Recent Articles of Interest

 From SSRN:

• Jake Young, Qualified Immunity and Religious Liberty (December 10, 2020).
• Marc O. DeGirolami, Reconstructing Malice in the Law of Punitive Damages,14 Journal of Tort Law (Forthcoming).
• Louis E. Wolcher, The Time of Religion and Human Rights, (Journal of Human Rights, Vol. 14, No. 2, Pp. 137-82 (Fall 2019–Winter 2020)).
• Raphael Cohen-Almagor, Taking Profound Offence Seriously: Freedom of Speech v. Human Dignity, (Journal of Hate Studies, Vol. 16(1) (2020): 1–11).
• Husam Suleiman, Defining 'Islamic Finance' ,(October 29, 2020).

From SmartCILP:

• Bill Raley, How Conscientious Objectors Killed the Draft: The Collapse of the Selective Service during the Vietnam War, 68 Cleveland State Law Review 151-171 (2020).
• Winston Bowman, Feat of Clay: Muhammad Ali's Legal Fight against the Vietnam Draft, [Abstract], 44 Journal of Supreme Court History 307-324 (2019).

Supreme Court Wil Hear Challenge To California Donor-Disclosure Requirement

The U.S. Supreme Court on Friday granted certiorari in Thomas More Law Center v. Becerra (Docket No. 19-255, cert. granted 1/8/2021) and Americans for Prosperity Foundation v. Becerra (Docket No. 19-251, cert. grange 1/8/2021) (Order List), and consolidated the cases for oral argument.  At issue is a California administrative rule requiring non-profit organizations that wish to solicit tax deductible contributions in the state to file an annual report that includes an unredacted IRS Form 990 Schedule B. That Schedule contains the names and contributions of significant donors. Thomas More Law Center, which describes itself in its petition for certiorari as a non-profit organization that defends religious freedom, family values, and the sanctity of life, argues in its cert. petition:

For those associated with charities that speak on contentious matters—like Petitioner the Thomas More Law Center (the “Law Center”)—disclosing donor information to the Attorney General’s Registry poses an imminent danger of hate mail, violence, ostracization, and boycotts. Only the most stalwart supporters will give money under such a toxic cloud. Most will reasonably conclude that the risk of association is too great, with the result that groups who make the most threats will effectively shut down those with whom they disagree.

See prior related posting. SCOTUSblog case pages (1, 2) for the cases have links to all the pleadings and related materials.

Ministerial Exception Applies To Title IX Hostile Work Environment Claims

In Koenke v. Saint Joseph's University, (ED PA, Jan. 8, 2021), a woman employed by a Catholic university sued under Title IX claiming sexual orientation discrimination.  The court held that the Supreme Court's Bostock decision should be read to apply to sexual orientation discrimination under Title IX as well as under Title VII. All the parties agreed that plaintiff's position as Assistant Director for Music and Worship was a "ministerial" position for purposes of the ministerial exception. However plaintiff claimed that the ministerial exception does not apply to non-tangible employment discrimination claims such as hostile work environment.  The court disagreed, saying in part:

[H]ostile work environment claims, particularly those brought pursuant to Title VII or Title IX, clearly fall within the scope of cases banned by the ministerial exception.... The Supreme Court has not cabined the ministerial exception to tangible or intangible employment actions, and it is not for this Court to create such an exception to binding precedent.

HHS Adopts Amended Rules Reducing LQBTQ Anti-Discrimination Protections

The Department of Health and Human Services yesterday adopted final rules (full text of Release adopting rules) which narrow LGBTQ non-discrimination protections.  Previously, 45 CFR 75.300(c) barred discrimination on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation in receiving benefits of HHS programs or in administering funded programs. The newly amended rule instead reads:

It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.

Previously 45 CFR 75.300(d) required grant recipients to treat same-sex marriages as valid. The newly amended rule instead reads:

HHS will follow all applicable Supreme Court decisions in administering its award programs.

In its 86-page release adopting the rule, HHS said that enforcing the prior rule may violate the Religious Freedom Restoration Act. ADF issued a press release announcing the adoption of the new rules. Americans United issued a press release criticizing the new rule.

