New York Archdiocese Releases Names of 120 Credibly Accused Clergy

On Friday, the Archdiocese of New York released a list of 120 clergy who have been credibly accused of sexually abusing a minor or possessing child pornography, or against whom a claim was found eligible for compensation by the Archdiocese's Independent Reconciliation and Compensation Program (IRCP).  Timothy Cardinal Dolan announced the release in a Pastoral Letter to members of the Archdiocese. Approximately 75% of the clergy on the list were ordained before 1970. Some 350 victims have been awarded compensation by the IRCP.  Only two cases have occurred since 2002. NPR reports on these developments.

Kansas Supreme Court Strikes Down D&E Abortion Ban

In Hodes & Nauser MDs, P.A. v. Schmidt, (KA Sip. Ct., April 26, 2019), the Kansas Supreme Court by a 6-1 vote upheld the trial court's injunction against the enforcement of S.B. 95 which bans, with limited exceptions, dilation and evacuation abortions in Kansas. The per curiam opinion of five justices said in part:

We hold today that section 1 of the Kansas Constitution Bill of Rights protects all Kansans' natural right of personal autonomy, which includes the right to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.

Under our strict scrutiny standard, the State is prohibited from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest. The Doctors have shown they are substantially likely to prevail on their claim that S.B. 95 does not meet this standard. So the trial court's temporary injunction enjoining the enforcement of S.B. 95 is appropriate.

On remand to the trial court for a full resolution of the issues on the merits, the State is certainly free to assert any interests it believes compelling and show how S.B. 95 is narrowly tailored to those interests. We are aware that the evidentiary record is sparsely developed because of the narrow issue previously before that court: simply whether a temporary injunction should be granted. We, thus, decline the concurring opinion's invitation to guess at what the arguments and evidence might be in order to provide guidance on remand.

Justice Biles filed a concurring opinion and Justice Stegall filed a dissent. The 3 opinions span 199 pages. NPR reports on the decision.

IRS Recognizes Satanic Temple As A "Church"

The Satanic Temple announced yesterday that the Internal Revenue Service has recognized the organization as a "church" for federal income tax purposes. It says that among other things this will assure its standing in court to challenge religious discrimination and will allow it to apply for faith based government grants.  Rolling Stone reports on this, adding:

Although the Satanic Temple had previously rejected pursuing tax-exempt status, church president Lucien Greaves reversed this stance in 2017 after President Trump signed a “religious freedom” executive order. “As ‘the religious’ are increasingly gaining ground as a privileged class, we must ensure that this privilege is available to all, and that superstition doesn’t gain exclusive rights over non-theistic religions or non-belief,” Greaves wrote in the Satanic Temple newsletter....

Suit Against "Muslim-Free" Gun Range Dropped After Sign Is Removed

Religion News Service reports that the ACLU and CAIR have filed a motion to dismiss their lawsuit against Save Yourself Survival and Tactical Gun Range in Oktaha, Oklahoma after the Gun Range removed its sign that had declared the business a "Muslim-free establishment." The business' owners have affirmed that they will not repost the sign and will not exclude Muslim customers.

Ohio Probate Court Lacks Jurisdiction To Change Nationality of Moorish Science Adherent

In In re Easterling, (OH App., April 24, 2019), an Ohio state appeals court affirmed a probate court's decision in a case brought by a member of the Moorish Science Temple of America. The probate court granted Douglas Easterling's request to change his name to Raphael Kulika Bey. However it denied his request to change his race from "Black/African American" to "Moor/Aboriginal American national." The appeals court held that Ohio probate courts lack jurisdiction to change a person's race or nationality. While the probate court has jurisdiction to correct a birth record, here petitioner's birth certificate did not list his race or nationality, so there was nothing to correct.

Indian Court Says Hindu Marriage Act Covers Marriage Involving Transgender Woman

A trial court in India has held that a marriage between a man and a transgender woman, both of whom profess the Hindu religion, is valid under the Hindu Marriage Act and the Registrar of Marriages is required to register the marriage. In Arunkumar v. Inspector General of Registration, (Madras High Ct., April 22, 2019), the court said in part:

For too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream....

When the right of the transgender persons to marry has been upheld by the Hon'ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act.

Deccan Herald reports on the decision.

