Consent Decree Defines Protected Anti-Abortion Activity

A consent decree (full text) was issued last week in Zastrow v. City of Toledo, (ND OH, March 19, 2019), enjoining the city of Toledo, Ohio from enforcing various City Code provisions against anti-abortion demonstrators engaged in non-obstructive, expressive activity on public sidewalks and medians outside a Toledo abortion clinic. The decree included a detailed description of the kind of expressive activities that are protected:

3. The “non-obstructive, expressive activity of pro-life demonstrators” ... includes activity protected by the First Amendment, including, but not limited to unamplified prayer, preaching, worship, singing worship songs, playing worship songs with instruments such as the acoustic guitar and violin, holding pro-life signs, distributing literature, and engaging passersby with their pro-life message.

4. The parties agree that the term “non-obstructive, expressive activity” means activity protected by the First Amendment that does not physically prevent a pedestrian from using a public sidewalk or other public way or that does not physically impede a vehicle from traveling on a public road or street. This does not mean that the person or persons engaging in the First Amendment activity must be moving all the time. Additionally, the First Amendment activity is not “obstructive” because a pedestrian might have to walk around the person engaging in the expressive activity. It is only “obstructive” when the person engaging in the First Amendment activity physically prevents a pedestrian from using the public sidewalk or prevents a vehicle from entering onto the premises....

Christian Post reports on the consent decree.

In Settlement Agreement, Michigan Will Enforce LGBTQ Non-Discrimination Provisions Against Religious Adoption Agencies

As previously reported, last September a Michigan federal district court in Dumont v. Lyon held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services (MDHHS) for permitting child placing agencies receiving state funds to use religious criteria to deny them services. Last Friday, Michigan Attorney General Dana Nessel announced that the state has entered into a settlement agreement (full text) (summary) that calls for the state to enforce non-discrimination provisions in agreements with foster care and adoption agencies.  The settlement applies to any agency contracting with MDHHS that discriminates against same-sex couples or LGBTQ individuals otherwise qualified as foster care or adoptive parents for any child accepted by the agency under a contract with MDHHS. These child placement agencies may not turn away or refer to another agency, or refuse to place a child with, an otherwise potentially qualified LGBTQ individual or same-sex couple. However a child placement agency may refuse for any reason to accept a referral from MDHHS of any particular child.

Recent Articles of Interest

From SSRN:

• Nathan B. Oman, John Calvin’s Quarrel with Civil Recourse Theory, (Christianity and Private Law, Robert Cochran & Michael Moreland, eds. (Cambridge, UP Forthcoming)).
• Anna Su, Establishment, (Law, Religion, USA (Joshua Dubler & Isaac Weiner eds., NYU Press, 2019)).
• Kent Greenfield, Brief for Professor Kent Greenfield As Amicus Curiae in Support of Respondents, State of Washington vs. Arlene's Flowers and Ingersoll vs. Arlene's Flowers, (Boston College Law School Legal Studies Research Paper No. 500 (March 2019)).
• Marc O. DeGirolami, The Traditions of American Constitutional Law, (Notre Dame Law Review, Forthcoming).
• Bret Matera, Divining a Definition: ‘Substantial Burden’ in the Penal Context Under a Post-Holt RLUIPA, (Columbia Law Review, Forthcoming).
• Stijin Smet, Conscientious Objection through the Contrasting Lenses of Tolerance and Respect, (Oxford Journal of Law and Religion (2019)).
• Roger Colinvaux, Fixing Philanthropy: A Vision for Charitable Giving and Reform, (Tax Notes, Vol. 162, No. 9, p. 1007, 2019).

