Church Sues Over Massachusetts COVID Regulations

Suit was filed yesterday in a Massachusetts federal district court by a church challenging the state's COVID-19 reopening regulations. The complaint (full text) in New Life South Coast Church v. Baker, (D MA, filed 5/10/2021), alleges in part:

Massachusetts’ phased COVID-19 reopening regulations, both as drafted by the Commonwealth and as implemented by the City, single out places of worship for differential and disfavored treatment. Under those regulations, restaurants, theaters, public transit, and other places of public gathering have limited or no restrictions on capacity, beyond the practical constraints of social distancing, while places of worship must follow more burdensome capacity restrictions. In addition, the regulations single out places of worship for special disfavor by barring “communal gatherings” before and after the religious service—a restriction that applies to no other institution or activity, and that purports to regulate how Massachusetts citizens may exercise religion.

First Liberty issued a press release announcing the filing of the lawsuit. 

Archdiocese Sues For in-Person Access To Inmates

The Catholic Archdiocese of Milwaukee last week filed suit in state court against the Wisconsin Department of Corrections challenging its continued ban on volunteer clergy visiting prison inmates during the COVD crisis. The complaint (full text) in Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., filed 6/7/2021),  alleges that the policy violates statutory provisions in Wisconsin on clergy access to prisons as well as the state constitution's protection of religious liberty. Wisconsin Institute for Law and Liberty issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• R. George Wright, Free Exercise and the Public Interest After Tandon v. Newsom, (University of Illinois Law Review, Forthcoming).
• Amel K. Abdallah, Islamic Sharia and Arbitration in GCC States: The Way Ahead, (International Review of Law, Volume 9, Regular Issue 2, 2020, p.316).
• Daniel J.H. Greenwood, Partnership, Democracy, and Self-Rule in Jewish Law, (Touro Law Review, Vol. 36, No. 959, 2021).
• Anmol Singla, Homosexuality Post Puttaswamy Judgement - A Constitutional Violation of Right to Privacy?, (April 29, 2021).
• David Orentlicher & Judit Sandor, Decisions at the End of Life,  (Forthcoming, The Oxford Handbook of Comparative Health Law edited by David Orentlicher and Tamara Hervey.)
• Alfitri Alfitri, Bureaucratizing Fatwā in Indonesia: The Council of Indonesian Ulama and Its Quasi-Legislative Power, (Ulumuna Journal of Islamic Studies, Vol. 24, No. 2, 2020, p.367-397).

UPDATE: The April 2021 issue of Journal of Law and Religion has recently been published. It includes a Symposium on Law, Religion, and Same-Sex Relations in Africa.

Indiana Trial Court Dismisses Catholic School Teacher's Suit Against Archdiocese

As previously reported, in May 2020 in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., an Indiana trial court refused to dismiss a lawsuit against the Catholic Archdiocese brought by a Catholic high school teacher who the Archdiocese ordered fired after he entered a same-sex marriage. In July 2020, the U.S. Supreme Court broadly interpreted the "ministerial exception" doctrine as it applies to teachers in religiously affiliated schools. Subsequently, in State of Indiana ex rel. Roman Catholic Archdiocese of Indianapolis, Inc. v. Marion Superior Court, (IN Sup. Ct., Dec. 10, 2020), the Indiana Supreme Court denied a writ of mandamus and prohibition and remanded the case to a different trial court judge "to consider new and pending issues and reconsider previous orders in the case."  Now, in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc.,  (IN Super. Ct., May 7, 2021), the trial court dismissed the case for failure to state a claim on which relief can be granted. Legal Reader reports on the case.

11th Circuit: Juror Who Heard From Holy Spirit Should Not Have Been Removed

In United States v. Brown, (11th Cir., May 6, 2021), the U.S. 11th Circuit Court of Appeals, sitting en banc, by a vote of 7-4 held that a district court judge abused his discretion in replacing a juror with an alternate in the trial of a former Florida Congresswoman who was convicted on most of the fraud, ethics and tax violation charges against her. The majority summarized:

This appeal requires us to decide whether a district judge abused his discretion by removing a juror who expressed, after the start of deliberations, that the Holy Spirit told him that the defendant, Corrine Brown, was not guilty on all charges. The juror also repeatedly assured the district judge that he was following the jury instructions and basing his decision on the evidence admitted at trial, and the district judge found him to be sincere and credible. But the district judge concluded that the juror’s statements about receiving divine guidance were categorically disqualifying. Because the record establishes a substantial possibility that the juror was rendering proper jury service, the district judge abused his discretion by dismissing the juror. The removal violated Brown’s right under the Sixth Amendment to a unanimous jury verdict. We vacate Brown’s convictions and sentence and remand for a new trial. 

