Recent Articles of Interest

From SSRN:

• Matthew Brown, Masterpiece Cakeshop: A Formula for Legislative Accommodations of Religion, (Akron Law Review, Forthcoming).
• Rory D. Bahadur, Newsworthiness as an Internet-Era Mitigant of Implicit Bias, (University of Missouri-Kansas City Law Review, Vol. 88, No. _, 2019, Forthcoming).
• Nadia N. Sawicki, The Conscience Defense to Malpractice, (California Law Review, 2020 Forthcoming).
• Elizabeth A. Brown, Inara Scott & Eric D. Yordy, R Corps: When Should Corporate Values Receive Religious Protection? , (Berkeley Business Law Journal, Forthcoming).
• Ryan T. Anderson, Challenges to True Fairness for All: How SOGI Laws Are Unlike Civil Liberties and Other Nondiscrimination Laws and How to Craft Better Policy and Get Nondiscrimination Laws Right, (Religious Freedom, LGBT Rights, and The Prospects for Common Ground (William Eskridge, Jr. and Robin Fretwell Wilson eds., Cambridge University Press, 2019).
• Paul Horwitz, Honor, Oath, and Office, (Capstone Lawyer (2019)).

From SSRN (non-U.S. law):

• M. Mohsin Alam Bhat, 'Muslim Caste' Under Indian Law: Between Uniformity, Autonomy and Equality, (Quaderni Di Diritto E Politica Ecclesiastica 20. Speciale (2017): 165-190).
• Jeroen Temperman, Education and Freedom of Religion or Belief under the European Convention on Human Rights and Protocol No. 1, (Jeroen Temperman, Jeremy Gunn, Malcolm Evans (eds.), The European Court of Human Rights and the Freedom of Religion or Belief: The 25 Years since Kokkinakis (Leiden: Brill, 2019), pp. 178–208).
• Jianlin Chen & Junyu Loveday Liu, Managing Religious Competition in China: Regulating Provisions of Charitable Activities by Religious Organizations, (in Regulating Religion in Asia: Norms, Modes and Challenges 207-230 (Jaclyn L. Neo, Arif A. Jamal, & Daniel P.S. Goh eds., Cambridge University Press 2019)).
• Douglas Castro, The (Un)practical Secularization Process: International Law and Religion as Social Realities, (Brazilian Journal of International Law, v.15, n.33, 2018, p.33-48).

From SmartCILP:

• Carlo A. Pedrioli, Pope Francis, Poverty, and the Third Persona, [Abstract], 21 Journal of Gender Race & Justice 367-393 (2018).
• Maria Bhatti. The Role of Shari'a in International Commercial Arbitration, 36 Wisconsin International Law Journal 46-86 (2018).

Gary Bauer Appointed To Additional Term On USCIRF

Last week, President Trump announced the appointment of Gary L. Bauer for an additional two-year term as a member of the U.S. Commission on International Religious Freedom. Bauer was initially appointed to USCIRF in 2019. He is President of American Values and Washington Director of Christians United for Israel Action Fund.

Transgender Student May Intervene In Suit Between Prof and University

In Meriwether v. Trustees of Shawnee State University, 2019 U.S. Dist. LEXIS 78771 (SD OH, May 9, 2019), an Ohio federal district court allowed a transgender student and an advocacy organization representing LGBTQ students to intervene in a lawsuit brought by a faculty member against the university over the university's enforcement of its non-discrimination policy.  The university disciplined plaintiff, a philosophy professor, for violating its policy that requires faculty to refer to students using pronouns consistent with the student's self-asserted gender identity. Plaintiff sued claiming that:

He is a "professing evangelical Christian" and member of the Presbyterian Church of America with sincerely-held religious beliefs about gender, and he does not believe that an individual's gender can be changed after the moment of conception. Because of his sincerely-held religious beliefs, he objects to communicating what he believes to be "a University-mandated ideological message regarding gender identity" that he does not believe and which "contradicts (and would force him to violate) his sincerely held religious beliefs."

