District Court Says Challenge To Trump's Alleged Muslim Travel Ban May Proceed

In International Refugee Assistance Project v. Trump, (D MD, May 2, 2019), a Maryland federal district court, in a case on remand from the U.S. Supreme Court and the 4th Circuit, refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. The Supreme Court's remand was ordered in light of its rejection of an Establishment Clause challenge in a parallel case (Hawaii II). In its latest decision, the district court said, however:

Notably, at no point in Hawaii II did the Supreme Court state that its conclusion that the Proclamation would satisfy rational basis review, based on the record before it and in the context of a motion for a preliminary injunction, required dismissal of the Establishment Clause claim in either that case or the present case. Indeed, two Justices, including one in the majority, identified the possibility that constitutional claims would proceed.

Setting out it reasons for allowing the constitutional challenges to now move ahead, the district court said in part:

Plaintiffs have provided detailed allegations for why the Proclamation is not rationally related to its stated national security interests and is instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims.

First, the Complaints provide detailed allegations of statements by the President exhibiting religious animus toward Muslims and articulating a desire to ban Muslims from entering the United States, including his statement as a presidential candidate that he planned to institute "a total and complete shutdown of Muslims entering the United States" and numerous later statements reaffirming this position... 

Contrary to the Government's claim during the hearing on the Motion, Hawaii II does not instruct courts to disregard these statements or any public pronouncements of a President, nor does it hold that the subjective intent of the President and his advisors in formulating and issuing the Proclamation is irrelevant. Rather, the Supreme Court specifically stated that this evidence "may be considered," so long as the "authority of the Presidency itself' is given its due....

Court Refuses To Dismiss Suit To Allow Christian Flag Outside Boston City Hall

In Shurtleff v. City of Boston, (D MA, May 3, 2019), a Massachusetts federal district court refused to dismiss a suit brought to enjoin the City from denying permission to a religious organization to display a Christian flag on a flagpole outside City Hall for an event marking Constitution Day and Citizenship Day event. The flag pole flies the city's flag except when it is used by outside groups for a flag to mark a special event. The court held that there are factual issues to be determined on plaintiffs' free speech claims-- whether this involves "government speech," and whether the city has imposed a reasonable, viewpoint neutral regulation in a limited public forum. Also factual issues remain on plaintiffs' Establishment Clause and Equal Protection claims.

HHS Adopts Final Rules On Conscience Protection In Health Care; Suit Filed Challenging New Rules

The U.S. Department of Health and Human Services Office of Civil Rights has submitted for publication in the Federal Register final rules on protecting the conscience rights of health care providers. The rules, set out in a 440-page release (full text), become effective in 60 days.  The Release summarizes the new rules:

This final rule revises existing regulations to ensure vigorous enforcement of Federal conscience and anti‐discrimination laws applicable to the Department, its programs, and recipients of HHS funds, and to delegate overall enforcement and compliance responsibility to the Department’s Office for Civil Rights (“OCR”). In addition, this final rule clarifies OCR’s authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in existing regulations to address violations and resolve complaints.

New York Times, reporting on the new rules, says in part:

some groups said they feared the provisions were overly broad and could imperil care for patients seeking reproductive health care. They also said it could lead to discrimination against gay or transgender patients and their children, and weaken public health efforts to expand childhood vaccinations.

Yesterday, San Francisco City Attorney Dennis Herrera announced that he has filed suit to invalidate the new rules. The complaint (full text) in City and County of San Francisco v. Azar, (ND CA, filed 5/2/2019), alleges in part:

The Final Rule requires the City and County of San Francisco (“City” or “San Francisco”)—in any and all circumstances—to prioritize providers’ religious beliefs over the health and lives of women, lesbian, gay, bisexual, or transgender people, and other medically and socially vulnerable populations. If San Francisco refuses to comply, it risks losing nearly $1 billion in federal funds that support critical health care services and other vital functions.

The suit alleges that the new rules are in violation of federal statutes and various constitutional provisions including the Establishment Clause.

House of Representatives Moves To Intervene To Defend Federal FGM Ban

As previously reported, last month the Department of Justice dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause.  Yesterday, the House of Representatives filed a motion to intervene (full text) in the case to defend the constitutionality of the statute. The Detroit Free Press reports on this move by House leaders.

