Pennsylvania Man Sentenced For Online Threats To Jewish Community

The U.S. Attorney's Office for the Middle District of Pennsylvania announced yesterday that a 32 year old Pennsylvania man has been sentenced to 18-months in prison after he pleaded guilty to one count of interstate transmission of threats to injure another person. According to the press release:

[Corbin]  Kauffman posted a digitally-created image of his own arm and hand aiming an AR-15 rifle at a congregation of praying Jewish men, gathered in a synagogue.  The threatening image came in the wake of the October 27, 2018 mass-shooting at Tree of Life synagogue in Pittsburgh, Pennsylvania.....  On the same day ..., Kauffman also shared a video of the Tree of Life shooting, as well as another post in support of the shooter [and] ... also posted multiple references to “hate crimes” and a photograph of vandalism he committed by defacing a display case at the Chabad Lubavitch Jewish Center in Ocean City, Maryland, with white supremacist and anti-Semitic stickers.

Teacher Who Refused To Address Transgender Students By Preferred Names Loses Title VII Suit

In Kluge v. Brownsburg Community School Corporation, (SD IN, July 12, 2021), an Indiana federal district court dismissed a suit by a former teacher who resigned rather than comply with a school policy requiring him to address transgender students by their preferred names and pronouns. Plaintiff contended that it violated his Christian religious beliefs to comply with this policy. He sued under Title VII, claiming failure to accommodate his religious beliefs and retaliation. The court said in part:

[A]  name carries with it enough importance to overcome a public school corporation's duty to accommodate a teacher's sincerely held religious beliefs against a policy that requires staff to use transgender students' preferred names when supported by a parent and health care provider. Because BCSC ... could not accommodate Mr. Kluge's religious beliefs without sustaining undue hardship, and because Mr. Kluge has failed to make a meaningful argument or adduce evidence in support of a claim for retaliation, BCSC's Cross-Motion for Summary Judgment is GRANTED....

Indiana Lawyer reports on the decision.

Plaintiff Lacks Standing To Challenge Michigan COVID Order Exemption For Worship Services

In Bormuth v. Whitmer, (ED MI, July 12, 2021), a Michigan federal magistrate judge denied plaintiff's motion to file a supplemental complaint in a challenge to a portion of Michigan Governor Gretchen Whitmer's now-rescinded COVID-19 Orders. At issue was an exemption from penalties for violation of stay-at-home orders by places of religious worship that allowed worship services, or by individuals travelling to places of worship. The court said in part:

The exemptions from prosecution for places of religious worship and their owners caused no harm to Plaintiff; if anything, they provided a protection to him. Under the exemptions, he enjoyed the freedom to practice his own religion at any indoor or outdoor “place of religious worship” without fear of prosecution....

The exemptions at issue neither established a state religion, nor favored particular religions, nor inhibited Plaintiff’s own free expression of genuinely-held religious beliefs. Indeed, the exemptions protected his expression of such beliefs....

Plaintiff’s proposed supplemental complaint still fails to demonstrate standing on the basis of a “concrete, particularized, and actual or imminent” injury... His proposed supplemental pleading will not cure the lack of justiciability identified in my prior report and recommendation.

Plaintiffs Lack Standing To Challenge "Black Lives Matter" Mural As Establishment Clause Violation

In Penkoski v. Bowser, (D DC, July 12, 2021), the D.C. federal district court held that a Black Lives Matter mural painted on DC streets was government speech, rejecting plaintiffs' claim of content discrimination in a public forum.  The court also dismissed on standing grounds plaintiffs' claim that the mural violates the Establishment Clause by promoting the religion of Secular Humanism.

Court Enjoins Statute Requiring Warning About Restroom Access

In Bongo Productions, LLC v. Lawrence, (MD TN, July 9, 2021), a Tennessee federal district court issued a preliminary injunction against enforcement of a recent Tennessee statute that requires businesses which allow individuals to use rest rooms consistent with their gender identity to post a sign by each rest room stating: "This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation of the restroom." The court concluded that the statute violates plaintiffs' First Amendment free speech rights by compelling speech. The court said in part:

[T]here is simply no basis whatsoever for concluding that the Act is narrowly tailored to serve any compelling governmental purpose....

The defendants are right that, as the Supreme Court has held, strict scrutiny typically does not apply to laws compelling commercial actors to disclose “purely factual and uncontroversial information about the terms under which [their] services will be available.”...

The Supreme Court has expressly recognized that “sexual orientation and gender identity” are, generally speaking, “controversial subjects.”...