Two concurring and two dissenting opinions were also filed. Judge Rosenbaum's dissent, joined by Judge Wilson and Martin, said in part:

Every judge of this Court agrees on this much: the same rule governs dismissal of both the juror who says his religious authority told him the defendant is not guilty on all charges and the one who says his religious authority told him the defendant is guilty on all charges. So let’s be clear about what we’re really doing today: we are holding that a district judge is powerless to dismiss a juror who, on a record like this one, says the Holy Spirit told him the defendant is guilty on all charges and he trusts the Holy Spirit—even though the judge finds after investigation that the juror is not capable of basing his guilty verdict on the evidence but instead will base his verdict on what he perceives to be a divine revelation.

A 3-judge panel of the 11th Circuit had affirmed the district court's decision. (See prior posting.) Politico reports on the en banc decision. 

Yesterday Was National Day of Prayer

A federal statute, 36 USC 169h, provides:

The President shall set aside and proclaim the first Thursday in May in each year as a National Day of Prayer, on which the people of the United States may turn to God in prayer and meditation at churches, in groups, and as individuals.

Yesterday was the first Thursday in May, and earlier this week President Biden issued a Proclamation (full text) announcing the day. It reads in part:

Today, we remember and celebrate the role that the healing balm of prayer can play in our lives and in the life of our Nation.  As we continue to confront the crises and challenges of our time — from a deadly pandemic, to the loss of lives and livelihoods in its wake, to a reckoning on racial justice, to the existential threat of climate change — Americans of faith can call upon the power of prayer to provide hope and uplift us for the work ahead.

UPDATE: The President's Proclamation has created some controversy. A Liberty Counsel press release says in part:

For the first time in 70 years, there was not a public prayer gathering at the U.S. Capitol Building yesterday during The National Day of Prayer, and Joe Biden made no mention of God in his proclamation.

Eviction of Church Did Not Violate RLUIPA

In Schworck v. City of Madison, (WD WI, May 6, 2021), a Wisconsin federal district court dismissed a suit for damages brought against city officials by The Lion of Judah House of Rastafari and its founders who claim that their eviction from their leased premises violated their rights under RLUIPA, the free exercise clause, the equal protection clause and other provisions. The premises served as a homeless shelter, and a location for the church which distributed cannabis to members in exchange for donations. The lessees were never able to obtain a certificate of occupancy allowing them to operate the former retail store site as a church. The court said in part:

[N]ot only have plaintiffs failed to link to any land use regulation a substantial burden, but they have failed to submit evidence of a substantial burden on their religious practices altogether, thus defeating both plaintiffs’ RLUIPA and First Amendment claims on the merits....

In particular ... plaintiffs’ asserted substantial burden on their religious practices is the October 16, 2019, eviction from the property. Critically, they do not take the position that (1) compliance with the City’s municipal ordinances would violate their religious beliefs, (2) the costs and inconvenience of compliance posed a substantial burden, or (3) the uncontested municipal court proceedings created a substantial burden on their ability to exercise their religious beliefs....

[E]ven assuming that defendants or any City officials treated plaintiffs’ unfairly during the permitting or inspection process (and again, the evidence does not support such a finding), a reasonable trier of fact would have no basis to conclude that treatment impacted the October 16, 2019, eviction from the property on this record.

Wisconsin State Journal has more on the decision.

Court Enjoins Enforcement of NJ Township's Ordinances Aimed At Orthodox Jewish Community

In WR Property LLC v. Township of Jackson, (D NJ, May 5, 2021), a New Jersey federal district court issued a preliminary injunction against enforcement of two township ordinances which effectively prevent construction of Jewish schools in most of Jackson Township's residential zones and which interfere with constructing of eruvim  (symbolic religious boundary markings). The court concluded that plaintiffs were likely to succeed on the merits of their free exercise and equal protection claims, finding sufficient evidence that the ordinances were enacted with a discriminator purpose. Both the Department of Justice and the state of New Jersey have previously sued the township over its targeting of Orthodox Jews.

Connecticut Supreme Court Hears Arguments In Challenge To Gym's Women's Section

The Connecticut Supreme Court heard oral arguments (audio of full arguments) in Commission on Human Rights and Opportunities v. Edge Fitness LLC, (5/5/2021). Courthouse News Service reports in detail on the oral arguments and describes the issues involved:

In the underlying case, two gyms run by Edge Fitness set aside special workout areas only for women, catering primarily to devout Muslim and Jewish women who are forbidden by their religious beliefs to exercise with men. Nobody complained to the gyms’ management, according to the gyms’ attorneys.

After the separate sections were created, however, two male gym members filed discrimination complaints with the state Commission on Human Rights and Opportunities. A hearing officer initially concluded the separate workout areas did not violate the state law, likening the areas to single-sex bathrooms and locker rooms.

Briefs in the case are available online.