In allowing intervention by the petitioners. the court found that the University will not adequately represent petitioners' interests, saying in part:

Shawnee State argues only that the Non-discrimination Policy challenged by plaintiff is a neutral rule of general applicability that is part of its obligations under Title IX and Title VII, not that the policy protects the rights of Doe and other transgender students.... Doe, the transgender student who filed the discrimination complaint which led to plaintiff's written warning, and SAGA, which represents transgender students like Doe, have an interest in insuring that Shawnee State's policies are construed and applied so as to protect their rights as transgender students. 

Court Properly Applied Neutral Principles In Dealing With Factional Dispute In Church

Nelson v. Brewer, (IL App., May 10, 2019), involved a dispute between two factions of a congregational church over control of the church, identity of its pastor and control of its property. The appellate court upheld the trial court's action under Sec. 112.55 of the Illinois Non-Profit Corporation Act appointing a custodian to secure the church's property and bring the church's corporate governance documents in to compliance with law. The court also, through a series of orders, provided for selection of a 5-person board for the church. The appellate court said in part:

We find the circuit court in this case properly applied the neutral principles of law as it found both parties have an equal right to PTC property and carefully applied section 112.55 of the Act to remediate the church’s corporate governance. The court specifically refused to issue an opinion as to who is the rightful pastor because that question is religious in nature. Instead the court limited its findings to corporate reorganization by examining PTC’s articles of incorporation, bylaws, other corporate governing documents, the land trust, and pertinent state statutes to resolve the matter.

Court Issues Permanent Injunction In RLUIPA Land Use Case

In Roman Catholic Archdiocese of Kansas City v. City of Mission Woods, (D KS, May 10, 2019), a Kansas federal district court issued a permanent injunction requiring the city of Mission Woods to approve the Catholic Archdiocese's land use application to allow it to convert a house next door to St. Rose Church into a meeting house.  In the case, a jury had found that the city violated the equal terms provisions of RLUIPA and awarded damages.  But the jury found for defendants on the Archdiocese's RLUIPA substantial burden and nondiscrimination claims, its First Amendment claims, and its Kansas state law claims. The court here held that, nevertheless, this amounts to success on the merits which supports the grant of an injunction. The court rejected defendant's argument that limited success on the merits is not enough to support an injunction.

Advocacy Group Is Critical of Pope's New Directive On Reporting of Sexual Abuse

As previously reported, yesterday Pope Francis issued an Apostolic Letter titled Vos Estis Lux Mundi setting out new procedures for mandatory reportingof sexual abuse to ecclesiastical authorities. The advocacy group ECA responded yesterday with a Statement (full text) critical of the Pope, saying the Letter "appears to be designed to make no significant or meaningful change in how bishops and the Vatican deal with cases of child sex crimes by priests." The Statement says in part:

First, there will continue to be no mandatory reporting requirements for sex abuse to civil authorities by priests and bishops and no penalties for failing to do so.... [T]he Vatican often claims that mandatory reporting cannot be done in certain countries. If this is the case, the Vatican needs to identify which countries this would entail and why an exemption from reporting is necessary in that country....

Second, the process of reporting, investigating and determining a case remains entirely secret and in-house with the local bishop who will remain in complete control of the investigative process and all the information....

Third, and maybe most significantly, nothing in the document establishes or enacts zero tolerance for sexual abuse by priests....

USCIRF Urges Trump Administration To Raise Religious Freedom In China Trade Talks

As White House trade negotiations with China continue, the U.S. Commission on International Religious Freedom today issued a release urging the Trump administration to discuss China’s persecution of religious communities with Chinese Vice Premier Liu He who is in Washington, DC for negotiations. USCIRF is particularly concerned with China's treatment of Uighur and other Muslims in Xinjiang. USCIRF Commissioner Gary Bauer said:

The communist Chinese government’s brutal campaign to ‘sinicize’ all religions is one of the worst abuses of religious freedom taking place today.  During these talks about our trade relationship with China, religious persecution and human rights more broadly must be on the table. This is about the right of every man and woman, whether Muslim or Buddhist or Christian or Falun Gong, to worship as he or she sees fit. At a time when the lives and freedoms of millions of Chinese people are under attack by their own government, we cannot, in good conscience, conduct trade negotiations with their leaders as if this didn’t matter.