From SSRN (non-US Law):

• Asim Jusic, An (Un)Exceptional Case: Strasbourg’s Court Reserved Nod to Religious Symbols in the Courtroom, (Forthcoming in Oxford Journal of Law and Religion (2019)).
• Radley Henrico, Proselytising the Regulation of Religious Bodies in South Africa: Suppressing Religious Freedom?, (Potchefstroom Electronic Law Journal, Vol. 22, 2019).
• Paul Johnson, The 'Gay Cake' Case - Lee (Respondent) v Ashers Baking Company Ltd and Others (Appellants) (Northern Ireland) [2018] UKSC 49, (February 27, 2019).
• Abu Umar Faruq Ahmad, Aishath Muneeza, Mohammad Omar Farooq & Rashedul Hasan, Post-Default Sukuk Restructuring: An Appraisal of Shari’ah Issues , (in Hassan, M. K. and Rashid, M. (eds.). Management of Islamic Finance Principle, Practice, and Performance, International Finance Review, Emerald Publishing, Volume 19, 113, Forthcoming).
• Puranjay K. Vedi, Working Paper: Tracing Burqa in Byzantine Christianity, (October 1, 2018).

From elsewhere:

• USCIRF, Legislation Fact Sheet, Anti-Extremism Laws, (March 2019).

Firefighter Not Entitled To Religious Exemption From Grooming Policy

In Smith v. City of Atlantic City, (D NJ, March 22, 2019), a New Jersey federal district court upheld the refusal by the Atlantic City Fire Department to grant a long-time employee a religious exemption from the Department's grooming policy.  Plaintiff is an African American male and a Christian who has recently decided to grow a 3-inch beard as an expression of his religious faith. Rejecting plaintiff's application for a temporary restraining order, the court concluded that he was unlikely to succeed on the merits of his free exercise, equal protection or Title VII claim.

Break-Away Moves By Methodist Congregation Are Invalid

In Laumalie Ma'oni'oni Free Wesleyan Church of Tonga v. Ma'afu, (UT App, March 21, 2019), a Utah state appellate court held that a mail-in vote to change the articles of incorporation of the Tongan United Methodist Church (TUMC) was invalid.  The amendments purported to break the congregation away from the parent United Methodist Church (UMC). The mail vote did not comply with the governance requirement of UMC's Book of Discipline which was incorporated by reference into TUMC's articles of incorporation.  Rejecting constitutional challenges, the court said in part:

[T]he district court’s interpretation and application of the Discipline was constitutionally sound. In resolving the dispute, the court looked to the corporation’s governing documents, “without inquiring into matters of church doctrine.” The Discipline requires any meeting of the Charge Conference or the Church Conference to be presided over and called by the district superintendent. The Discipline does not authorize mail-in voting....

Free Wesleyan argues that these matters relate to “faith and doctrine.” We disagree. Whether a corporate meeting must be called and presided over by a certain person and whether voting members must be present at a meeting are not matters of religious doctrine or faith.

Court Dismisses Suit Challenging Church's Internal Investigation

In Williams v. Kingdom Hall of Jehovah's Witnesses, (UT App, March 21, 2019), a Utah state appellate court upheld the dismissal of an intentional infliction of emotional distress claim brought by a member of the Jehovah's Witnesses against church bodies and individuals.  At issue was the manner in which a judicial committee of the Church conducted an investigation into plaintiff Ria Williams sexual conduct.  The court said in part:

In the summer of 2007, Williams met another Jehovah’s Witnesses congregant (“Church Member”). Williams and Church Member began seeing each other socially, but the relationship quickly changed and throughout the rest of the year Church Member physically and sexually assaulted Williams, who was a minor....

After questioning Williams about her sexual conduct, the Elders played an audio recording of Church Member raping Williams. Church Member recorded this incident and gave it to the Elders during their investigation of Williams. The recording was “several hours” in length. Williams cried and protested as the Elders replayed the recording. The Elders played the recording for “four to five hours” stopping and starting it to ask Williams whether she consented to the sexual acts. During the meeting Williams was “crying and physically quivering.” Williams conceded she was able to leave but risked being disfellowshipped if she did....

Allowing Williams’s claims in this case to be litigated would require the district court to unconstitutionally inject itself into substantive ecclesiastical matters. Williams argues she is not challenging the Church’s ability to determine what constitutes “sinful behavior”.... But Williams asks the factfinder to assess the manner in which the Church conducted a religious judicial committee, which requires it to assess religiously prescribed conduct....