Denial of Insurance Coverage For Gender Dysphoria Violates ACA

In Pritchard v. Blue Cross Blue Shield of Illinois, (WD WA, May 4, 2021), a Washington federal district court held that denying a transgender male insurance coverage for treatment of gender dysphoria violates the sex discrimination ban in the Affordable Care Act.  At issue was an exclusion in the Catholic Health Initiatives Health Plan that prevented a minor covered by his mother's health insurance from receiving an implant that delivers puberty-delaying hormones and a mastectomy.  The ACA incorporates the anti-discrimination provisions of Title IX. The court also rejected defendant's RFRA defense, concluding that RFRA only applies in suits in which the government is a party.

European Commission Appoints New Special Envoy For Freedom of Religion

 In-Cyprus reports today:

The European Commission has decided to appoint former crisis management and ebola coordination Commissioner Christos Stylianides, a Cypriot national, as Special Envoy for the promotion of freedom of religion or belief outside the EU, effective immediately.

According to the Commission, the Special Envoy will be attached to Vice-President Margaritis Schinas, who is in charge of leading the Commission`s dialogue with churches and religious associations or communities, and with philosophical and non-confessional organisations. Freedom of religion or belief is under attack in many parts of the world.

An ADF press release points out that the appointment comes after the position has been vacant for two years.

9th Circuit Hears Arguments On Idaho Ban Of Transgender Women In Sports

The U.S. 9th Circuit Court of Appeals on Monday heard oral arguments (video of full arguments) in Hecox v. Little, (5/4/2021).  In the case, an Idaho federal district court (full text of decision) in August 2020  held unconstitutional Idaho's law that bars transgender women from participating on women's sports teams. Yahoo News reports on the oral arguments.

Biden Issues Good Wishes On Orthodox Christian Easter Day

On Sunday, President Joe Biden issued a statement (full text) extending warm wishes from himself and the First Lady to their friends in the Orthodox Christian community observing Easter on that day. The statement said in part:

This is also a season of remembrance—to honor the sacrifice Jesus Christ made for the world and to stand in solidarity with all those in the Orthodox community who have been persecuted for their faith and those who remain under threat today.

Montana Makes It More Difficult To Obtain Transgender Name Change On Birth Certificates

Montana Governor Greg Gianforte recently signed Senate Bill 280 (full text) which provides in part:

The sex of a person designated on a birth certificate may be amended only if the department receives a certified copy of an order from a court with appropriate jurisdiction indicating that the sex of the person born in Montana has been changed b y surgical procedure.

Metro Weekly reports on the new law.

Seventh Day Adventist Loses Failure To Accommodate Claim

In Staple v. School Board of Broward County, Florida, (SD FL, April 30, 2021), a Florida federal district court dismissed a Seventh Day Adventist's Title VII religious discrimination claim. Plaintiff was a shift supervisor for the county's school bus drivers.  He wanted to alter his hours in the winter months so he would not need to work after sundown on Fridays.  His supervisor instead insisted that he use his hours accrued for vacation and sick leave. The court held that this did not amount to discharge or discipline, which is a prerequisite to a failure to accommodate claim. Mere adverse employment action short of that, while it supports a disparate treatment claim, does not, according to the court, support a failure to accommodate claim. The court also dismissed his claim under the Florida Religious Freedom Restoration Act, finding that he did not allege a substantial burden on his religious exercise.

Recent Articles of Interest

From SSRN:

• Rachel Barron, 'Pre-Nup' Is Not A Dirty Word: Cohabitation Agreements, Prenuptial Agreements, Marital Property Agreements, Marital Property Agreements, and the Christian Family Law Attorney, (June 24, 2020).
• Nathan B. Oman, "Established Agreeable to the Laws of Our Country": Mormonism, Church Corporations, and the Long Legacy of America's First Disestablishment,  Journal of Law & Religion (forthcoming).
• Michael Lewis, HB 544 and the Freedom of Religion, (N.H. Bar News 2021).
• Duncan Wallace, The Social Construction Theory of the Corporation, (March 25, 2021).
• Ethan J. Leib, The Anxiety of Influence and Judicial Self-Aggrandizement in Rabbinic Jurisprudence, (36 Constitutional Commentary ___ (Forthcoming 2021).
• Kent Greenfield & Daniel Rubens, Corporate Personhood and the Putative First Amendment Right to Discriminate, (Forthcoming in the Research Handbook on Corporate Purpose and Personhood (Elizabeth Pollman & Robert B. Thompson, eds.,Edward Elgar Publishing)).
• Johnny Davis, To Reform and Help Reunite America, Conservatives Must Embrace the Natural Law of the Founders, (April 24, 2021).
• Paul Benjamin Linton, Overruling Roe v. Wade: Lessons from the Death Penalty, (48 Pepperdine Law Review 1 (2021)).
• Alfriti Alfitri, Protecting Women from Domestic Violence: Islam, Family Law, and the State in Indonesia, (Studia Islamika, Vol. 27, No. 2, 2020).