Today Is National Day of Prayer

Earlier this week, President Trump issued a Presidential Proclamation (full text) declaring today as a National Day of Prayer.  The Proclamation is called for by 36 USC §119 passed by Congress in 1988. The Proclamation states in part:

Our Nation acknowledges that religious liberty is a natural right, given to us by our Creator, not a courtesy that government extends to us.  The First Amendment recognizes the freedom of religion and safeguards this right against government infringement.  The United States’ steadfast commitment to upholding religious freedom has ensured that people of different faiths can pray together and live in peace as fellow American citizens.  We have no tolerance for those who disrupt this peace, and we condemn all hate and violence, particularly in our places of worship.

According to CBN News, last night the President hosted 100 religious leaders of a wide variety of faiths at a White House dinner.  In remarks, the President said in part:

All of us in this room send our love and prayers to the Jewish Americans wounded at the Chabad of Poway shooting in California. And our hearts break for the life of Laurie Gilbert-Kaye who was so wickedly taken from us."

We mourn for the Christians murdered in Sri Lanka on Easter Sunday and grieve for the Muslims murdered at their mosques in New Zealand.  Here at home, we also remember the three historically black churches burned recently in Louisiana and the horrific shooting last year at the Tree of Life Synagogue in Pittsburgh.

The non-governmental National Day of Prayer Committee has scheduled an observance in Washington, D.C. for this evening.

UPDATE: Vice President Pence spoke at a White House Rose Garden ceremony marking the National Day of Prayer. (full text of remarks).

Georgia Institutes Investigation of Catholic Church Sex Abuse Claims

The Atlanta Journal Constitution reports that Georgia's Attorney General has announced an investigation into past sexual abuse claims in the Catholic Church. The investigation will be carried out by Georgia's Prosecuting Attorneys' Council. Atlanta Archbishop Wilton Gregory and Savannah Bishop Gregory Hartmayer both support the investigation. Other states have carried out similar investigations.

Survey of Antisemitism Worldwide Released

Yesterday, Tel Aviv University's Kantor Center released its report Antisemitism Worldwide 2018.  The 148-page report examines anti-Semitism around the world, surveying both the number of incidents and underlying causes and trends.  It says in part:

The most disturbing development, that keeps continuing and intensifying since 2016, is that Jews in some countries feel they live in a state of emergency, because of the continuing rise, most notably in Western Europe and North America, in antisemitic manifestations.

- As a result Jews started questioning and doubting their association with places and societies they have lived in for long, sometimes for centuries....

The normalization and mainstreaming of antisemitism in public forums, debates and discussions is manifested in all media channels, most notably the social networks. Antisemitism is no longer an issue confined to the activity of the far left, far right and radical Islamists triangle - it has mainstreamed and became an integral part of life.... 

Mainstreamed as well is the growing use of of antisemitic terms in anti-Zionist discourse, and the disproportionate hostility directed against the Jewish nation-state, which resumes Jewish characteristics.

Canadian Court Refuses To Enjoin Law Allowing Gay Student Associations

In PT v Alberta, (Alberta Ct. App., April 29, 2019), the Alberta (Canada) Court of Appeal in a 2-1 decision upheld a trial court's refusal to issue an interim injunction staying operation of challenged provisions of the School Act while its constitutionality is being litigated.  At issue are provisions which empower students to create voluntary student organizations that create a welcoming environment, especially for LGBTQ+ students. Parents, along with numerous Christian schools and organizations, sued claiming that the law infringed their rights under the Canadian Charter of Rights and Freedoms by depriving parents of choice in the education of their children and their ability to educate their children in accordance with their moral and religious values. Calgary Star reports on the decision.

USCIRF Issues 2019 International Religious Freedom Report

On April 29, the U.S. Commission on International Religious Freedom released its 2019 Annual Report on International Religious Freedom. The 234-page report recommends that 16 countries be designated as "countries of particular concern" because of their "systematic, ongoing, egregious violations" of religious freedom.  Ten of those are already designated as CPC's by the State Department-- Burma, China, Eritrea, Iran, North Korea, Pakistan, Saudi Arabia, Sudan, Tajikistan, Turkmenistan. The six recommended additions are Central African Republic, Nigeria, Russia, Syria, Uzbekistan, and Vietnam. USCIRF also placed 12 countries on its "Tier 2" list for less serious violations of religious liberty. The report details the conditions in each of these 28 nations. 