4th Circuit: Inmate Fails To Prove Causation In His RLUIPA And Free Exercise Claims

In Wright v. Lassiter, (4th Cir., April 17, 2019), the U.S. 4th Circuit Court of Appeals rejected a Rastafarian inmate's claims that his rights under RLUIPA and the 1st Amendment were infringed when prison officials rejected his request to celebrate four annual religious holidays through communal feasts and three others that do not include feasts. The court, holding that "plaintiff must show that the prison's policies imposed a substantial burden on his exercise of sincerely held religious beliefs," concluded that plaintiff failed to show the required causation:

...Wright’s causation problem stems from the fact that he has requested communal gatherings and feasts. There is no such thing as a community of one, and Wright agreed at oral argument that he was not seeking a feast for himself alone. He therefore had to show that, but for the policies that allegedly prohibit the requested holiday gatherings, other inmates would join in the gatherings.... There was no testimony showing that any other Rastafarian at Central Prison or any other North Carolina prison had joined in his requests to celebrate in the manner he requested or would attend his gatherings if they were held....

Supreme Court Hears Oral Arguments In Title VII Case

Yesterday the U.S. Supreme Court heard oral arguments (transcript of oral arguments) in Fort Bend County, Texas v. Davis. In the case, the 5th Circuit held that the the requirement a person exhaust administrative remedies before bringing a Title VII employment discrimination action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. Charlotte Garden at SCOTUSblog reports on the oral arguments.

Condo's Sex Segregated Swim Hours Violate Fair Housing Act

In Curto v. A Country Place Condominium Association, (3d Cir., April 22, 2019), the U.S. 3rd Circuit Court of Appeals held that a condominium's mostly sex-segregated swimming hours, adopted in deference to a large number of Orthodox Jewish residents, violates the federal Fair Housing Act. Judge Ambro's opinion focused on the fact that the swim schedule discriminates against women. Weekday evening times were mostly allocated to men.  He concluded:

Women with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles of men and women.

He concluded that defendant had waived any RFRA defense, and even if it had not, the condominium association lacks standing to assert the defense.  Judge Fuentes' concurring opinion added:

I write separately to express my skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women. Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes. We would have no problem concluding, for example, that a pool schedule that allocates two-thirds of its hours to swimming segregated by race and one-third of its hours to “Integrated Swimming” would be intolerable under the FHA. And the FHA’s prohibition on discrimination does not distinguish between discrimination on the basis of sex and discrimination on the basis of race.

ACLU issued a press release announcing the decision.

Certiorari Denied In Priest's Libel Suit Against Diocese

Yesterday the U.S. Supreme Court denied review in Gallagher v. Diocese of Palm Beach, Inc., (Docket No. 18-964, certiorari denied, 4/22/2019) (Order List).  In the case,  a Florida state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a defamation suit brought by a Catholic priest against the diocese in which he served. (See prior posting.) The Florida Supreme Court had denied review in the case.  South Florida Sun Sentinel reports on yesterday's U.S. Supreme Court's denial of certiorari.

Zoning Accommodation For Homeless Construction Is Upheld

In Ward v. Metropolitan Government of Nashville and Davidson County, Tennessee, (TN App., April 17, 2019), a Tennessee state appeals court upheld a local zoning decision granting an accommodate to property owned by a church on which it would build 22 micro-homes to house the homeless. As summarized by the court:

Appellants argue that the development should be subject to the zoning laws and procedures because the development would be constructed, owned, and operated by a lessee of the property that was not a religious institution or assembly or otherwise exercising religion and, consequently, applying the zoning laws to the development would not adversely affect the church’s exercise of religion.

The court held, however:

Given the nature of the project, the lease arrangement between Open Table and GUMC [Glencliff United Methodist Church] does not negate the protection that the statutes provide to GUMC; the project is born out of a common, religiously motivated desire to help the homeless, a cause that is recognized by the church as part of its core mission. Thus, it is entirely appropriate for GUMC to apply for and receive the accommodation allowed by the statutes. 