From SmartCILP:

• Jonathan Cantarero, Religion in the Writing: A Literary Analysis of Justice Kennedy on Abortion, 20 University of Maryland Law Journal of Race, Religion, Gender & Class 36-72 (2020).

Suit Challenges Connecticut Elimination of Religious Exemption To Immunization Requirement

Suit was filed last week in a Connecticut federal district court challenging Connecticut's recent elimination of religious exemptions to school immunization requirements.  The suit was brought by three parents-- Greek Orthodox, Catholic and Muslim-- and two advocacy groups. The complaint (full text) in We the Patriots USA, Inc. v. Connecticut Office of Early Childhood Development, (D CT, filed 4/30/2021), contends that the repeal violated plaintiffs' rights to free exercise of religion, privacy and medical freedom, equal protection, child rearing, as well as of the Individuals With Disabilities Education Act. Bronx News 12 reports on the lawsuit.

President Declares May As Jewish American Heritage Month

Today President Biden issued a Proclamation (full text) declaring May 2021 as Jewish American Heritage Month. The Proclamation reads in part:

Alongside this narrative of achievement and opportunity, there is also a history — far older than the Nation itself — of racism, bigotry, and other forms of injustice.  This includes the scourge of anti-Semitism.  In recent years, Jewish Americans have increasingly been the target of white nationalism and the antisemitic violence it fuels.

As our Nation strives to heal these wounds and overcome these challenges, let us acknowledge and celebrate the crucial contributions that Jewish Americans have made to our collective struggle for a more just and fair society; leading movements for social justice, working to ensure that the opportunities they have secured are extended to others, and heeding the words of the Torah, “Justice, justice shall you pursue.”

A website honoring the month has been created by The Library of Congress, National Archives and Records Administration, National Endowment for the Humanities, National Gallery of Art, National Park Service and United States Holocaust Memorial Museum.

Biden Nominates Sarah Margon To State Department Human Rights Post

Yesterday President Biden submitted to the Senate the nomination of Sarah Margon to be Assistant Secretary of State for Democracy, Human Rights, and Labor. According to Wikipedia:

Margon began her career as a humanitarian and conflict policy advisor for Oxfam. She later worked as a staffer on the United States Senate Foreign Relations Subcommittee on Africa and Global Health Policy and as a foreign policy advisor to Senator Russ Feingold. She later worked as the associate director for sustainable security and peace-building at the Center for American Progress and deputy Washington director of Human Rights Watch. Margon has most recently worked as a U.S. foreign policy advisor for the Open Society Foundations.

The State Department Bureau of Democracy, Human Rights and Labor works to advance human rights, including freedom of religion.

State Moves To Restrict Abortions Continue

A number of states continue attempts to restrict abortion rights.

In Montana, Governor Greg Gianforte last Monday signed three bills: HB 136 (full text) barring "perform[ing] an abortion of an unborn child capable of feeling pain unless it is necessary to prevent a serious health risk to the unborn child's mother; HB 140 (full text) requiring that before an abortion a pregnant woman must be given the opportunity to view an active ultrasound and hear a fetal heart tone; and HB 171 (full text) setting out procedures for prescribing abortion-inducing drugs, barring delivery of such drugs by mail and prohibiting providing such drugs in schools or on school grounds. Also yesterday the Montana legislature approved HB 167 (full text) calling for a referendum on the adoption of the Born Alive Infant Protection Act. Law & Crime reports on these developments.

In Oklahoma in recent days Governor Kevin Stitt has signed five bills on abortion: HB 1102 (full text) which defines “unprofessional conduct” to include the performance of an abortion unless performed to prevent the death or significant physical impairment of the mother; HB 1904 (full text) requiring doctors performing abortions to be board certified in obstetrics and gynecology; HB 2441 (full text) barring abortions if a fetal heartbeat can be detected, except to prevent death or serious risk of significant physical impairment of the mother; SB 584 (full text) extending ban on funding of provider who has been found by a court to have trafficked in fetal body parts to funding by cities or counties, as well as the state; SB 918 (full text) making abortion illegal if the U.S. Supreme Court overrules Roe v. Wade or a federal constitutional amendment restores state authority to outlaw abortions. AP reports on some of these developments.

Yesterday the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Memphis Center for Reproductive Health v. Slatery. In the case, a Tennessee federal district court issued a temporary restraining order barring enforcement of two bans on pre-viability abortions. One bans abortions when a fetal heartbeat is detectable. The other bans pre-viability abortions sought because of the race or sex of the fetus or a Down syndrome diagnosis. (See prior posting.) Courthouse News Service reports on the oral arguments. [Thanks to Scott Mange for the lead.]