[P]eople on one side of a disagreement do not get to unilaterally declare their position to be uncontroversial, because that is not how the concept of “controversy” works. Put another way, the defendants might be wise to accept that, once you are in a heated argument with multiple folks about whether your position is uncontroversial, there is a good chance that you may have already lost.

Gay City News reports on the decision.

5th Circuit: Courtroom Invocations Do Not Violate Establishment Clause

In Freedom From Religion Foundation, Inc. v. Mack, (5th Cir., July 9, 2021), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a Texas district court's declaratory judgment order which concluded that a a Justice of the Peace's program under which court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.) Attendees may to step out of the courtroom before the ceremony if they wish. The appeals court held that official capacity claims under 42 USC §1983 are barred, and that FFRF's individual capacity claims are likely to fail. The court said in part:

The Supreme Court has held that our Nation’s history and tradition allow legislatures to use tax dollars to pay for chaplains who perform sectarian prayers before sessions. See Marsh v. Chambers, 463 U.S. 783 (1983). If anything, Judge Mack’s chaplaincy program raises fewer questions under the Establishment Clause because it uses zero tax dollars and operates on a volunteer basis....

It’s true that Marsh and Town of Greece involved a legislature’s chaplains, not a justice of the peace’s chaplains. But it’s unclear why that matters, given the abundant history and tradition of courtroom prayer.

Washington Times reports on the decision.

7th Circuit En Banc: Ministerial Exception Applies To Hostile Work Environment Claims

In Demkovich v. St. Andrew the Apostle Parish, Calumet City, (7th Cir., July 9, 2021), the U.S. 7th Circuit Court of Appeals, sitting en banc, held by a vote of 7-3 that the ministerial exception doctrine applies to protect religious organizations from  hostile work environment claims alleging minister-on-minister harassment. A 3-judge panel had reach the opposite conclusion. At issue is derogatory and demeaning comments made to the church's gay music director by the church's pastor. The majority opinion, written by Judge Brennan, said in part:

This case concerns what one minister, Reverend Dada, said to another, Demkovich. Adjudicating Demkovich’s allegations of minister-on-minister harassment would not only undercut a religious organization’s constitutionally protected relationship with its ministers, but also cause civil intrusion into, and excessive entanglement with, the religious sphere.

Judge Hamilton filed a dissenting opinion, joined by Judges Rovner and Wood, saying in part: 

[P]laintiff is not asking the court to pass on the substance of the Catholic Church’s religious doctrines or practices. Civil courts have nothing to say about whether the Church should permit same-sex marriage, for example, or whether the Church should have a hierarchical supervisory structure. The Church was free to decide whether to retain plaintiff or fire him. But plaintiff’s hostile work environment claims allege conduct that constituted abuse under neutral, generally applicable standards that would be enforceable on behalf of a non-ministerial employee. That conduct is, by definition, not necessary to control or supervise any employee.

Bloomberg Law reports on the decision.

Israel's Supreme Court Extends Surrogacy Rights To Same-Sex Couples and Single Men

As reported by AP and The Forward, Israel's Supreme Court sitting as the High Court of Justice yesterday ruled that the government must allow same-sex couples and single men to become parents through surrogate mothers on a equal basis with heterosexual couples and single women. Its ruling takes effect in 6 months, in order to give time for the creation of professional guidelines. AP explains:

The court ruled in 2020 that a surrogacy law, which had expanded access to single women but excluded gay couples, “disproportionately harmed the right to equality and the right to parenthood” and was unlawful.

It gave the government a year to draw up a new law, but parliament failed to meet the deadline.

[Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

• From SSRN:
• M. Mohsin Alam Bhat, Religious Freedom in Contest: Enforcing Religion Through Anti- Conversion Laws in India, (Journal of Law, Religion and State (2021)).
• Raphael Cohen-Almagor, Can Group Rights Justify the Denial of Education to Children? The Amish in the United States as a Case Study, (SN Social Sciences, 1: 164 (2021)).
• Jayanta Boruah, Euthanasia in India: A Review on Its Constitutional Validity, (Lex Humanitariae: Journal for a Change 2021).
• Anthony Michael Kreis, Unlawful Genders, (Law and Contemporary Problems (forthcoming)).

From SmartCILP:

• T.J. Denley, Balancing Burdens in Religious Freedom Claims, [Abstract], 26 Cardozo Journal of Equal Rights & Social Justice 207-232 (2020).

9th Circuit Hears Oral Arguments In Washington Insurance Coverage Mandate Challenge

On Friday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Cedar Park Assembly of God v. Kreidler. (Video of full oral arguments.) In the case, a Washington federal district court refused to grant a preliminary injunction to a church that objects to Washington's SB 6219 which requires health insurance plans that cover maternity care to also cover abortions. A Washington federal district court had dismissed the suit on standing grounds. (See prior posting.) Washington Examiner reports on the oral arguments.

