Religion Clause

Tuesday, March 12, 2019

DOE Will Not Enforce Ban On Religious Organizations As Contractors For "Equitable Services" Under Federal Grants

The Elementary and Secondary Education Act requires local educational agencies to include private schools in their federally funded programs to provide supplemental educational services to provide equitable, high-quality education for students from low-income families. School districts may contract with outside providers for various educational services, however under ESSA, the provider must be independent of any religious organization. In a press release yesterday, the U.S. Department of Education announced that this restriction would no longer be enforced, saying in part:

The U.S. Department of Education, in consultation with the U.S. Department of Justice, determined the statutory provisions in Section 1117(d)(2)(B) and 8501(d)(2)(B) of the Elementary and Secondary Education Act (ESEA) that require an equitable services provider to “be independent of … any religious organization” are unconstitutional because they categorically exclude religious organizations based solely on their religious identity.

These provisions run counter to the U.S. Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) that, under the Free Exercise Clause of the First Amendment of the U.S. Constitution, otherwise eligible recipients cannot be disqualified from a public benefit solely because of their religious character.

The Department will, however, continue to enforce the statutory requirement that the outside services being provided are "secular, neutral and non-ideological."

Cert. Filed In Universal Church Trademark Case

A petition for certiorari was filed on March 4 in Universal Church, Inc. v. Toellner. (Full text of petition at 2019 U.S. S. Ct. Briefs LEXIS 831). In the case, the U.S. Second Circuit Court of Appeals rejected a claim that the Universal Life Church had infringed the trademark of the Universal Church. In Universal Church, Inc. v. Toellner, (2d Cir. Nov. 2, 2018), the court held that the term "Universal Church" is generic in referring to religious counseling and evangelistic and ministerial services.

Suit Challenges Vaccination Order

The Rockland Westchester Journal News reports that a federal court lawsuit has been filed by parents of 44 students who attend Green Meadow Waldorf School in Chestnut Ridge, New York challenging the Rockland County Health Commissioner's order excluding unvaccinated children from schools. According to the paper:

The lawsuit states that Commissioner Dr. Patricia Schnabel Ruppert's order, imposed during the county's continuing measles outbreak, violates the families' religious objections to vaccinations and is unnecessary because the cases have been largely confined to insular Hasidic Jewish communities.

UPDATE: On March 12, a federal judge denied a temporary injunction that would have allowed the 44 students to return to classes. (Rockland Westchester Journal News).

Monday, March 11, 2019

Suit Challenges Washington State's Required Abortion Coverage

Last week, a church in Washington state filed suit in federal district court challenging the constitutionality of Washington Senate Bill 6219 signed into law last March which requires all health care plans in the state to cover contraceptives and sterilization, and to cover abortion to the same extent as they cover maternity care. The complaint (full text) in Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, filed 3/8/2019), alleges in part:

52. ... [T]his law targets organizations that have religious and moral beliefs against abortion. Washington State has a history of targeting religious and moral pro-life organizations and individuals.

53. The strong statutory language, lack of any church exception, and anticipated evidence that pro-abortion groups assisted in drafting and enacting SB 6219, indicates that Washington and its officials deliberately targeted religious organizations and intentionally violated those organizations’ religious beliefs.

The suit alleges violations of the Free Exercise, Equal Protection and Establishment Clauses. ADF issued a press release announcing the filing of the lawsuit.

Sunday, March 10, 2019

Recent Prisoner Free Exercise Cases

In Hill v. Palmer, 2019 U.S. Dist. LEXIS 30851 (WD NC, Feb. 26, 2019), a North Carolina federal district court dismissed an inmate's complaint that he was denied daily devotionals and religious materials from various ministries.

In Miller v. Acosta, 2019 U.S. Dist. LEXIS 30547 (CD CA, Feb. 26, 2019), a California federal magistrate judge dismissed with leave to amend a Wiccan inmate's complaint regarding his removal from the religious meal program.

In Whitely v. CDCR, 2019 U.S. Dist. LEXIS 30672 (ED CA, Feb. 25, 2019), a California federal magistrate judge recommended dismissing a suit by a Muslim inmate alleging denial of access to Islamic services and delay of religious services.

In Parson v. Pierce, 2019 U.S. Dist. LEXIS 31757 (D DE, Feb. 28, 2019), a Delaware federal district court dismissed Muslim inmates' complaints about the ban on possessing razors and inadequate Ramadan diets. Other claims were dismissed for failure to exhaust administrative remedies.