Religious Leaders React To Storming Of Capitol By Trump Supporters

Religion News Service has published excerpts from separate statements from over 20 faith leaders across the country reacting to the storming of the U.S. Capitol yesterday by supporters of President Trump who were seeking to stop certification of Electoral College votes. For example, Southern Baptist Convention President J.D. Greear said:

Peaceable transitions of power have marked our Republic since the beginning. It is part of honoring and submitting to God’s ordained leaders whether they were our choice or not. We need you, @POTUS to condemn this mob. Let’s move forward together. Praying for safety.

Texas Supreme Court Hears Oral Arguments In Ecclesiastical Abstention Case

The Texas Supreme Court yesterday heard oral arguments in Diocese of Lubbock v. Guerrero, consolidated for argument with In Re Diocese of Lubbock. (Video of oral arguments.) The court's website describes the case:

In this defamation case by a deacon among a list of clergy published on the church website and in a press release, the issues are (1) whether the ecclesiastical-abstention doctrine bars the libel claim when a church internally decides to disclose inside information to the public at large and (2) whether Guerrero, the deacon, presented clear and specific evidence establishing a prima facie case of each element of his defamation claim.

Links to the pleadings and briefs in the cases can be found here and here. Courthouse News Service reports on the oral arguments.

Massachusetts COVID Requirements For Church Services Upheld

In Delaney v. Baker, (D MA, Jan. 6, 2021), a Massachusetts federal district court rejected plaintiff's claims that COVID-19 orders imposing maximum occupancy limits and requiring a mask and social distancing at Catholic religious services, as well as more general mask requirements, violate his free exercise rights. The court held that plaintiff's claims as to restrictions at religious services should be dismissed for lack of standing:

Delaney’s ... challenge ... that his First Amendment right to freely exercise his religion is infringed by the maximum occupancy limits, fails.... This injury is not concrete and particularized, nor is it actual or imminent.... The joint finding is devoid of any evidence that Delaney was ever denied access to his parish church, let alone that such a denial was due to Governor Baker’s occupancy limit....Delaney also argues that the mask mandate violates his religious beliefs and therefore his First Amendment right to the free exercise of his religion and that the social distancing guidelines for churches are an affront to the free exercise of his religion.... Setting aside, for a moment, the mask mandate outside of Delaney’s parish, the mask mandate within his parish and Delaney’s injury from the social distancing guidelines within his parish fail to allege a redressable injury.... Delaney is claiming that Governor Baker’s orders are the cause of his parish’s protocols which are infringing on the exercise of his religion.... There is no evidence, however, that the Archdiocese instituted its protocols only because of Governor Baker’s orders, and even had it done so, there is no evidence that a favorable ruling would result in redress of Delaney’s injury....

As to the more general mask requirement, the court said in part:

Governor Baker’s orders for all residents to wear masks are rationally related to the interest in stemming the spread of COVID-19 because, as the parties stipulated in the joint finding, “[i]t has been proven that the wearing of masks can slow the transmission of the spread of the coronavirus.”....

Delaney’s challenge suffers the same fate under the more deferential Jacobson standard.

Rules For Possessing Coyotes Survive Free Exercise Challenge

In Tranchita v. Callahan, (ND IL, Jan. 5, 2021), an Illinois federal district court rejected an attempt by a wildlife educator who cares for orphan coyote pups to recover a coyote taken from her by the Illinois Department of Natural Resources. The Department insists that the breeder must hold a hound running area permit in order to legally possess the coyote. Plaintiff claims, among other assertions, that the permit requirement violates her free exercise of religion rights:

Tranchita contends that it is her religious belief that she must “‘do unto others as [she] would have them do unto [her],’” that this belief “extends to animals as well as humans,” and that running hounds after coyotes violates this belief.

All the parties agreed that the permit requirement is neutral and generally applicable. The court then concluded:

Because the Hound Running Permit requirement is neutral and generally applicable, the Court must next ask whether the requirement “is rationally related to a legitimate government interest.”... And it is here that Tranchita fails to show a likelihood of success on the merits. No matter how tame a coyote may seem, it is still a wild animal that could pose danger to other animals (such as pets) and people if it were to escape from its enclosure in a densely populated area. Illinois has a legitimate interest in trying to prevent such situations from occurring, and it may do so through regulating who can possess coyotes and where.