Content of Sermon Protected By Ecclesiastical Abstention Doctrine

In Hullibarger v. Archdiocese of Detroit, (MI App., July 8, 2021), a Michigan state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a suit claiming that a priest's sermon at the funeral of plaintiff's son amounted to intentional infliction of emotional distress, misrepresentation and invasion of privacy. The court also held that the ecclesiastical abstention doctrine requires dismissal of  a negligent hiring, supervision and retention claim. According to the court:

Plaintiff’s son committed suicide in early December 2018, but his family kept the manner of his death from the public. Plaintiff’s pastor, defendant Father Don LaCuesta, officiated at the funeral and during his homily revealed the suicide of plaintiff’s son to the public. He then proceeded to preach about suicide as a grave sin and specifically about how it endangered the immortal soul of plaintiff’s son.

Enforcement of Islamic Pre-Nup Challenged On Appeal

An appeal was filed last month in a Texas state appellate court challenging a trial court's enforcement of an arbitration clause in an Islamic pre-nuptial agreement. The petition for a writ of mandamus in In re Ayad, (TX App., filed 6/22/2021) (full text) contends that the agreement is void as a matter of law and against public policy, and was involuntarily executed. The petition contends in part:

The trial court clearly abused its discretion in failing to properly analyze the law when it validated and enforced the Islamic Pre-Nuptial Agreement and compelled arbitration in front of a Muslim Court applying solely Islamic Law....

[Thanks to Eugene Volokh via  Religionlaw for the lead.]

Dismissal Of Suit Against Trump For Promoting Religion Affirmed By Delaware Supreme Court

In Kelly v. Trump,(DE Sup. Ct., July 7, 2021), the Delaware Supreme Court affirmed the dismissal on standing grounds of two claims in a suit against then-President Donald Trump contending that he created the illusion of government sponsorship of religion, The court also affirmed the refusal to allow plaintiff to substitute President Biden as defendant because he allowed Executive Order 13798 to remain in effect.  According to the court:

[Plaintiff]  contends that the executive order “require[s] government organizations and agents to partner with churches to pay churches to perform government business for the government....  She states that the “churches create the illusion of charity while serving business greed” and that she “believe[s] people will be damned to hell for thinking business greed is charity.”...

Kelly’s claim is manifestly without merit. Contrary to her assertion, Executive Order 13798, on its face, does not prescribe any partnership between the government and any religious organization.

5th Circuit: Ban On Proselytizing At Outdoor Market Violates Free Speech Rigths

In Denton v. City of El Paso, Texas, (5th Cir., July 6, 2021), the U.S. 5th Circuit Court of Appeals remanded the case to a Texas federal district court ordering it to grant a preliminary injunction barring El Paso from prohibiting religious proselytizing at the weekly outdoor El Paso Art and Farmers Market. The city's rules bar fundraising, political campaigning and religious proselytizing from the market. The court held that these exclusions are content-based, and concluded:

It is unclear whether the City has asserted a compelling government interest. We need not decide this issue because, even assuming that it did assert a compelling government interest, a prior restraint of speech based on a viewpoint is unlikely to be the least restrictive means of regulation available.

Parents Who Headed Capital Drive Sue Catholic School For Straying From Mainstream Catholicism

Suit was filed in a Florida state trial court last month by the parents of two Catholic school students who were the joint chairs of the school's $9 million capital campaign. They had personally pledged over $1.35 million to the campaign and paid a portion of that pledge. They now seek to have the court declare the pledge null and void, and order return to them of pledged amounts already paid, as well as tuition paid for their daughters. The complaint (full text) in Scarpo v. Academy of the Holy Names of Florida, Inc., (FL Cir. Ct., filed 6/26/2021), alleges in part:

[I]n Defendants' zeal to embrace the politically correct, "woke" culture currently in vogue, the Defendants breached Defendants' promises to provide Plaintiffs minor children with a Cahtolic [sic.] Education in return for Plaintiffs paying tuition and fund-raising for the Academy of the Holy Names....

[T]he Academy lost its way, distancing itself from mainstream Catholicism, and embracing the new, politically correct, divisive and "woke" culture where gender identity, human sexuality, and pregnancy termination among other "hot-button issues," took center stage and mainstream Catholicism and Catholic Catechism were relegated to what was billed as an unfortunate past deserving of its Students guilt for not having been "woke" sooner.

Friendly Atheist blog reports on the case, as does AP.