In Blast v. Fischer, 2019 U.S. Dist. LEXIS 32336 (WD NY, Feb. 28, 2019), a New York federal magistrate judge denied a motion for civil contempt brought by an inmate who practices Santeria alleging loss of religious property for which she had a religious permit by reason of a prior court order.

In Townsend v. Georgia, 2019 U.S. Dist. LEXIS 33080 (SD GA, March 1, 2019), a Georgia federal district court agreed with a magistrate's recommendation (2019 U.S. Dist. LEXIS 33205, Feb. 11, 2019) and dismissed as frivolous an inmate's incoherent complaint that, invoking "sovereign citizen" theory, argued that his religious rights as a Rastafarian have been violated.

Churches' Challenge To Required Abortion Health Care Coverage Rejected

In Foothill Church v. Rouillard, (ED CA, March 7, 2019). a California federal district court dismissed a suit brought by three churches challenging a ruling by the California Department of Managed Health Care that requires health insurance companies to include coverage for abortion services in all health insurance policies. Rejecting the churches' Free Exercise claim, the court held that the churches have not alleged sufficient facts to call into question the defense that the ruling is a neutral law of general applicability. It also rejected the churches' equal protection claim saying that there was no showing that the state acted with the intent to adversely affect plaintiffs' religious beliefs.

Ministerial Exception Defense Rejected In Suit To Apply Labor Code To Preschool Teachers

In Su v. Stephen S. Wise Temple, (CA App., March 8, 2019), a California state appellate court held that teachers in a Reform Jewish Temple's preschool are not covered by the ministerial exception rule. In the case, California's Labor Commissioner sued on behalf of 40 teachers alleging that the school violated the state's Labor Code by failing to provide rest breaks, uninterrupted meal breaks, and overtime pay.In rejecting the Temple's ministerial exception defense, the majority said in part:

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology. Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception.

Presiding Judge Edmon filed a concurring opinion contending that the court need not reach the question of whether the teachers held "ministerial" positions, saying in part:

I would conclude that the Temple has not demonstrated that the ministerial exception has any application to the present dispute, which does not touch on the Temple’s freedom to choose its ministers or to practice its beliefs....

[T]he constitutional imperative against encroaching on a church’s selection of its ministers does not, as a logical matter, suggest that churches must be exempted from all laws that would regulate the employment relationship between a religious institution and its ministers. Given the number and variety of federal and state employment laws, it stands to reason that some laws will impose a greater burden on religious interests than will others. Accordingly, courts can, without doctrinal inconsistency, exempt churches from the application of some employment laws without exempting churches from all such laws.

Saturday, March 09, 2019

French Cardinal Convicted of Covering Up Child Abuse Reports

In France on Thursday, Cardinal Philippe Barbarin, the Archbishop of Lyon, was convicted of failing to report child abuse to authorities. As reported by the New York Times, in 2014 and 2015 parishioners told the Archbishop of abuse of dozens of Boy Scouts that took place in the late 1980's and early 1990's by one of his priests, Rev. Bernard Preynat. The Archbishop was given a 6-month suspended sentence and fined 45,000 Euros (over $50,000 U.S.). Five other church officials and employees tried with Cardinal Barbarin were acquitted. (Full text of judgment in French).

Friday, March 08, 2019

Yeshivas Sue In Challenge To New York's "Substantial Equivalency" Guidelines

Yesterday, a group of yeshivas, parents and other Orthodox Jewish organizations filed a state-court lawsuit challenging the New York State Education Department's recently adopted Substantial Equivalency Review and Determination Process. The new regulations are 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 posting.) The 50-page complaint (full text) in Parents for Educational and Religious Liberty In Schools, (Sup. Ct. Albany Cty. NY, filed 3/7/2019), alleges in part:

the NYSED’s New Guidelines would effectively frustrate the Petitioners’ constitutionally protected right to the free exercise of religion through a series of onerous requirements; would effectively frustrate the Petitioners’ constitutionally protected free speech rights by dictating what can and cannot be taught in yeshivas; would effectively frustrate the Petitioners’ constitutionally protected due process right to control the upbringing and the education of their children, as recognized by Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923); and would hamper and inhibit the educational system that is central to Petitioners’ way of life, raising issues similar, and relevantly indistinguishable, to those addressed by the United States Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972).

The suit challenges the Guidelines on other state law grounds as well. Yeshiva World reports on the lawsuit.