Charitable Organization Avoids Dismissal of RLUIPA Claims

In Layman Lessons Church v. Metropolitan Government of Nashville/ Davidson County, (MD TN, April 18, 2019), a Tennessee federal district court allowed a religious charitable disaster relief organization to move ahead with many of its claims under RLUIPA and the comparable state statute.  Plaintiff alleges that the city of Nashville discriminated against it through arbitrary enforcement of zoning and building code provisions. The court said in part:

Plaintiff has sufficiently alleged ... that the actions of Defendant—including, but not limited to, Defendant’s issuance of demolition orders, stop work orders, and storm water orders...; Defendant’s insisting that Plaintiff complete additional repair work and get additional permits than what was previously required; Defendant’s erroneously asserting that a protected stream existed on the property; and Defendant’s erroneously fining Plaintiff for “grading without a permit”—created a “substantial burden” on its free exercise of religion, in violation of RLUIPA.

Plaintiff also alleges that Defendant discriminated against Plaintiff based on its religion. Defendant does not mention this discrimination claim. Plaintiff has alleged that it was treated differently than other property owners because it is a religious organization.... Plaintiff has sufficiently alleged, for purposes of a motion to dismiss, that it was treated differently from non-religious property owners.... In addition, for the same reasons, Plaintiff has sufficiently alleged that it was treated on less than equal terms with a non-religious institution...

3rd Circuit: Philly May Require Its Foster Care Agencies To Accept Same-Sex Couples

In Fulton v. City of Philadelphia, (3d Cir., April 22, 2019), the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples.  The court said in part:

The City’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy. 

[A]t the preliminary injunction stage CSS shows insufficient evidence that the City violated the Free Exercise Clause. The Fair Practices Ordinance has not been gerrymandered..., and there is no history of ignoring widespread secular violations ... or the kind of animosity against religion found in Masterpiece. Here the City has been working with CSS for many decades.... And the City has expressed a constant desire to renew its relationship with CSS as a foster care agency if it will comply with the City’s non-discrimination policies protecting same-sex couples.

Philadelphia Inquirer reports on the decision.

Supreme Court Will Decide Whether Title VII Protects Gays and Transgender Individuals

The U.S. Supreme Court today granted review in three cases involving important questions of LGBT rights under Title VII of the 1964 Civil Rights Act.  First the Court granted certiorari in Bostock v. Clayton County, Georgia, (Docket No. 17-1618) (SCOTUSblog Case Page) and consolidated it with Altitude Express, Inc. v. Zarda (Docket No.17-1623) (SCOTUSblog Case Page) (see prior posting) in which it also granted certiorari (Order List 4/22/2019). The cases raise the question of whether Title VII's prohibition on discrimination "because of ... sex" covers discrimination against employees on the basis of sexual orientation.

Second, the Court granted review in R.G. & G.R. Harris Funeral Homes v. EEOC, (Docket No. 18-107, certiorari granted 4/22/2019 (SCOTUSblog Case Page) (See prior posting). The grant of certiorari was specifically on:

Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

New York Times reports on the Supreme Court's action.

Recent Articles of Interest

From SSRN:

• John Vlahoplus, Foreign-Born Children of Disloyal Parents: Adam Muthana, Mary Arcedeckne and the Natural Born, (St. John's Law Review, Forthcoming).
• Eliza Bateman, 'His Garden a Wilderness' - The Balance between Equality and Freedom of Religion in Australia and Canada, (March 18, 2019).
• Scott D. Gerber, Law and Liberty of Conscience in Colonial Pennsylvania, (NYU Journal of Law & Liberty, Vol. 12, No. 3, 2019, Forthcoming).
• Martin Kwan, Human Gene Editing and Human Rights: An Uncertain Future, (Human Rights Series, 2019).
• Nitish Nawsagaray, Misuse of the Prevention of Atrocities Act: Scrutinising the Mahajan Judgment, 2018, (Economic & Political Weekly, June 2, 2018 vol. LIII no. 22).

From SmartCILP:

• The Question of Religious Freedom: From John Courtney Murray, SJ and Vatican II to the Present. Articles by Miguel H. Diaz, Robin W. Lovin, Barry Sullivan, Leslie C. Griffin, Hille Haker, Kathleen A. Brady, Carmen Nanko-Fernandez, Thomas C. Berg. 50 Loyola University Chicago Law Journal 1-209 (2018).
• Kristina M. Campbell, Sanctuary, Temporary Protected Status, and Catholic Social Teaching, 96 University of Detroit Mercy Law Review 25-53 (2018).

