuch, filed a concurring opinion, saying in part:

I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it). I would bring the Little Sisters’ legal odyssey to an end.

Justice Kagan, joined by Justice Breyer, concurred in the judgment, filing an opinion agreeing that the Departments had statutory authority to differentiate among health plans, but concluding that petitioner's challenge that the Departments' actions were arbitrary and capricious remain open upon remand:

That issue is now ready for resolution, unaffected by today’s decision.  An agency acting within its sphere of delegated authority can of course flunk the test of “reasoned decision making.”... The agency does so when it has not given “a satisfactory explanation for its action” .... Assessed against that standard of reasonableness, the exemptions ... give every appearance of coming up short.

Justice Ginsburg filed a dissenting opinion, joined by Justice Sotomayor, saying in part:

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.... Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.

CNN reports on the decision.

6th Circuit Reverses Dismissal of Rastafarian Inmate's Diet and Fasting Claims

In Koger v. Mohr, (6th Cir., July 7, 2020), the U.S. 6th Circuit Court of Appeals reversed an Ohio federal district court's dismissal of two religious accommodation claims brought by a Rastafarian inmate. The court concluded that officials had not offered adequate justification for refusing to provide an Ital diet (organic food, vegetarian no soy).  The court also concluded that plaintiff had asserted a valid equal protection claim as to refusal to accommodate Rastafarian fasting days:

Koger stated that he “fasted during Ramadan in the past because it occasionally aligns with the fasting days observed by Rastafarianism” and because ODRC did not allow him “to fast as a Rastafarian . . . without being subject to discipline.”

The court affirmed the dismissal of plaintiff's claims as to dreadlocks and inability to commune with other Rastafarians.

Turkistani Exiles Ask International Criminal Court To Investigate Genocide Against Uyghurs

According to a press release issued on July 6:

Today, lawyers representing the East Turkistan Government in Exile (ETGE) and the East Turkistan National Awakening Movement (ETNAM) have submitted a lengthy Complaint to the ICC [International Criminal Court] asking the OTP [Office of the Prosecutor] to open an investigation into Genocide and other Crimes Against Humanity allegedly committed against the Uyghur and other Turkic peoples of East Turkistan by senior Chinese Leaders including President Xi Jinping.

New York Times reports on developments.

Jewish Summer Camps In New York Lose Challenge To COVID-19 Closures

In Ass'n of Jewish Camp Operators v. Cuomo, (ND NY, July 6,2020), a New York federal district court rejected arguments that New York state, among other things, violated the Free Exercise clause "by discriminatorily banning children’s Jewish overnight camps (while exempting favored secular conduct) in a way that is not narrowly tailored to curbing the transmission of the COVID-19 virus...." The court said in part:

Plaintiffs argue that Defendant’s executive orders are not neutral because his refusal to allow overnight camps to open effectively targets Jewish overnight camps (given that almost all of the secular or non-Jewish overnight camps had already decided they would not open in the summer of 2020 by the time Defendant and Health Commissioner Zucker specifically clarified on June 12, 2020, that overnight camps would not be allowed to open). Although it is true that “[t]he effect of the law in its real operation is strong evidence of its object,” it is likewise true that “adverse impact will not always lead to a finding of impermissible targeting.” ... Plaintiffs have provided no factual allegations or evidence to indicate that the fact that only Jewish overnight camps have continued to plan to open for the summer leads to the conclusion that Defendant’s executive orders have targeted the Jewish faith. To the contrary, it is undisputed that Defendant’s ban on overnight camps applies equally to all such camps, regardless of the camps’ religious (or secular) nature. The fact that Plaintiffs have maintained a hope and willingness to operate or send their children to overnight camps this summer longer than most persons involved with secular or non-Jewish overnight camps does not somehow turn Defendant’s facially neutral executive order into impermissible targeting.

The court also rejected 14th Amendment challenges contending that the closures infringed parental rights to control the upbringing of their children. Times Herald Record reports on the decision.