A Few Iranian Christian Refugees Admitted To U.S.; Many Others Await Visas

NBC News reports that U.S. authorities have recently allowed about a dozen Armenian Christian refugees from Iran admission under the Lautenberg-Specter law that provides for visas for persecuted religious minorities from the former Soviet Union and Iran. The refugees were admitted after a federal judge last July ordered the Department of Homeland Security to provide the reasons for denial of applications from 87 Iranian refugees waiting in Vienna for their visas to be processed. (See prior posting.) NBC reports in part:

Under Trump, the Lautenberg-Specter program has virtually ground to a halt for Iranians. The program includes what used to be a short processing stay in Vienna, but more than 70 Iranian applicants, mostly Christians, have been stuck in Austria for more than two years, their lawyers said. In the past, applicants would be granted U.S. visas after a period of few months in Austria, according to the lawyers and former U.S. officials.

Applicants in Ukraine and other former Soviet states have been admitted without major delays, humanitarian groups said....

"The increased denial rate was not due to the president’s executive orders but to changes in vetting implemented in 2016," the [State Department] spokesperson said in an email, adding that new applications were still being accepted....

The number of Christian refugees admitted to the United States declined by about 36 percent in fiscal year 2018 compared to the previous year.... The drop is part of a broader decline in overall refugee admissions.

Utah Legislature Repeals Ban On Fornication

On Wednesday, the Utah state legislature gave final passage to S.B.43 (full text) and sent it to the governor for his signature. The bill, which enacts several amendments to the state's Criminal Code includes a repeal of Sec. 76-7-104, Utah's prohibition on fornication. Fox 13 News reports on the legislature's action. [Thanks to Scott Mange for the lead.]

House Passes Resolution Condemning Anti-Semitism, Islamophobia and Other Bigotry

Yesterday, the U.S. House of Representatives by a vote of 407-23 passed House Resolution 183 (full text) condemning anti-Semitism, anti-Muslim discrimination and bigotry against other minorities as contrary to the values that define the people of the United States. New York Times reports on the complicated history of the 7-page resolution, saying in part:

It started as a resolution condemning anti-Semitism. Then, anti-Muslim bias was added in. After that came white supremacy. And by the end, it cited “African-Americans, Native Americans, and other people of color, Jews, Muslims, Hindus, Sikhs, immigrants and others” victimized by bigotry.

The resolution condemning “hateful expressions of intolerance,” which passed the House by an overwhelming 407-to-23 vote Thursday afternoon, was as much a statement of Democrats’ values as their factionalism. Caught in the middle was Speaker Nancy Pelosi, who worked for days to quell the internal uproar that erupted after a freshman Democrat, Representative Ilhan Omar of Minnesota, insinuated that backers of Israel exhibit dual loyalty....

Republicans mocked its all-inclusive approach.... Some veteran Jewish Democrats, who had pushed for a measure that would solely condemn anti-Semitism, were equally dismayed.

Thursday, March 07, 2019

Challenge to Florida City's Conversion Therapy Ban May Move Forward

In Vazzo v. City of Tampa, (MD FL, March 5, 2019), a Florida federal district court adopted a magistrate's recommendations (Jan. 30, 2019) concluding that plaintiffs had stated plausible free speech challenges, but dismissed plaintiffs' free exercise challenges, to Tampa, Florida's ban on providing conversion therapy to minors. The court allowed plaintiffs to move ahead with claims that the ordinance is content-based, amounts to viewpoint discrimination and a prior restraint, and that it is unconstitutionally vague and overbroad. It also allowed plaintiffs to move ahead with claims that the ordinance violates the right of their minor clients and constituents to receive information. Plaintiffs also stated a plausible implied pre-emption claim under state law.

Ilhan Omar's Anti-Semitic Tropes Focus Debate

Vox yesterday posted a lengthy analysis of the growing expressions of anti-Semitism in the United States in an article titled The Ilhan Omar Anti-Semitism Controversy, Explained, saying in part:

It’s true that Omar’s comments on Israel keep falling into well-worn anti-Semitic tropes — and her defenders often prove too willing to paper this over and dismiss criticism from even progressive Jews as “smears.”

It’s also the case that Republican officials frequently call on anti-Semitic tropes and say worse about other minority groups without nearly so much bipartisan condemnation. Pushing for a House vote on anti-Semitism really did feel like unfairly singling out Omar — and whitewashing the GOP’s record in the process. That’s why progressives rallied to Omar’s defense, and why the Democratic leadership has been forced to reconsider its initial resolution.

In short, the entire situation is a mess — and an example of how difficult it is for Democrats to carry on an important conversation about anti-Semitism on the left without downplaying the far more pressing problem of anti-Semitism on the right.