American Atheists Release Report On 2020 Legal Developments

Yesterday, American Atheists released a report titled 2020 State of the Secular States (full text). Assessing last year's developments, the 88-page report says in part:

Although state legislation did not significantly impact religious equality in 2020, that same cannot be said for the courts. We saw fundamental changes to the law of church-state separation in the courts this year, most of it extremely negative from a separationist perspective. The U.S. Supreme Court all but struck down the numerous state constitutional protections that limit the flow of public money to religious private schools, while at the same time greatly expanding the ability of religious organizations to evade nondiscrimination protections. And the lower courts granted exemption after exemption to religious organizations, allowing them to meet even in defiance of emergency restrictions by state governors, even at risk to public health.

The report describes its approach to analyzing last year's developments:

This report identifies four categories of public policy in each state that affect religious equality: Constitutional & Nondiscrimination Protections, Education & Youth, Health Care & Wellness, and Special Privileges for Religion. We assess nearly 50 related law and policy measures in each state as well as Puerto Rico and the District of Columbia. The states have been grouped into three broad categories, but they have not been individually ranked.

Religious Affiliation of New Congress Survyed

Pew Research Center yesterday published its survey of the religious affiliation of members of the new 117th Congress. Of the 98 Senate seats and the 433 House seats that were filled as of yesterday, 294 members are Protestant, 158 are Catholic, and 33 are Jewish. Smaller numbers are Mormon (9), Orthodox Christian (7), Muslim (3), Unitarian Universalist (3), Buddhist (2), Hindu (2), Unaffiliated (1).

DC Church Sues Proud Boys For Over Racist Vandalism

An historic Black church in Washington, DC filed suit yesterday against the Proud Boys, its chairman Enrique Tarrio, and members of the organization, seeking damages and declaratory relief for vandalizing of the church.  The complaint (full text) in Metropolitan African Methodist Episcopal Church v. Proud Boys International, L.L.C., (DC Super. Ct., filed 1/4/2021), alleges in part:

1. On December 12, 2020, hundreds of members of the Proud Boys, an all-male group with ties to white nationalism and a pronounced history of violence, traveled to Washington D.C. for the purpose of committing further acts of violence intended to intimidate and silence individuals and organizations that support racial justice.

2. Arriving in droves from around the country, they created a violent riot in Washington, D.C., committed brutal assaults against protestors and passersby, destroyed property, and silenced peaceful speech by tearing down, igniting, and otherwise destroying signs and banners supporting the Black Lives Matter movement.

3.... Metropolitan AME, like other nearby churches showing support for the Black Lives Matter movement, was terrorized through coordinated acts of violence when Proud Boys members climbed over a fence surrounding the Church, came on to the Church’s property and destroyed a large Black Lives Matter sign the Church was proudly displaying.... 

The suit alleges conversion, trespass, violations of the D.C. Bias-Related Crime Act of 1989, and the Freedom of Access to Clinic Entrances Act that prohibits damaging or destroying property of a house of worship. Lawyers Committee for Civil Rights issued a press release announcing the lawsuit. Miami Herald reports on the suit.

Meanwhile (according to AP), yesterday Tarrio returned to D.C. in advance of the protests planned for Wednesday when Congress certifies Electoral College results. He was promptly taken into custody under an arrest warrant issued in connection with the December 12 incident. He also will likely face weapons charges since officers found two high-capacity firearm magazines in his custody when he was arrested.

[Thanks to Michael Lieberman for the lead.]

Stalking Suit Against Church of Scientology and Actor Must Go To Arbitration

Variety  and Vanity Fair report on an Order issued on Dec. 27 by a Los Angeles Superior Court trial judge in a civil suit brought by several women against actor Danny Masterson and the Church of Scientology. The court held that the suit must be arbitrated through the Church of Scientology because of an existing arbitration between the parties. As summarized by Vanity Fair:

The suit was initially filed in August 2019 by Chrissie Carnell Bixler; her husband, Cedric Bixler-Zavala; Marie Bobette Riales; and two Jane Does. It claims that agents working for the church stalked and intimidated them after they reported assault allegations against Masterson [a member of the Church of Scientology] to the police....