Additionally the Report recommends five non-state entities be designated "entities of particular concern" because of their suppression of religious freedom. Also USCIRF makes various policy recommendations to the Administration and to Congress.

ADL Releases 2018 Audit of Anti-Semitic Incidents

Yesterday, the Anti-Defamation League released its annual Audit of Anti-Semitic Incidents for 2018. The organization summarized its findings:

The U.S. Jewish community experienced near-historic levels of anti-Semitism in 2018, including a doubling of anti-Semitic assaults and the single deadliest attack against the Jewish community in American history... ADL’s annual Audit of Anti-Semitic incidents recorded a total of 1,879 attacks against Jews and Jewish institutions across the country in 2018, the third-highest year on record since ADL started tracking such data in the 1970s.

In a year marked by the white supremacist shooting spree at a Pittsburgh synagogue, which claimed 11 lives, and punctuated by a dramatic surge in white supremacist propaganda activity nationwide, ADL’s Audit identified 59 people who were victims of anti-Semitic assaults in 2018, up from 21 in 2017. While the overall number of incidents represents a 5 percent decline from 1,986 incidents reported in 2017, the number of incidents last year remained at near-historic levels – 48 percent higher than the total for 2016 and 99 percent higher than in 2015.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In In re Alief Vietnamese Alliance Church and Phan Phung Hung, (TX App., April 30, 2019), a Texas state appellate court held that a defamation claim by a church's former interim pastor, Paul Nguyen, against the Church and its senior pastor Phan Phung Hung should be dismissed under the ecclesiastical abstention doctrine.  At issue were statements by Hung that Nguyen had committed adultery with a female church member. In a 2-1 decision, the majority said in part:

We conclude that Hung's allegedly defamatory statements are ... "inextricably intertwined" with matters relating to an internal struggle between a current and former leader of the Church over Church governance, the standard of morals required of leaders of the Church, and the reason for Nguyen's leaving or being expelled from the Church....

Even if there is a dispute over Hung's motivation in making the statements—either as part of a disciplinary procedure due to the alleged adultery or merely out of vindictiveness towards Nguyen, who had criticized Hung's pastoring decisions—these statements were made in the context of expelling a member and former leader of the Church, or, alternatively, the Church member's voluntarily quitting his leadership positions and quitting the Church—and then refusing to meet with Church leadership to resolve the dispute—either version of which is inherently an ecclesiastical concern as a matter of law.

Judge Landau filed a dissenting opinion.

Latest NYC Emergency Measles Order Upheld

In C.F. v. New York City Department of Health and Mental Hygiene, 2019 NYLJ LEXIS 1419 (Kings Cty. Sup. Ct., April 3, 2019), a New York state trial court judge has upheld the latest version of New York City's declaration of a public health emergency to combat the measles outbreak.  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 and issuing the attendant orders challenged herein. The evidence in this regard is largely uncontroverted. The unvarnished 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. It has already begun to spread to remote locations....

The court went on to reject petitioner's scientific, religious and moral objections to the orders issued by the Department of Health:

Petitioners' medical experts opine, variously, that the MMR vaccine is ineffective, is of greater risk than non-vaccination and that the MMR vaccine itself propagates the very disease it was designed to prevent. These contentions are completely unsupported by studies, medical literature or other acceptable evidence....

The religious objection exemption contained in Public Health Law 2164(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. Even if it did apply, the affidavits ... are entirely unsupported by an affidavit of a religious official (priest, rabbi, etc.) or other doctrinal documentation tending to support their opinion....

Petitioners have raised various moral objections seemingly centered around a claim that the order(s) would compel forced vaccination. An examination of the orders indicates, and respondents concede that they do not require forcible vaccination. Accordingly, this court need not address the issue of forcible vaccination....

California Bishops Prevail In Part On Anti-SLAPP Defense To Abuse Concealment Claims

In Emens v. California Catholic Conference, (CA Super. Ct., April 17, 2019), a California state trial court granted a portion of an anti-SLAPP motion filed by the bishops of California's 11 dioceses seeking to strike a broad complaint filed against them charging that they have concealed clergy sex abuse. The complaint in the case (full text) filed last October charges that the concealment actions by the various bishops amount to a public nuisance, a private nuisance and civil conspiracy.  It asked for an order requiring release of the names of all clergy accused of child molestation and their history of abuse. California's anti-SLAPP law allows courts to strike a complaint that arises from acts in furtherance of free speech on a public issue unless plaintiff establishes there is a probability that he or she will prevail.

