NY Guidelines For Yeshiva Educational Requirements Are Struck Down

Yesterday a New York state trial court judge struck down the state's controversial Guidelines adopted last year aimed at  assuring that yeshivas, as well as other non-public religious and independent schools, comply with state law requiring them to offer an education substantially equivalent to that of public schools. (See prior related posting.) In Parents for Educational and Religious Liberty in Schools v. Rosa, (Albany Cty. Sup. Ct., April 17, 2019), the court held that the education commissioner did not comply with the notice and comment requirements of the State Administrative Procedure Act in adopting the Guidelines. Gothamist reports on the decision. [Thanks to Steven H. Sholk for the lead.]

8th Circuit Hears Arguments Over Title VII's Applicability To Sexual Orientation

Yesterday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Horton  v.  Midwest Geriatric Management (audio of full oral argument). As reported by the National Law Journal, at issue is whether Title VII's prohibition on discrimination "because of sex" covers discrimination on the basis of sexual orientation. In the case, a health care specialist sued after his offer of employment was rescinded, claiming the rescission came because his employer discovered he was gay.

Rockland County Issues New Orders To Combat Measles Spread

Rockland County, New York health authorities are taking new steps to combat the spread of measles in the county.  As previously reported, on April 5 a New York state trial court judge held that the health department's declaration of a state of emergency was invalid. That decision is being appealed. Yesterday the County announced two new Orders by the Commissioner of Health, relying on different legal authority than the basis of the Order that was struck down.

The first new Order (full text) provides that anyone diagnosed with measles, or exposed to someone diagnosed with measles, must be excluded as a public health nuisance from places of public assembly for up to 21 days. Places of public assembly are defined broadly and include the homes of other persons.

The second new order requires schools in two zip code areas to file a notarized statement identifying unvaccinated students who, as required, have been excluded from school. Orangetown Daily Voice reports on these developments.

Morocco Names Chief Rabbinical Court Master, Ending 100 Years of Vacancies In the Post

Arutz Sheva reports that the government of Morocco, on behalf of the country's King Mohammed VI, has appointed Rabbi Yoshiahu Pinto to the post of Supreme Chief Rabbinical Court Master. The post has been vacant for last 100 years. In his position, Pinto will head the Moroccan Jewish community's kosher food supervision and will adjudicate religious and customary issues for the country's 10,000 Jewish residents, as well as for the many Jewish visitors to the country.

DOJ Settles RLUIPA Zoning Claims With Texas City

The Department of Justice announced yesterday that it has reached an agreement with the City of Farmersville, Texas to resolve allegations that the city violated RLUIPA when in 2017 it denied a Muslim organization approval for construction of a cemetery:

The settlement agreement resolves a lawsuit the United States filed today in the U.S. District Court for the Eastern District of Texas. After the City denied the Islamic Association’s application to build a religious cemetery, the United States opened an investigation of the City’s actions in September 2017. In August 2018, the United States notified the City that it had concluded that the City had violated RLUIPA and intended to file suit, and offered the City an opportunity to negotiate a resolution. In September 2018, the City and the Islamic Association entered into a separate agreement allowing for the approval of the cemetery and in December 2018, the City approved the Islamic Association’s application to develop the land as a cemetery.

Here is the complaint in United States v. City of Farmersville, Texas, (ED TX, filed 4/16/2019) filed yesterday as part of the negotiations.

Parents Sue Prominent DC Synagogue Over Child Abuse of Pre-Schoolers

Washington Post reports on a lawsuit filed Monday in D.C. Superior Court against a prominent Reform synagogue in D.C. Parents who brought the suit allege that at least seven children in the synagogue's preschool were sexually abused by a teacher for more than a year. The 239-page complaint filed against Washington Hebrew Congregation and Deborah Jensen, its director of early childhood education, does not include the teacher who is the alleged abuser as a defendant.  According to the Post:

The lawsuit states that the preschool teacher identified in the complaint was allowed to be alone with students despite city regulations requiring at least two adults to be present with toddlers in licensed child development centers. The school also did not properly train staff on ways to reduce the potential for child sexual abuse and to recognize signs that it may have happened, the lawsuit alleges....

Within a month of the man beginning work at Washington Hebrew, teachers and parents reported to Jensen incidents of inappropriate behavior, according to the lawsuit. The alleged behavior included being late returning students when he was alone with them and not responding to co-workers who were looking for him while he was with students.

The lawsuit states that when an adult reported potential abuse to Jensen, the director said that the person reporting the potential abuse had a “sick mind” and that the teacher would never abuse children. Jensen did not investigate the incidents further, did not restrict the teacher’s access to children and did not report the allegations to city officials, according to the lawsuit.