We conclude Williams’s claim for IIED requires an inquiry into the appropriateness of the Church’s conduct in applying a religious practice and therefore violates the Establishment Clause of the First Amendment.

President Trump Issues Executive Order On Campus Free Speech

President Trump yesterday signed Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. (Full text). In lengthy remarks (full text) delivered by the President at the signing ceremony for the Executive Order, Trump emphasized the protection of religious speech.  He  introduced three students at the ceremony.  One, the president of Students for Life at Miami University, was required to post "trigger warnings" about a display of wooden crosses representing lives of the unborn. Another student from the University of Nebraska reported she was cursed at by staff and an instructor while standing at a table representing a conservative campus group. A third student from Northeast Wisconsin Technical College was told she was restricted to the campus free speech zone to hand out Valentine cards with messages such as "You are special" and "Jesus loves you."

President Trump said in part:

Today, we are delivering a clear message to the professors and power structures trying to suppress dissent and keep young Americans — and all Americans, not just young Americans like Ellen and Kaitlyn and Polly — from challenging rigid, far-left ideology.  People who are confident in their beliefs do not censor others — we don’t want to censor others — they welcome free, fair and open debate.  And that’s what we’re demanding.

Under the policy I am announcing today, federal agencies will use their authority under various grant-making programs to ensure that public universities protect, cherish — protect the First Amendment and First Amendment rights of their students, or risk losing billions and billions of dollars of federal taxpayer dollars.

The Executive Order itself, however, is vaguer, saying:

It is the policy of the Federal Government to: (a)  encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions;....

To advance the policy described in subsection 2(a) of this order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

Much of the Executive Order is devoted to other issues-- primarily transparency regarding the cost of college and student borrowing.

Non-Liturgical Protestant Navy Chaplains Refile In Long-Running Discrimination Litigation

Last year, a D.C. federal district court dismissed a long-running lawsuit brought by  non-liturgical Protestant Navy chaplains alleging discrimination against them by the Navy. (See prior posting.)  However the court severed certain claims with leave to file them in other jurisdictions.  Earlier this month those severed claims were included in a complaint filed in a Virginia federal district court.  The complaint (full text) in Lancaster v. Secretary of the Navy, (ED VA, filed 3/1/2019), summarized the allegations as follows:

This case addresses 27 Non-liturgical Navy Chaplains plaintiffs’ longstanding claims of retaliation and low fitness reports...; constructive discharge because of unlawful FOS [failures of selection]; and interference with their ministry, speaking, preaching and worship services based on denominational prejudice.

This retaliation resulted in plaintiffs’ FOS and either separation for FOS or constructive discharges. Senior Navy chaplains are the perpetrators and sources of these claims, primarily Roman Catholic and/or Liturgical Protestants, in positions of authority, influence and supervision representing and acting under the authority of the Navy and its CHC. The actions represent a pattern and practice of illegal retaliation and discrimination based on denominational hostility and prejudice.

WAVY News reports on the lawsuit.

Suit Charging Campus Anti-Semitism Is Settled

The Lawfare Project announced on Tuesday that a settlement has been reached in Volk v. Board of Trustees, a state court lawsuit by two Jewish students at San Francisco State University alleging anti-Semitic discrimination on campus. The suit in particular focused on the exclusion of Hillel from a campus Know Your Rights fair.  The case was scheduled to go to trial later this month.  Under the settlement, the University will issue a public statement saying that "it understands that, for many Jews, Zionism is an important part of their identity." It will hire a Coordinator of Jewish Student Life, and enhance anti-discrimination enforcement. It will allocate an additional $200,000 to promote viewpoint diversity and will allocate space on campus for a mural depicting such diversity. A similar federal court lawsuit was dismissed last October. (See prior posting.) Jewish News of Northern California reported on the settlement.