Finding that plaintiff has not established the probability of prevailing on the merits, the court struck portions of the complaint which allege actions in furtherance of free speech rights, but allowed plaintiff to move ahead on those claims that are not based on the exercise of free expression, saying in part:

Some of the conduct alleged does implicate the right of free speech, including the right not to speak. This would include the right not to publicly disclose the names of priests against whom allegations were made which were determined to be unfounded or lack credibility, and disclosing the names of priests against who allegations were made of conduct in the 1950’s where there was no investigation and where the priests have passed away.

The allegation that defendants attacked the credibility of victims does implicate free speech. Defendants may address the credibility of those making accusations against priests. 

Allowing child molesters to live in the community without notice to the community and transferring alleged molesters to new parishes without warning of the general public has First Amendment free speech implications. The actions are not permitting molesters to live in the community and transferring accused molesters, but doing this without notice to the affected communities. There are no allegations that the priests at issue had been convicted of any crime, or that notice was mandated. This would include accusations made against priests which were determined to lack credibility and to be without merit.

Concealing information regarding the actions of defendants and their agents from victims of past abuse also implicates free speech, as it is a general allegations as to all information regarding any reports of abuse, whether that information is connected to the abuse of a particular victim or there was any relation between the time of the abuse and the time of the information, and without regard to the credibility of the information. 

The remaining allegations do not involve the right to free speech or petition. There is no right to conceal sexual assaults from authorities. Protecting abusers from criminal prosecution is neither free speech nor petition. Making affirmative representations of the fitness of priests for assignments which included working with children while concealing information regarding the sexual misconduct of those priests is not an issue of free speech, but an issue of false speech.

Pacific Standard reports on the press conference held yesterday by the plaintiff and his attorneys who see the decision as a victory since it allows plaintiff to move ahead on some of his allegations.

Washington Catholic Hospitals Settle Suit Charging Them With Failure To Provide Charity Care

Washington state's attorney general yesterday announced the filing of a consent decree (full text) in State of Washington v. Franciscan Health System, (WA Super. Ct., April 29, 2019).  The settlement grows out of a lawsuit filed in 2017 against eight CHI Franciscan hospitals alleging that they violated the state's Consumer Protection Act by failing to make charity care available to tens of thousands of patients who were entitled to it under state law. As summarized by the AG's press release, the hospitals "will forgive as much as $20 million in debt, pay $2.22 million in refunds, pay the Attorney General’s Office $2.46 million, and rehabilitate the credit of thousands of patients who qualified for charity care between 2012 and 2017 but did not receive it."  The Consent Decree also requires detailed changes in the hospitals' procedures for providing financial assistance to patients.

Certiorari Denied In Church Trademark Dispute

The U.S. Supreme Court yesterday denied review in Universal Church, Inc. v. Toellner, (Docket No. 18-1159, certiorari denied 4/29/2019).  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.

Satanic Temple Sues Over Withdrawal Of Permission To Erect Monument

Minneapolis Star Tribune reported yesterday that The Satanic Temple is suing Belle Plaine, Minnesota for its withdrawal of permission to erect a temporary memorial to fallen soldiers in Veterans' Memorial Park. The monument would have been the first Satanic monument on public property in the country. The paper reports on the sequence of events leading to the lawsuit:

... [I]n 2017 [the city approved a different organization's monument:] a steel silhouette known as “Joe” that depicted a soldier kneeling before a cross. Soon, someone complained that “Joe” violated constitutional separation of church and state.

City leaders, fearing a lawsuit, ordered its removal. That triggered weeks of vehement protests in the city.... So the council designated an area in the park as a “limited public forum,” open to temporary memorials to fallen veterans.

The Satanic Temple... applied to install its own monument.... The city granted a permit, and the temple designed a 23-inch black cube inscribed with inverted pentagrams and topped with an upturned helmet, which it planned to install in July 2017.

That plan prompted more protests. So exasperated city officials decided to shut down the limited public forum, ordering the removal of “Joe” and withdrawing permission for the temple’s monument.

[Thanks to Tom Rutledge for the lead.] 