Justice Department Supports Challenge To Vermont's Exclusion of Parochial Schools From College Program

Yesterday the U.S. Department of Justice filed a Statement of Interest (full text) in in A.M. v. French, (D VT, filed 5/9/2019). DOJ's filing supports the position of plaintiffs who are challenging the exclusion of religious private school students from Vermont's Dual Enrollment Program.  Under the program, high school students may take up to two courses at public or private colleges at state expense. However while public and other private schools and home schooled students are eligible, private religious school students are not. DOJ argues that this discriminates against students' religious expression. DOJ also issued a press release explaining its action.

Pope Francis Imposes New Reporting Procedures For Sex Abuse

Pope Francis today signed an Apostolic Letter titled Vos Estis Lux Mundi setting out new procedures for mandatory reporting to ecclesiastical authorities of sexual abuse of minors or vulnerable adults, of involvement with child pornography, and of interference with Church or civil investigations of abuse. Zenit has a summary, as well as the full text of the Pope's Apostolic Letter and the Vatican's accompanying statement, which says in part:

“Vos estis lux mundi” contains several innovative elements that aim to improve coordination between the dioceses and the Holy See. In particular, within a year all dioceses must establish stable and publicly accessible systems to report cases of sexual abuse and their cover up.

Furthermore, this Motu proprio obliges all clerics, as well as men and women religious, to report to the competent ecclesiastical authorities the abuses of which they become aware. The reported cases must thereafter be promptly verified and handled in accordance with canon law. As for reports regarding Bishops, the Motu proprio introduces procedural measures that, as a rule, charge the Metropolitan of the pertinent ecclesiastical Province with verifying what has been reported. Also established for the first time are time restrictions within which investigations must be carried out, as well as the procedures to be followed by the Metropolitan, who can make use of the specific professional contributions of the lay faithful.

Finally, the Motu proprio emphasizes the care of people harmed and the importance of welcoming them, listening to them and accompanying them, offering them the spiritual and medical assistance they need.

Vatican News reports on the new document. [Thanks to Tom Rutledge for the lead.]

Plaintiff Challenging Vaccination Requirements Contracts Chicken Pox

A high school senior who recently lost his attempt to enjoin enforcement of steps taken by a local Kentucky health department to control an outbreak of chicken pox at a Catholic high school has now come down with chicken pox, according to the Cincinnati Enquirer. Jerome Kunkel, who objects on religious grounds to the vaccine because it was originally produced using cells from an aborted fetus, had a religious exemption from vaccination requirements, as did most of his classmates at a conservative Catholic high school. Kunkel's lawyer said that about half of his clients have contracted the disease. He told them that contracting chicken pox, which creates immunity, was the quickest way to resolve their dispute with the county's extra-curricular and school attendance bans on student who are not immune.

Muslim Employees Sue Amazon Over Religious Accommodation and Discrimination

On Tuesday, Muslim Advocates filed a complaint (full text) with the EEOC charging that Amazon.com, Inc.'s Minneapolis facility discriminates against its Muslim Somali and east African workers. The complaint charges that, among other things, Amazon fails to reasonably accommodate employees' religious practices. It claims the company provides inadequate space and time for employees to pray, and does not accommodate Ramadan observance. Daily Caller reports on the lawsuit.

Data On Russia's Prosecution of Missionary Activity

Forum 18 reported this week:

At least 159 prosecutions of individuals and communities for violating Russia's "anti-missionary" restrictions under Administrative Code Article 5.26, Parts 3, 4 and 5 are known to have reached court in the calendar year 2018.

This marks a decrease in the overall number of such prosecutions compared with the first year of the legislation's implementation (2016-17), which appears to be primarily explained by the sharp drop in the number of cases against Jehovah's Witnesses, whose activities were outlawed as "extremist" by Russia's Supreme Court in 2017.

Forum 18 found 159 cases against 56 organisations and 103 individuals which reached court in 2018. Of these, 132 resulted in conviction, with 129 fines being imposed. 2018 saw a conviction rate of 90 per cent, compared with 82 per cent in 2016-17.

Here is a detailed list of the prosecutions.