Carnell Bixler claims in the lawsuit that Masterson sexually assaulted her multiple times while they were dating in 2001 and 2002. After she reported the assault to the police, her husband alleges in the suit, “agents of the defendants” poisoned their dogs, assaulted them with cars, and made harassing phone calls.... The judge’s ruling will not apply to plaintiff Bobette Riales as she was not a member of the Church of Scientology.

9th Circuit Hears Oral Arguments in Harvest Rock Church Appeal

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of arguments) in Harvest Rock Church v. Newsom. In the case, a California federal district court, on remand from the U.S. Supreme Court, upheld California's COVID restrictions on houses of worship. (See prior posting.) Plaintiffs then asked the 9th Circuit for an emergency injunction pending appeal. (Links to briefs and supplemental briefs filed in the 9th Circuit.) That motion was the subject of yesterday's arguments.

Recent Articles of Interest

 From SSRN:

• Sherif Girgis, Fragility, Not Superiority: "Substantial Burdens" on Religion and the Fairness of Special Protections, (September 1, 2020).
• Mark Bell, Fratelli Tutti: Pope Francis' Encyclical and Implications for Labour Law, (UK Labour Law Blog, 10/22/2020).
• Mark Bell, Bridging a Divide: A Faith-Based Perspective on Anti-Discrimination Law, ((2020) 9 Oxford Journal of Law and Religion 56-78).
• Cass R. Sunstein, Our Anti-Korematsu, (December 29, 2020).

6th Circuit: County COVID Order Closing All High Schools Infringes Parochial Schools' Rights

In Monclova Christian Academy v. Toledo-Lucas County Health Department, (6th Cir., Dec. 31, 2020), the U.S. 6th Circuit Court of Appeals granted an injunction pending appeal against enforcement of a health department order prohibiting in-person attendance for Grades 7-12 at the nine Christian and Catholic schools bringing suit. The health department order imposed the same restrictions on public and secular private schools in the Ohio county. The court held that in deciding whether religious schools are treated less favorably than comparable secular activities, it is not enough that secular schools are treated in the same manner:

In Lucas County, the plaintiffs’ schools are closed, while gyms, tanning salons, office buildings, and the Hollywood Casino remain open. Cuomo makes clear that those secular facilities are “comparable” for purposes of spreading COVID-19. 141 S. Ct. at 66; see also, e.g., Roberts, 958 F.3d at 414. The Resolution’s restrictions therefore impose greater burdens on the plaintiffs’ conduct than on secular conduct.

The court also rejected the state's argument that the schools' exercise of religion was not burdened because the order allowed the schools to open for religious education classes and religious ceremonies. The court said in part:

... [N]o one argues that the Department has targeted the plaintiffs’ schools or acted with animus toward religion here. But the plaintiffs argue that the exercise of their faith is not so neatly compartmentalized. To the contrary, they say, their faith pervades each day of in-person schooling.... We have no basis to second-guess these representations.... The Department’s closure of the plaintiffs’ schools therefore burdens their religious practice.

Josh Blackman at Volokh Conspiracy reports on the decision.

Christian After-School Program Employee Not Covered By Unemployment Insurance

In By the Hand Club for Kids, NFP, Inc. v. Department of Employment Security, (IL App., Dec. 30, 2020), an Illinois state appellate court held that an organization that operates a Christ-centered after-school program to aid students is exempt from the Illinois Unemployment Insurance Act. The organization assists students with homework, provides tutoring and literacy program, health services and a meal program. It also provides chapel services and Bible reading. The court concluded that the organization is "operated primarily for religious purposes." Thus the court denied  an unemployment compensation claim by the group's former human resources director.  ADF issued a press release announcing the decision.

Happy New Year 2021!

Dear Religion Clause Readers:

Happy New Year 2021! I hope you find Religion Clause a valuable resource in following the intersection of religion with law and politics. At a time in which factual accuracy is increasingly the victim of ideology, I hope that Religion Clause has built a reputation for reliability.  I strive for objectivity in my posts, and provide extensive links to the primary sources underlying each post for those who wish to fact check or explore more deeply the developments I highlight.