Recent Articles of Interest

From SSRN:

• Linda R. Meyer, Unreasonable Revelations: God Told Me to Kill, (Pace Law Review, Forthcoming).
• Philip Ostien, Ahmed Garba & Musa Abubakar, Nigeria's Sharia Courts,  (Chapter 2 of Sharia Implementation in Northern Nigeria Twenty Years On: Six Research Reports and an Overview, M. Tabiu, A.R. Mustapha and P. Ostien, eds., Forthcoming).
• Lisa Whitacre, Putting the Squeeze on Lemon: Lund, Bormuth, and the False Line Between Chaplain-Led and Legislator-Led Prayer, (March 17, 2019).
• Bridget J. Crawford & Emily Gold Waldman, Ministerial Magic: Tax-Free Housing and Religious Employers, (University of Pennsylvania Journal of Constitutional Law Online, Forthcoming).
• Amanda Harmon Cooley, Justiciability and Judicial Fiat in Establishment Clause Cases Involving Religious Speech of Students, (March 30, 2019).
• Gautam Bhatia, Religious Speech, (The Oxford Handbook for Free Speech (Forthcoming)).
• Nicholas Aroney & Benjamin Saunders, Freedom of Religion in Australia, (in Matthew Groves, Daniel Meagher and Janina Boughey (eds), The Legal Protection of Rights in Australia (Hart Publishing, Forthcoming)).
• Kyle Velte, Straightwashing the Census, (March 22, 2019).

From SmartCILP:

• Helen Y. Chang, A Brief History of Anglo-Western Suicide: From Legal Wrong to Civil Right. 46 Southern University Law Review 150-194 (2018).

Texas "No Boycott of Israel" Law Held Unconstitutional

A Texas federal district court last week held unconstitutional the Texas statute requiring all state contracts for goods or services to include a written verification from the contracting company that it is not, and during the contract will not, boycott Israel. In Amawi v. Pflugerville Independent School District, (WD TX, April 25, 2019), a Texas federal district court granted a preliminary injunction against enforcement of the anti-BDS statute or enforcement of any clause in state contracts barring boycott of Israel.  The court, in a 56-page opinion, said in part:

Plaintiffs are likely to succeed on their claims that H.B. 89 is unconstitutional under the First Amendment because it (1) is an impermissible content- and viewpoint-based restriction on protected expression; (2) imposes unconstitutional conditions on public employment; (3) compels speech for an impermissible purpose; and (4) is void for vagueness.

The suit was brought by five individuals who wished to contract, or had contracted, to provide services such as speech therapy and early childhood evaluations for a school district; translation of an art essay for a state University museum; judging high school debate tournaments; and providing podcasts for a public radio station. The court concluded that all of these were contracts with sole proprietorships, and were thus covered by the statute. Washington Post reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Catholic Agency Challenges Michigan's Child-Placement Anti-Discrimination Policy

Last week, a second lawsuit was filed challenging a settlement entered into by Michigan's Attorney General in which she agreed to enforce anti-discrimination provisions against adoption and foster care agencies contracting with the state which refuse to place children with same-sex couples or LGBTQ individuals who are otherwise qualified as foster care or adoptive parents. The first challenge was filed earlier this month in federal court. In last week's lawsuit, Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (MI Ct. Claims, filed 4/25/2019), filed in state court, the complaint (full text) cites protections for faith-based child placement agencies found in Michigan statutes such as MCL §722.124e and §722.124f, and alleges in part:

[T]he Michigan Legislature intended to-- and did-- protect the religious exercise of faith-based providers like Catholic Charities.... Defendants have adopted a new policy that forces Catholic charities to choose between violating its religious beliefs about same-sex marriage and shutting down its foster care and adoption ministry.  Defendants' new policy misinterprets state law, violates Catholic Charities' rights under the U.S. and Michigan Constitutions, and adopts the anti-religious views and policy preferences of Defendant Attorney General Dana Nessel-- who has previously criticized Michigan's statutory protections for faith-based foster care and adoption providers as "a victory for the hate mongers."

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

Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In McRaney v. North American Mission Board of the Southern Baptist Convention, (ND MS, April 22, 2019), a Mississippi federal district court dismissed on ecclesiastical abstention grounds a defamation suit by a the former executive director of the Baptist Convention of Maryland and Delaware (BCMD).  Plaintiff contended that the North American Mission Board defamed him to BCMD and tortiously interfered with his employment contract.  The court said that resolution of plaintiff's claims would require it to determine whether the Mission Board had a valid religious reason for its actions-- and "That the court cannot do."  Baptist Press reports on the decision.