Two Church Leaders Plead Guilty To Tax Fraud Conspiracy Involving Diversion of Church Funds

On Tuesday, the U.S. Attorney's Office for the District of New Jersey announced that two church leaders have plead guilty to a charge of conspiracy to commit tax fraud:

The leader and the main treasurer of the Israelite Church of God in Jesus Christ admitted their respective roles today in a scheme in which both men caused the church to pay millions of dollars in personal expenses for the leader that the leader then omitted from his personal tax returns....

Grant and Warrington used their leadership positions in the church to divert to Grant millions of dollars belonging to the church and its members for Grant’s personal use and benefit. The defendants used a variety of methods to carry out the scheme. For example, Grant and Warrington created a purported entertainment company that portrayed Grant as an industry mogul whose wealth was derived from his success in the industry, thereby concealing from church members that his lifestyle was supported entirely by the church and donations from its members. 

Discrimination Suit By Jewish Woman Denied Admission To Social Work Program Moves Ahead

In Weiss v. City University of New York, (SD NY, March 18, 2019), a New York federal district court allowed a Jewish woman to move ahead with several racial and religious discrimination claims against City University of New York and its trustees, as well as against several administrators, growing out of the denial of plaintiff's application for admission to the school's Master of Social Work program.  Faigy Weiss was raised in the Hasidic Satmar community in New York, with Yiddish as her first language.  She alleges that the Dean for Diversity and Compliance told her that the social work school "conducted the group admissions interviews to weed out conservatives, because Trumps and Cruzes can’t be social workers" and that "Jews from religious backgrounds are too conservative to be social workers." The court held that these allegations sufficiently state an equal protection claim for discrimination based on race and religion, a claim under Title VI, and an Establishment Clause claim.

South Dakota Requires "In God We Trust" In Every Public School

Yesterday South Dakota Governor Kristi Noem signed Senate Bill 55 (full text) into law.  The new law requires every public school in the state to display the national motto "In God We Trust" in a prominent place. The law also provides for the state attorney general to assume the defense of any lawsuit that is filed challenging the law. Friendly Atheist reports on the new law.

ACA Mandate Does Not Violate RFRA

In Cash v. United States, (MD PA, March 20, 2019), a Pennsylvania federal district court rejected an attack on the Affordable Care Act's tax penalties for failing to purchase health insurance. Plaintiff taxpayers had religious objections to purchasing medical insurance and contended that the penalties substantially burdened their religious exercise under RFRA (see prior posting). The court disagreed, saying in part:

The Magistrate Judge ... found that the burden imposed on Plaintiffs was de minimis.... RFRA prohibits substantial burdens on the free exercise of religion absent a compelling governmental interest achieved by the least restrictive means.... Describing the thousands of dollars Plaintiffs have paid in ACA penalties since 2014 as de minimis may not be fair. However, that does not render the penalties substantially burdensome, either. Plaintiffs offer no indication that they are forced to decide between their religious beliefs and a benefit generally available. Moreover, Plaintiffs do not allege or otherwise show that the ACA penalty places a substantial burden on them to modify their religious conduct.... [T]he cost of the penalty would not exceed the cost to obtain the required level of insurance. Plaintiffs do not indicate how this applies substantial pressure to forego their religious beliefs. Staying true to their religion and avoiding health insurance would cost no more, and potentially cost less, than purchasing insurance at the expense of their religious beliefs.

Ecclesiastical Abstention Doctrine Governs Property Dispute In Hierarchical Church

In Holy Trinity Romanian Orthodox Monastery v. Romanian Orthodox Episcopate of America, (MI App., March 19, 2019), a Michigan state appellate court held that the trial court should have applied the ecclesiastical abstention doctrine to a church property dispute instead of the "neutral principles of law" approach.  Bishop Ioan Duvlea served as the abbot of the Holy Ascension Romanian Orthodox Christian Monastery until he was demoted and defrocked after a church trial.  A faction supporting him conveyed property belonging to the monastery to Holy Trinity, a new entity they formed.  The court, ruling in favor of the parent church body said in part:

This case requires determination whether Holy Trinity, a monastic corporate entity formed by a schismatic faction that left the ROEA, could claim ownership of the property that the faction conveyed from Holy Ascension before dissolving it. The ROEA contends that Holy Ascension owned but held in trust for the ROEA, a hierarchical church, the disputed property pursuant to church documents governing the ecclesiastical structure, polity, rules, discipline, and usage of the church with which Holy Ascension affiliated itself and to which it submitted....