How Did Government Action On Gay Marriage Affect Attitudes?

Courthouse News Service reports on interesting research posted yesterday at the Proceedings of the National Academy of Sciences (PNAS):

Researchers compared trends before and after state-level legalization of gay marriage in each state.

The study found the local legislation reduced antigay bias, even though biases against lesbian and gay people were already decreasing. States which legalized same-sex marriage experienced decreases in homophobia at a sharper rate – declining at roughly double the previous rate – after legalization, according to the study.

For the 15 states that didn’t pass laws legalizing same-sex marriage before it became federal law, Hehman and his research team found a “backlash effect” where homophobia increased in those states in the immediate aftermath after the Supreme Court ruling – despite a decreasing trend in anti-gay bias prior to Obergefell.

PNAS, in assessing the significance of the research, says in part that it indicates "government legislation can inform attitudes even on religiously and politically entrenched positions."

New Report On Perceived Discrimination Against Various Groups

Yesterday the Pew Research Center released its 2019 report (full text) on the extent to which the American public perceives that there is discrimination against various discrete groups.  While surveying perceived discrimination against 9 different groups, the report headlines increasing discrimination against Jews:

Today, 64% of Americans say Jews face at least some discrimination – a 20-percentage-point increase from 2016; the share saying Jews face “a lot” of discrimination has nearly doubled, from 13% to 24%.

The report also finds that 82% believe that there is at least some discrimination against Muslims.  50% believe there is at least some discrimination against Evangelical Christians (a rise of 8% over 2016).

Parents Sue Over NY Vaccination Order; One Child Care Facility Ordered Closed

Yesterday five mothers of children who claim religious exemptions from vaccination requirements filed suit in a New York state trial court challenging last week's emergency order by the New York City Health Department requiring everyone living or working in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt. (See prior posting.)  The complaint (full text) in C.F. v. New York City Department of Health and Mental Hygiene, (Kings Cty. Sup. Ct., filed 4/15/2019) contends:

There is insufficient evidence of a measles epidemic or dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination. The Orders are, therefore, arbitrary, capricious, contrary to law and in violation of petitioners’ rights under the United States Constitution and New York State law.

The complaint also contends that the Order ignores the risk of harm from compulsory vaccination.  Courthouse News Service reports on the lawsuit.

Meanwhile yesterday New York officials ordered a child care center in Williamsburg closed for failing to provide the Health Department access to medical and attendance records showing that the school is excluding unvaccinated children. (New York Times; Yeshiva World News).

SCOTUS Hears Arguments On Immoral Trademarks

Yesterday the U.S. Supreme Court heard oral arguments in Iancu v. Brunetti (transcript of oral arguments). At issue is whether Sec. 2(a) of the Lanham Trademark Act that prohibits registration of a trademark that contains "immoral" matter is invalid under the free speech provisions of the 1st Amendment.  Here is the SCOTUSblog case page for the case linking to all the briefs and other pertinent material. Mark Walsh at SCOTUSblog describes the case as an introduction to his entertaining summary of oral arguments:

The first case for argument today involves the highly provocative trademark, “FUCT,” for a line of “streetwear” founded by Erik Brunetti in California in 1990.

Washington Post also reports on the oral arguments.

Catholic Agency Sues Michigan Over Adoption Agency Non-Discrimination Policy

As previously reported, last month Michigan Attorney General Dana Nessel announced that the state has entered into a settlement agreement that calls for the state to enforce non-discrimination provisions in agreements with foster care and adoption agencies.  The settlement applies to any agency contracting with the state that discriminates against same-sex couples or LGBTQ individuals otherwise qualified as foster care or adoptive parents.  Yesterday suit was filed in a Michigan federal district court by a Catholic adoption and foster care agency, and by some of its clients, challenging Michigan's new policy.  The complaint (full text) in Buck v. Gordon, (WD MI, filed 4/15/2019), contends that the new policy violates plaintiffs' 1st and 14th Amendment rights as well as RFRA. The Federalist reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Christian Legislative Prayers and Christian Nationalism, (Washington and Lee Law Review, Vol. 75, 2019).
• Christopher C. Lund, Martyrdom and Religious Freedom, (Connecticut Law Review, Vol. 50, p. 959, 2018 (symposium)).
• Levi Cooper, Polish Hasidism and Hungarian Orthodoxy in a Borderland: The Munkács Rabbinate, (Polin: Studies in Polish Jewry 31 (2019): 199-223 [pre-publication version]).
• Brendan Thomas Beery, Free Exercise Standing: Extra-Centrality As Injury In Fact, (St. John's Law Review, Forthcoming).
• Doug Magendanz, Church Power, Sovereignty and Freedom of Religion in Thomas Hobbes, (March 19, 2019).
• G. V. Mahesh Nath, Constitutional Morality - A Need for Consensus on the Concept, (March 16, 2019).
• Barton Beebe & Jeanne C. Fromer, Immoral or Scandalous Marks: An Empirical Analysis, (April 4, 2019).