I am pleased that my regular readers span the political and religious spectrum and include law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

We have all endured one of the most trying years in our lives because of the unprecedented Coronavirus pandemic.  Perhaps surprisingly, the earliest pandemic-related litigation has been dominated by religious liberty disputes.  Governors and courts have been placed in the uncomfortable position of having to decide, for example, whether congregate prayer is as essential as in-person grocery shopping. The coming months may see another round of religious liberty litigation surrounding the roll-out of COVID vaccines if, as seems likely, employers, airlines, schools and others begin to mandate vaccinations.

2021 brings a reconstituted Supreme Court and a new Administration which face ongoing as well as newly-developing religious liberty controversies.  In the past year, many of the most highly charged issues that divide our country politically have continued to divide it along religious lines.  This reality creates difficult challenges for the Supreme Court as well as for the other branches of government.

All of this illustrates the saliency of religion in life, law and politics in the U.S. and around the world. Religion Clause will continue to cover all the legal developments in these areas.  

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes as you face the challenges that 2021 brings to us!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

May you have a healthy 2021,

Howard Friedman

Argentina Legislature Votes To Legalize Early Term Abortion

As reported by NPR, Argentina's Senate yesterday voted 38-29 (with one abstention) to approve the Voluntary Interruption of Pregnancy Bill which allows abortions during the first 14 weeks of pregnancy. The Chamber of Deputies, the lower house of  Argentina's Congress, approved the bill on Dec. 11 by a vote of 131-117 (with 6 abstentions). Argentine President Alberto Fernández says he will sign the bill. Last month, Pope Francis wrote opponents of the bill expressing his opposition to the legislation. (ABC News).

President Trump Issues Proclamation Recognizing Anniversary of Martyrdom of St. Thomas Becket

Earlier this week, President Trump issued a lengthy Proclamation (full text) recognizing Dec. 29th as the 850th Anniversary of the Martyrdom of Saint Thomas Becket. The Proclamation reads in part:

Before the Magna Carta was drafted, before the right to free exercise of religion was enshrined as America’s first freedom in our glorious Constitution, Thomas gave his life so that, as he said, “the Church will attain liberty and peace.”...

When the Archbishop refused to allow the King to interfere in the affairs of the Church, Thomas Becket stood at the intersection of church and state. That stand, after centuries of state-sponsored religious oppression and religious wars throughout Europe, eventually led to the establishment of religious liberty in the New World....

As Americans, we were first united by our belief that “rebellion to tyrants is obedience to God” and that defending liberty is more important than life itself. If we are to continue to be the land of the free, no government official, no governor, no bureaucrat, no judge, and no legislator must be allowed to decree what is orthodox in matters of religion or to require religious believers to violate their consciences....

To honor Thomas Becket’s memory, the crimes against people of faith must stop, prisoners of conscience must be released, laws restricting freedom of religion and belief must be repealed, and the vulnerable, the defenseless, and the oppressed must be protected.

Trump Executive Order Provides School Choice Funding For Disadvantaged Students Lacking In-Person Schools

President Trump yesterday issued an Executive Order allowing states to use funds from Community Services Block Grants to provide scholarships to private or parochial schools, or for home schooling or or other educational services, for disadvantaged students whose public schools do not offer in-person classes during the COVID pandemic. As reported by Politico:

The move comes after the $900 billion coronavirus relief deal ... that Trump signed on Sunday excluded many of the school choice provisions that his administration and GOP lawmakers had sought to include in that sweeping legislation.

The Dec. 28 Executive Order on Expanding Educational Opportunity Through School Choice (full text) provides in part:

The Secretary of Health and Human Services shall take steps, consistent with law, to allow funds available through the Community Services Block Grant program to be used by grantees and eligible entities to provide emergency learning scholarships to disadvantaged families for use by any child without access to in-person learning.  These scholarships may be used for:

(i)    tuition and fees for a private or parochial school;

(ii)   homeschool, microschool, or learning-pod costs;

(iii)  special education and related services, including therapies; or

(iv)   tutoring or remedial education.