In this case, the trial court failed to consider whether the ROEA constituted a hierarchical religious organization and did not examine the nature of the relationship of Holy Ascension with the ROEA and the Orthodox Church in America. The trial court failed to consider whether the actual adjudication of the legal claims in this case required the resolution of ecclesiastical questions, including the relationships between entities within the allegedly hierarchical religious denomination. Instead, the trial court stated without explanation that it found the dispute in this case merely secular requiring it to apply the neutral-principles-of-law approach. In so doing, the trial court erred.

The record reflects that the trial court substituted its interpretation of canonical texts and ignored the decisions of the ROEA relating to government of the religious polity. The trial court disregarded the evidence presented by the ROEA that required it to abstain and defer to the ROEA’s resolution of the property dispute. 

Repeal of Ban On Use of Civic Center For Worship Services Moots Injunctive Relief, But Not Damages

In Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, March 18, 2019), a South Carolina federal district court held that a church's request for injunctive relief was moot. The church initially rented space in the town's Civic Center for its worship services.  Subsequently the town changed its rules to bar renting of space for use for religious services. The church sued, and the town rescinded the ban. The church failed to show that the town might reinstate the ban.  The court said in part:

Although the resolution moots Redeemer Fellowship’s request for injunctive relief, it does not moot the church’s request for damages or for declaratory relief. Redeemer Fellowship’s prayer for relief asks that the court declare that the Town engaged in content-based discrimination and violated the church’s rights under the First and Fourteenth Amendments..... Redeemer Fellowship’s damages claim—the success of which depends on the court declaring that its constitutional rights were violated by the Town’s ban on religious worship services—survives this order. The court leaves it to the parties to determine whether or not Redeemer Fellowship did in fact suffer any damages by the Town’s prohibition of the church’s use of the Civic Center for their worship services from May 2018, when the church’s application for use of the Center was denied, until December 2018, when the Town rescinded the ban. 

Connecticut Diocese Settles Abuse Claims For $3.5M

The Catholic Diocese of Bridgeport, Connecticut announced yesterday that it has settled lawsuits filed last year by five victims of clerical sexual abuse.  The Maronite Order was involved in one of the cases.  The abuse took place almost 30 years ago.  The cases were settled through mediation for a total of $3.5 million. Most of the cost was covered by the Diocese's insurance. CT Post reports on the settlements.

Recent Prisoner Free Exercise Cases

In Schwartz v. Korn, 2019 U.S. Dist. LEXIS 38486 (ED TN, March 11, 2019), a Tennessee federal district court allowed an inmate to move ahead with his complaint that his food is not being prepared according to kosher requirements and he does not receive the same number of meals as other inmates.

In Khan v. Barela, 2019 U.S. Dist. LEXIS 38496 (D NM, March 11, 2019), a New Mexico federal district court dismissed a Muslim inmate's complaint that he was not provided  a clock, prayer schedule, or Muslim calendar, was deterred from participating in Ramadan and was not allowed to leave the pod on three occasions when Christian sermons were being delivered.

In Hardeman v. Trammell, 2019 U.S. Dist. LEXIS 39070 (ED OK, March 12, 2019), an Oklahoma federal district court dismissed an inmate's claim that limits on the amount of property that an inmate can possess led to confiscation of some of his religious books.

In Orum v. Michigan Department of Corrections, 2019 U.S. Dist. LEXIS 39278 (WD MI, March 12, 2019), a Michigan federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 222616, Dec. 11, 2018), and in a case in which a Jewish inmate complained that he was denied a religious diet and was retaliated against for filing a grievance about it, the court dismissed a number of plaintiff's claims but permitted him to move ahead with some of his RLUIPA and retaliation claims.