New York's High Court OK's Removal Of Bishop Sheen's Remains To Illinois

New York's highest state court has dismissed sua sponte the appeal in In the Matter of Cunningham v. Trustees of St. Patrick's Cathedral, (NY Ct. App., May 2, 2019) (Order List). The decision allows the remains of the late Bishop Fulton J. Sheen to be removed from St. Patrick's Cathedral in New York and moved to Peoria, Illinois.  The move is seen by Sheen's heirs as the only way to advance the cause of sainthood for him. In a short opinion on March 5, 2019 (full text), New York's intermediate appellate court upheld the trial court's decision allowing exhumation. In its dismissal order last week, the Court of Appeals said that "no substantial constitutional question is directly involved." Peoria Journal Star reports on last week's court order.

Suit Challenges Bible Display At VA Hospital

Suit was filed yesterday in New Hampshire federal district court against a VA Medical Center challenging a lobby display that includes a Bible.  As described by an AP report on the lawsuit:

The Bible was carried by a prisoner of war in World War II and became part of the Missing Man Table honoring missing veterans and POWs at the entranceway of the Manchester VA Medical Center. The Department of Veterans Affairs said Tuesday the table was sponsored by a veterans group called the Northeast POW/MIA Network.

The complaint (full text) in Chamberlain v. Montoya, (D NH, filed 5/7/2019), contends that the display violates the Establishment Clause, saying in part:

Here, the placement of the Christian Bible in a locked case on the POW/MIA table puts forth the Christian beliefs of some, at the expense of the beliefs of non-Christians.

Plaintiffs in the lawsuit are represented by the Military Religious Freedom Foundation. while the Northeast POW/MIA Network is represented by First Liberty Institute.

Episcopal Parish's Suit Against Its Rector Is Dismissed

In Parish of St. Paul's Episcopal Church v. Kovoor, 2019 Conn. Super. LEXIS 714 (CT Super. Ct., April 10, 2019), a Connecticut state trial court dismissed a lawsuit brought by a Darien, Connecticut parish which was seeking to remove its Rector, Rev. George Kovoor, on the ground that he made material misrepresentations of his credentials when he applied for employment.  Prior to the filing of the lawsuit, the parent church had stepped in and attempted to resolve the dispute between the parish and Kavoor, ordering that each party take certain steps. When the parish failed to take the steps called for, the parent church dissolved the parish and converted it into a Worshiping Community under direct supervision of the Bishop. The court held that it must defer to the decisions of the parent Episcopal Church:

Neutral principals of law can be applied to church disputes. Herein the plaintiffs claim common-law employment contract law is such a neutral principle of law that should be applied. Applying those provisions would relitigate the three decisions already issued by the Episcopal Church as to the St. Paul's/Kovoor Rector situation. In this court's opinion that would cause the Superior Court to examine the internal workings and polity of the Episcopal Church in Connecticut....

The court finds the March 2016 employment relationship... is religious in nature. The court finds that adjudicating the particular claims and defenses in this case will require the court to intervene into a religious institution's exclusive right to decide matters pertaining to doctrine and/or its internal governance or organization.... 

This court finds that the nature of a relief being sought in this case would entangle the Superior Court of the State of Connecticut into matters of religious hiring, religious practices and church polity. The court notes that there is no claim in this litigation concerning the title to the real property currently occupied by the Worshipping Community and formerly by St. Paul's Parish of Darien, Connecticut.

Reporting on the decision Virture Online says that St. Paul's is now operating as a state-chartered ecclesiastical society, unconnected to the Episcopal Church.

Brunei Places Moratorium On Death Penalty Under Sharia Code; Will Ratify Torture Convention

Earlier this year, the Sultan of Brunei announced further implementation of Sharia law in his southeast Asian country, including implementation of the provisions in Syariah Penal Code Order, 2013 (SPCO) on stoning for the offences of adultery and homosexual sex. (See prior posting.) Now, according to a Bloomberg News report on Sunday, the Sultan has announced a further moratorium on implementation of the death penalty. Borneo Bulletin has published portions of the Sultan's television address delivered over the weekend:

As evident for more than two decades, we have practised a de facto moratorium on the execution of death penalty for cases under the common law. This will also be applied to cases under the SPCO, which provides a wider scope for remission.

As we are all aware, Brunei Darussalam has begun to fully implement the SPCO on April 3, 2019. This is our religious obligation to Allah the Almighty as an Islamic country. The aim of implementing the law is to uphold the objectives of Syariah which are to protect religion, life, lineage, property and intellect....