From SmartCILP:

• Ann E. Blankenship-Knox & Brett A. Geier, Taking A Day Off to Pray: Closing Schools for Religious Observance in Increasingly Diverse Schools, 2018 BYU Education & Law Journal 89-139.
• Religious Exemptions and Harm to Others. Articles by Gary J. Simson, Carl H. Esbeck, Eric Segall, Arnold H. Loewy, Elizabeth Sepper, Christopher C. Lund, William P. Marshall, Kathleen A. Brady, Catherine A. Hardee, Micah Schwartzman, Nelson Tebbe, Richard Schragger. 106 Kentucky Law Journal 535-812 (2017-2018).
• John Eidsmoe, Those Ten Commandments: Why Won't They Just Go Away?, 31 Regent University Law Review 11-29 (2018-2019).
• Rodney W. Harrell, State Religious Free-Exercise Defenses to Non-Discriminatory Laws: Still Relevant fter Masterpiece Cakeshop, 87 UMKC Law Review 297-333 (2019).
• Stephen M. Feldman, Having Your Cake and Eating It Too? Religious Freedom and LGBTQ Rights, 9 Wake Forest Journal of Law & Policy 35-62 (2018).

Transgender Bathroom Issue In High School Leads To Protest and Reaction

The ongoing issue in public schools of allowing transgender students to use bathrooms of their choice has now created issues of how to treat student protests, self-help, and reactions to them. AP reports that a group of some seven boys at Alaska's North Pole High School went into the girl's bathroom to protest the use of the boys' bathroom by a transgender student who is transitioning from female to male.  A girl who was blocked from leaving the girl's bathroom kneed one of the seven boys, injuring him enough that he was sent to a hospital.  The girl was suspended from school and the seven boys were also disciplined.

DOJ Drops Appeal In FGM Case; Proposes Amendments To Federal Statutory Ban

AP reports that the Department of Justice has dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, saying it is not a commercial activity; it is a local criminal activity which should be left to the states to regulate. (See prior posting.) In a letter (full text) sent to Congress last Wednesday, Solicitor General Noel Francisco proposed amendments to the the federal law needed to assure its constitutionality:

[C]oncurrently with submitting this letter, the Department is submitting to Congress a legislative proposal that would amend Section 116(a) to provide that FGM is a federal crime when ( 1) the defendant or victim travels in or uses a channel or instrumentality of interstate or foreign commerce in furtherance of the FGM; (2) the defendant uses a means, channel, facility, or instrumentality of interstate commerce in connection with the FGM; (3) a payment is made in or affecting interstate or foreign commerce in furtherance of the FGM; (4) an offer or other communication is made in or affecting interstate or foreign commerce in furtherance of the FGM; (5) the conduct occurs within the United States' special maritime and territorial jurisdiction, or within the District of Columbia or a U.S. territory; or (6) the FGM otherwise occurs in or affects interstate or foreign commerce. In our view, adding these provisions would ensure that, in every prosecution under the statute, there is a nexus to interstate commerce.

The letter to the Senate Judiciary Committee was sent in compliance with 28 USC Sec. 530D which requires DOJ to report to Congress when it, among other things, decides not to appeal a decision affecting the constitutionality of a federal statute.

Retired Pope Benedict Weighs In On Clergy Sexual Abuse of Minors

This week, publications around the world published translations of an unusual essay from emeritus Pope Benedict XVI on the Church's clergy sex abuse crisis.  As reported by the Washington Post:

Breaking years of silence on major church affairs, Pope Emeritus Benedict XVI has written a lengthy letter devoted to clerical sex abuse in which he attributes the crisis to a breakdown of church and societal moral teaching and says he felt compelled to assist “in this difficult hour.”

The 6,000-word letter..., laments the secularization of the West, decries the 1960s sexual revolution and describes seminaries that became filled during that period with “homosexual cliques.”

The pope emeritus, in emphasizing the retreat of religious belief and firm church teaching, provides a markedly different explanation for the abuse crisis than that offered by Pope Francis, who has often said abuse results from the corrupted power of clergy.

Catholic News Agency has published the full text in English.