In Lombardo v. Freebern, 2019 U.S. Dist. LEXIS 39355 (SD NY, March 11, 2019), a New York federal district court dismissed a suit filed by a Jewish patient confined at a psychiatric facility. The suit claimed he was deprived of grape juice; denied access to his religious books and items; his conversation with Rabbi Schwab was interrupted; the menorah was broken; he was unable to attend the Passover Seder and the Eid ul-Fitr feast.

In Gates v. LeGrand, 2019 U.S. Dist. LEXIS 39766 (D NV, March 12, 2019), a Nevada federal district court accepted in part a magistrate's recommendation and allowed a Wiccan inmate to move ahead on his equal protection, but not his free exercise or due process, claim growing out of the denial of incense that he had been permitted to order.

Suit Seeks Change In Allegedly Anti-Semitic High School Curriculum

A suit seeking a writ of mandamus was filed last week in a Massachusetts state trial court against the city of Newton schools seeking a change in the high schools' history curriculum. The 60-page complaint (with over 400 pages of attachments and exhibits) (full text) in Dechter v. Newton School Committee, (MA Super. Ct., filed 3/11/2019) alleges in part:

Anti-Semitism is a deadly hatred. Defendants either disagree with this statement or share in this hatred because, for years, they have stubbornly refused to remove anti-Semitic and anti-Israel materials from the history lessons that they teach in the high schools of the City of  Newton. Despite significant community concerns, scholarly findings of anti-Jewish bias, and formal citizen requests for remedial action, Defendants have categorically and repeatedly refused to remedy the teaching of false and hateful stereotypes about Israel, Israelis, and the Jewish people. These refusals are not simply indecent and vile: they are also illegal under Massachusetts education and civil rights laws.

Newton Wicked Local reports on the lawsuit. (See prior related posting.)

ERISA Pre-Empts Jesuit Order's Claim For Proceeds of Priest's Retirement Account

In Wisconsin Province of the Society of Jesus v. Cassem, (D CT, March 18, 2019), a Connecticut federal district court dismissed breach of contract claims brought by a Jesuit Province against relatives of a deceased Jesuit priest in a suit over the proceeds of the priest's retirement accounts.  Four years before his death, the priest changed the beneficiaries of the accounts from his Jesuit Order to two of his relatives. The court describes the claim at issue:

Plaintiff alleges that the change in beneficiary designation was improper because Fr. Cassem’s vows prevented him from legally acquiring personal property and, therefore, he never owned the Accounts. Plaintiff alleges that “Fr. Cassem’s final vows constitute an enforceable contract among and between the Province and Fr. Cassem, through which Fr. Cassem fully and finally renounced and assigned any and all property then owned or later acquired to the Province.”... The Province argues that because Fr. Cassem was not entitled to retain or direct property for the benefit of any party other than the Province, the original designation of the Province as the beneficiary of the Accounts remains valid and enforceable. 

The court held, however, that plaintiff's contract claim is pre-empted by ERISA, saying in part:

The statute is intended to protect beneficiaries relying on long-accumulated benefits from having to fight challenges to those benefits under disparate standards.

The court rejected the Order's argument that ERISA pre-emption violates its rights under the Religious Freedom Restoration Act, saying in part:

whether or not the statute can apply to cases between private parties, RFRA certainly cannot be used as a procedural mechanism to legitimize a cause of action that contravenes federal law for a plaintiff that is contesting dismissal.... In any event, even if RFRA is applicable in the present case, it does not preclude ERISA preemption because ERISA does not impose a “substantial burden” on Plaintiff’s free exercise of religion.

Suit Challenging San Diego Schools' Anti-Islamophobia Program Is Settled

Freedom of Conscience Defense Fund announced Monday that it has finalized a settlement agreement (full text) with the San Diego Unified School District, resolving a lawsuit that it filed in 2017 challenging an Anti-Islamophobia program instituted by the school district to combat bullying and harassment of Muslim students.  (See prior posting.)  According to FCDF:

Under the terms of the settlement agreement, the District distributed a policy memo to area superintendents and principals regarding the First Amendment’s "limits on the conduct of public school officials as it relates to religious activity."