5th Circuit Hears Arguments From Judge Who Refuses To Officiate At Same-Sex Weddings

 Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Umphress v. Hall. (Audio of full oral arguments.) In the case, a Texas federal district court dismissed on standing and ripeness grounds (Umphress v. Hall,(ND TX, Nov. 10, 2020), a suit by a Texas judge who was seeking to prevent future action by the State Commission on Judicial Conduct against judges who refuse to officiatae at same-sex weddings. Bloomberg Law reports on the case.

Social Work Applicant Moves Ahead On Religious Discrimination Claim

In Weiss v. City University of New York, (SD NY, filed 7/2/2021), a New York federal district court refused to dismiss certain of plaintiff's equal protection and Establishment Clause claims. Plaintiff alleged that she was denied admission to the University's social work program because officials weeded out Jews from a religious background, believing they are too conservative to be social workers.

Alaska Homeless Shelter Challenges City's Public Accommodation Law

Last week, an Anchorage, Alaska women's homeless shelter filed suit in an Alaska federal district court contending that the city's recently amended public accommodation law that requires it to house transgender women violates the shelter's 1st and 14th Amendment rights.  The law prohibits discrimination on the basis of sex or gender identity. The complaint (full text) in Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, filed 6/30/2021), says in part:

Defendants insist Hope Center’s religious beliefs— specifically, its beliefs about sexuality and gender—are discriminatory and deserving of punishment. In Defendants’ view, providing charitable shelter exclusively to vulnerable women is unlawful sex and gender-identity discrimination....

Because of its religious beliefs and desire to create a safe and secure environment, Hope Center allows only biological women to stay overnight at the shelter....

No Hope Center policy prohibits biological women who identify as men from accessing the shelter....

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

State Department Will Accommodate LGBTQI+ Citizens In Passport Designations

The U.S. State Department in a press release dated June 30 announced: 

the Department will be taking further steps toward ensuring the fair treatment of LGBTQI+ U.S. citizens, regardless of their gender or sex, by beginning the process of updating our procedures for the issuance of U.S. Passports and Consular Reports of Birth Abroad (CRBA).

Most immediately, we will be updating our procedures to allow applicants to self-select their gender as “M” or “F” and will no longer require medical certification if an applicant’s self-selected gender does not match the gender on their other citizenship or identity documents.  The Department has begun moving towards adding a gender marker for non-binary, intersex, and gender non-conforming persons applying for a passport or CRBA.  We are evaluating the best approach to achieve this goal.

TLDEF issued a press release reacting to the announcement.

Recent Articles of Interest

From SSRN:

• Ronald J. Colombo, Corporate Entanglement with Religion and the Supression of Expression, (Seattle University Law Review, Vol. 45, 2022).
• Alexander MacDonald, Religious Schools, Collective Bargaining, and the Constitutional Legacy of Catholic Bishop, (Federalist Society Review, Vol. 22 (2021)).
• Kwaku Ayim Atta-Asiedu, Theories in Contemporary African Studies Research: The Theory of Religious Compromisation, (June 17, 2021).
• Jayanta Boruah, Contribution of Law in Promoting Secularism in Assam: A Socio-Legal Study, (Dissertation Thesis to Krishna Kanta Handique State Open University 2019).
• Jayanta Boruah, Euthanasia in India: A Review on Its Constitutional Validity, (Lex Humanitariae: Journal for Change 2021).
• John Mikhail, Does Originalism Have a Natural Law Problem?, (Law and History Review, Vol. 39, No. 2, pp. 361-367 (2021)).
• Gabriella Gimigliano, Banking Contracts and Sharia Rules within the European Union Framework, (Open Review of Management, Banking, and Finance, 2019, 1-17).
• Thomas Aronsson, Olof Johansson‐Stenman & Ronald Wendner, Charity, Status, and Optimal Taxation: Welfarist and Non-Welfarist Approaches, (June 9, 2021).

From SmartCILP and elsewhere:

• Symposium on “Halakhah: The Rabbinic Idea of Law”, Vallinova Law Review, Vol. 64, Issue 5 (2019).
• Nimra H. Azmi, Uncovered: Title VI & Title IX's Limited Protections for Muslim Students Who Veil, 43 Harvard Journal of Law & Gender 281-300 (2020).
• Spearit, Reimagining the Death Penalty: Targeting Christians, Conservatives, 68 Buffalo Law Review 93-138 (2020)
• Elizabeth Reiner Platt, Katherine Franke & Lilia Hadjiivanova, We The People (of Faith): The Supremacy of Religious Rights in the Shadow of a Pandemic, (Law, Rights & Religion Project, Columbia Law School, 2021).