New York Legislature Passes Bill To Bar Employment Discrimination Based On Religious Attire

The New York State Legislature on Tuesday gave final passage to A4024 (full text) which adds to the state's anti-discrimination law a specific ban on employment discrimination because of a person's attire, clothing, or facial hair worn in accordance  with  the requirements  of  his  or her religion. The employer is excused from this obligation if reasonable accommodation is impossible. AP, reporting on the passage of the bill, says it was particularly supported by a coalition of Sikh houses of worship. [Thanks to Blog from the Capital or the lead.]

UPDATE: New York Gov. Andrew Cuomo signed the bill on Aug. 9.

EEOC 2018 Data Released

The EEOC yesterday released its 2018 Fiscal Year 2018 Enforcement and Litigation Data.  During the fiscal year, he EEOC resolved 90,558 charges of discrimination and retaliation. Of these, 2,859 (3.7%) involved charges of religious discrimination.

Judge Overrules Jury Saying No Religious Discrimination By Homeowners Association Was Shown

In Morris v. West Hayden Estates First Addition Homeowners Association, Inc., (D ID, April 4, 2019), an Idaho federal district judge enjoined a Christian couple from hosting an elaborate Christmas display that violates Homeowner Association Rules. As described by the Spokane Spokesman-Review's report on the decision:

On one side, a devoutly Christian couple throwing extravagant celebrations for thousands at a home decked to the halls with 200,000 light bulbs. At times, even featuring a camel and donkey to re-create the Nativity scene.

On the opposite side, a Hayden homeowners association with specific rules that prohibited such excessive celebrations – and the noise that follows – in favor of a more modest showing of holiday spirit.

Despite a jury verdict in favor of plaintiffs, the court ruled as a matter of law that plaintiffs had not shown that the Homeowners Association discriminated against them on the basis of religion in violation of the Federal Fair Housing Act.  Plaintiff had pointed to a letter from the Homeowners Association which described rule violations that would be involved in the Christmas display.  The letter added that some of the subdivision residents are non-Christians.  The court said in part:

While January 2015 Letter was not drafted with lawyerly precision and contained a boorish reference to “undesireables,” it cannot be read as evidence that the Homeowners Association intended to discriminate against Plaintiffs because they were Christian. On this score, the Court notes that several members of the Board were practicing Christians. Furthermore, Board President Jennifer Scott is both a practicing Christian and married to a Christian minister. The Court is not suggesting that Christians cannot, per se, discriminate against other Christians. But, the fact that the Board was at least partially composed of practicing Christians significantly decreases the probability that the Board intended to discriminate against Plaintiffs based on a faith shared by both Plaintiffs and several Board members.

The court concluded that the jury was likely prejudiced by testimony which they were instructed to ignore relating to threats received by plaintiffs from other homeowners who were not Association board members.  Because the decision is likely to be appealed, the court held that if its conclusion of law was reversed, defendants should be granted a new trial or alternatively the jury's award of $75,000 in damages should be reduced to $4.

Anti-Vax Movement Targets Ultra Orthodox Jews In New York

The New York Times in an article posted yesterday reports on the ways in which the anti-vaccination movement, particularly an organization known as Parents Educating and Advocating for Children's Health ("Peach"), is targeting ultra-Orthodox Jews in New York:

Peach’s handbook — with letters signed by rabbis and sections like “Halachic Points of Interest” — has become one of the main vehicles for misinformation among ultra-Orthodox groups, including Hasidim. Its message is being shared on hotlines and in group text messages.....

The majority of ultra-Orthodox rabbis said they ... urged vaccination, citing religious scripture about protecting one’s health and the health of others.

But all of that has not been enough to persuade vaccine skeptics....

Some Hasidim have said that longstanding tension between members of the ultra-Orthodox community and the government have made them wary of officials’ efforts to contain the outbreak.

The past persecution of the Jewish people is still a factor, they said. And more recently, quarrels with secular leaders over a circumcision ritual that has transmitted fatal herpes infections to infants and the government’s oversight of ultra-Orthodox Jewish private schools known as yeshivas have only soured relations.

In Settlement Airbnb Agrees To Allow Listing of West Bank Properties

In a press release yesterday, an Israeli civil rights group announced a settlement in  Sliber v. Airbnb, one of a number of suits challenging Airbnb's decision to delist rentals in Israeli settlements in the West Bank. (See prior posting). Apparently the policy was neverin fact implemented.  Under the Settlement Agreement (full text) Airbnb will modify it policies to allow listings of all properties in the area, subject to its Terms of Service.  Sidestepping conflicting claims over claims to the West Bank, the Settlement Agreement says in part:

Airbnb takes on position on the Host-Plaintiffs' claims, or others claims, to legal title to the properties on which the accommodations are located and its standard Terms of Service requires that every Host agree and warrant not to offer any accommodation on Airbnb's platform that the Host does not own or have permission to make available for booking.