DC Circuit: House Can Exclude Secular Invocations

In Barker v. Conroy, (D Cir., April 19, 2019), the U.S. Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the rule in the House of Representatives that limits invocations to those that are "religious" rather than secular.  At issue was the refusal by the House Chaplain's Office to allow a former Christian who had become an atheist to serve as guest chaplain and deliver a secular invocation.  The court found plaintiff had standing to bring the suit, but, citing Supreme Court precedent, held:

Marsh and Town of Greece leave no doubt that the Supreme Court understands our nation’s longstanding legislative-prayer tradition as one that, because of its “unique history,” can be both religious and consistent with the Establishment Clause. Marsh, 463 U.S. at 791. And although the Court has warned against discriminating among religions or tolerating a pattern of prayers that proselytize or disparage certain faiths or beliefs, it has never suggested that legislatures must allow secular as well as religious prayer. In the sui generis context of legislative prayer, then, the House does not violate the Establishment Clause by limiting its opening prayer to religious prayer.

Roll Call reports on the decision. [Thanks to Jeff Pasek for the lead.]

White House Announces Annual Easter Egg Roll

The White House today announced this year's Easter Egg Festivities, which will be held next Monday.  The press release, supplementing information elsewhere on the White House website, says in part:

First Lady Melania Trump and President Donald J. Trump invite this year’s Easter Egg Roll attendees to enjoy a variety of activities, including the time-honored Egg Roll and the Trump Administration’s Cards for Troops station.  New to the Egg Roll this year: musical eggs and Be Best hopscotch.  In recognition of the First Lady’s Be Best campaign, children will also have the opportunity to spread kindness by mailing postcards to anyone they choose – friends, family, members of the military – directly through a United States Postal Service mailbox that will be on the South grounds.

Pro-Life Pregnancy Center Challenges City's Required Disclosures

Suit was filed in a Connecticut federal district court yesterday challenging the constitutionality of a Hartford (CT) Ordinance that requires pregnancy resource centers to make required disclosures on signs, websites and when patients make appointments.  Facilities must make the disclosures if they do not have licensed medical providers on the premises to directly supervise all services.  The complaint (full text) in Caring Families Pregnancy Services, Inc. v. City of Hartford, (D CT. filed 4/18/2019), alleges that the Ordinance is drafted to cover only pro-life pregnancy resource centers, and requires statements that incorrectly imply that the facilities are not qualified to provide the services they offer. The complaint contends:

The practical result of enforcing the Ordinance’s Compelled Speech provision would be not only to inhibit a religious ministry from furthering its mission and message but also to force religious speakers to speak messages with misleading, confusing and negative implications....

Hartford is intent on interfering with certain views about life, pregnancy, and motherhood. Hartford has thus crafted a speaker-based, viewpoint-based law targeting the speech only of speakers espousing certain pro-life moral, religious, and philosophical beliefs.

ADF issued a press release announcing the filing of the lawsuit.

Emergency Order Requiring Measels Vaccination Upheld

In C.F. v. New York City Department of Health, (Kings Cty. Sup. Ct., April 18, 2019), a New York state trial court judge rejected challenges to the recent 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. The court said in part:

The pivotal question posed for this court's determination is whether Respondent Commissioner has a rational, non-pretextual basis for declaring a public health emergency.... The unvamished truth is that these diagnoses represent the most significant spike in incidences of measles in the United States in many years and that the Williamsburg section of Brooklyn is at its epicenter....

The religious objection exemption contained in Public Health Law $2 164(a) applies only to the certificate of immunization required to admit a child to school, not to remedies attendant upon declaration of a public health emergency....

Petitioner raise the issue of informed consent.... A fireman need not obtain the informed consent of the owner before extinguishing a house fire. Vaccination is known to extinguish the fire of contagion.

Enforcement of Mahr Provision In Islamic Marriage Contract Upheld

In Seifeddine v. Jaber, (MI App., April 16, 2019), a Michigan state appellate court rejected a challenge to a trial court's enforcement in a divorce action of the mahr provisions of an Islamic marriage certificate. The provision required the husband to pay $50,000 to his wife. According to the court:

[T]he trial court expressly and repeatedly stated that it was not applying religious principles or doctrines but was instead applying Michigan common law regarding contracts.... Plaintiff makes no argument challenging any particular element for establishing the existence of a contract. Nor does plaintiff cite any authority for his contention that a neutral principle of law must be derived from a statute rather than from Michigan common law when examining a religious document.