In upholding our international commitments and obligations on human rights, Brunei Darussalam will be ratifying the United Nations Convention Against Torture (UNCAT). Both the common law and the Syariah law are aimed to ensure peace and harmony of the country. They are also crucial in protecting the morality and decency of the public as well as respecting the privacy of individuals.

Ramadan Begins; President Sends Greetings

The Muslim holy month of Ramadan began in most countries, including the United States, yesterday (May 6).  As reported by the Khaleej Times, one country (Mali) began Ramadan on May 5, and ten countries began the holy month today (May 7). On Sunday (May 5) President Trump issued a Message (full text) sending greetings to all Muslims celebrating Ramadan, saying in part:

Throughout this month, we all have an opportunity to reflect on the blessings we have been given and to work toward greater fellowship with one another.  Together, in the spirit of Ramadan, we can achieve a more harmonious and respectful society.

Recent Articles of Interest

From SSRN:

• Noa Ben-Asher & Margot J. Pollans, The Right Family, (Columbia Journal of Gender and Law, Forthcoming).
• Cathi Choi, Protection Against Good Intentions: The Catholic Role in the Campaign to Ban Proxy Adoption, 1956–1961, (Journal of Policy History, 31(2), 242-272 (2019).
• James J. Friedberg, Yitz and Ishmael: A Drama in One Very Long Act, (Minnesota Journal of International Law, Vol. 28, 2019).
• Khaled A. Beydoun & Cyra Akila Choudhury, Islamophobia and the Law: Introduction, (Cyra Akila Choudhury & Khaled A. Beydoun, Islamophobia and the Law (Cambridge University Press 2019), Forthcoming).
• Zehra Valencia, Breyon Williams & Robert Pettis, Pride and Prejudice: Same-Sex Marriage Legalization Announcements and LGBT Hate-Crimes, (March 26, 2019).
• Katherine Macfarlane, Procedural Animus, (Alabama Law Review, Vol. 71, Forthcoming).
• Siti Ibrahim, et. al., Commitment in Waqf Development Through Cross-Sector Collaboration between Islamic Financial Institutions and State Islamic Religious Councils: Innovative Strategy of Value-Based Intermediation for Sustainability, (J. Fin. Bank. Review 4 (1) 29–35 (2019)).

From SmartCILP:

• Wedding Cakes, Religion, and Sexual Orientation Discrimination. Foreword by Paul M. Secunda; contributions by William D. Araiza, Scott R. Bauries, Richard Carlson, Marcia L. McCormick, Elizabeth Sepper, Jessica L. Roberts, Kerri Lynn Stone. 19 Marquette Benefits & Social Welfare Law Review 109-264 (2018).

British Parliament Debates Sharia Councils

On May 2, Britain's House of Commons debated the operation of Sharia Councils in the United Kingdom. (full text of debate). MP John Howell said in part:

Sharia councils provide a form of alternative dispute resolution.... Members of the Muslim community voluntarily consent to accept the religious jurisdiction of sharia councils. Marital issues and the granting of Islamic marriage divorces account for about 90% of their work. They also advise in matters ​of law, including issues of inheritance, probate and wills and Islamic commercial law contracts, and they provide mediation, counselling and religious ruling services.

Sharia councils are not considered part of the British legal system. They are not courts and their decisions are not legally binding. However, despite having no judicial authority, some councils see themselves as authoritative on religious issues, and the power of sharia councils lies in how they are perceived by their communities.

A significant number of Muslims do not have a marriage recognised under British law.... [S]ome Muslim women therefore have no option of obtaining a civil divorce. Some women may have no other option but to obtain a religious divorce, for which the judgment of a sharia council is normally required.

Law & Religion UK has a more extensive summary of the debate.

New Report On Payment of Church Taxes In Europe

Last week, the Pew Research Center released a new Report (full text) on public attitudes in European nations on the payment of church taxes, saying in part:

There is evidence that some Europeans are leaving the church tax system, but there does not appear to be a mass exodus. The survey finds that between 8% of adults (in Switzerland) and 20% (in Finland) say they have left their church tax system.... At the same time, majorities still support the tradition of paying taxes to religious institutions.