3rd Circuit Hears Oral Arguments In Fair Housing Act Challenge To Sex-Segregated Pool Hours

On Tuesday, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Curto v. Country Place Condominium Association, Inc. (audio of full oral arguments). As reported by Courthouse News Service, at issue is whether a New Jersey condominium association's sex-segregated swimming pool hours, instituted to accommodate the condos' large Orthodox Jewish population, violate the federal Fair Housing Act.

Wednesday, March 06, 2019

Canadian Court Certifies Class In Sex Abuse Suit Against Jehovah's Witnesses

In Canada in a class action lawsuit against two Jehovah's Witness entities, a Quebec Superior Court has approved the certification of a class consisting of current or former Jehovah's Witnesses who allege they were sexually assaulted as minors in Quebec by either an elder of the religious group or a fellow member. As reported by CTV News, plaintiffs allege failure to protect and efforts to dissuade reporting to police authorities. A Jehovah's Witnesses spokesman said that the organization reports abuse allegations to authorities as required by the Youth Protection Act.

Convicted War Criminal Stripped of U.S. Naturalized Citizenship

In a press release issued yesterday, the Department of Justice announced that an Oregon federal district court last week revoked the naturalized U.S. citizenship of Sammy Rasema Yetisen who had previously pleaded guilty in a Bosnian court to war crimes. She returned to the United States after serving her five and a half year prison sentence in Bosnia. According to DOJ:

Yetisen, 46, was part of an elite unit of the Army of the Republic of Bosnia and Herzegovina that attacked the village of Trusina in April 1993, in what is known as the Trusina massacre. The unit targeted Bosnian Croats who resided in the village because of their Christian religion and Croat ethnicity, killing 22 unarmed individuals including women and the elderly. Yetisen played a key role in the massacre, serving as part of a firing squad that lined up and executed six unarmed prisoners of war and civilians. Yetisen was admitted to the United States as a refugee before naturalizing in 2002. In her naturalization application, Yetisen indicated that she had never had any military service “in the United States or in any other place.”

New Trial Ordered After Juror Questions Defendant's Taking of Oath

In Davis v. Husain, (NJ App., March 1, 2019), a New Jersey state appellate court, in a hostile work environment case that has already wound its way to the state Supreme Court once, ordered a new trial. At issue is a statement that was made by one of the jurors raising a question about the testimony of the defendant. The juror noted that defendant, a Hindu, had not placed his hand on the Bible when taking the oath. In earlier proceedings, it was shown that the defendant had acted in this way, at least in part, because of his religious belief that the left hand should never be placed on a holy book. In ordering a new trial, the appeals court said in part:

The juror's comment regarding the Bible raises the specter of religious bigotry. Whether that concern colored the view of the other jurors is still unknown, with the exception of the juror who appeared. This is a peculiar situation. The Law Division judge said the juror who made the observation was only concerned with Husain's credibility, i.e. that a person who refused to place his hand on the Bible was incapable of taking the oath seriously and was therefore incredible. He contrasted this with out-and-out religious bigotry. But if he was correct, that too is simply impermissible. The exercise of a person's religion should not make him or her per se incredible.

NJ.com reports on the decision.

Colorado and Masterpiece Cakeshop Agree To End Their Litigation

In a press release yesterday, the Colorado Attorney General's Office announced that the state and Masterpiece Cakeshop have agreed to end their battle over the right of a bakery owner to refuse to design cakes celebrating LGBT events. As previously reported, while the U.S. Supreme Court appeal involving Masterpiece Cakeshop owner Jack Phillip's refusal to design a cake for a same-sex wedding ceremony was pending, another customer, Autumn Scardina, sought a cake from Masterpiece Cakeshop to celebrate her gender transition. Phillips refused and the Commission issued a probable cause determination. In response, Phillips filed a federal lawsuit claiming that the Commission was targeting him in violation of his constitutional rights. In yesterday's announcement, the state said:

Under the terms of the agreement, the Colorado Civil Rights Commission will voluntarily dismiss the state administrative action against Masterpiece Cakeshop and its owner, Jack Phillips, and Mr. Phillips will voluntarily dismiss his federal court case against the State.... This agreement does not affect the ability of Autumn Scardina ... to pursue a claim on her own.

“After careful consideration of the facts, both sides agreed it was not in anyone’s best interest to move forward with these cases. The larger constitutional issues might well be decided down the road, but these cases will not be the vehicle for resolving them. Equal justice for all will continue to be a core value that we will uphold as we enforce our state’s and nation’s civil rights laws,” said [Attorney General] Weise...

ADF, which represents Phillips, issued a press release yesterday saying that the dismissal of litigation comes "in the wake of newly discovered evidence of the state’s ongoing hostility toward religious freedom."