Diocesan Religious Education Director Sentenced To 20 Years For Sex Abuse of Minor Girl

The Tennessean reports that under a plea deal, the former director of religious education at a Murfreesboro (TN) Catholic parish was sentenced to twenty years in prison for sexual abuse of a girl, beginning when she was 13 years old.  Defendant, Michael D. Lewis, pleaded guilty to four counts of statutory rape for abuse that took place between 2014 and 2016.

Priest's Suit For Reinstatement Dismissed

In Iwuchukwu v. Archdiocese for the Military Services,(D DC, Feb. 11, 2022), the D.C. federal district court dismissed a suit by a former Catholic priest who worked at Georgetown University Hospital and the Department of Veterans Affairs.  After a woman accused the priest of sexually abusing her, the Archdiocese revoked his faculties and endorsement so he could not work as a Catholic pastor.  Legal authorities did not pursue charges against the priest because the statute of limitations had run; the priest submitted polygraph results supporting his denial of wrongdoing.  However the Archdiocese refused to reinstate him.  He sued claiming violation of the 14th Amendment's due process clause and illegal retaliation against him for filing an employment discrimination claim. The court held that the suit should be dismissed under the ecclesiastical abstention doctrine because this:

plainly concerns the composition of the clergy and a matter of church discipline.... Moreover, the conferral of faculties and an endorsement on a priest is a purely religious decision that cannot be reviewed by courts.

The court concluded that his claim for retaliation in violation of the D.C. employment discrimination law should be dismissed because of the statutory exemption for religious organizations.

Recent Articles of Interest

From SSRN:

• Flora Renz & Davina Cooper, Reimagining Gender through Equality Law: What Legal Thoughtways do Religion and Disability Offer? (January 20, 2022, Feminist Legal Studies).
• Patrick Quirk, When My Opt out Is Your Trigger: Oderberg’s Argument with the Religious Freedom Sincerity Test, (11 Faulkner. L. Rev. 161 (2020)).
• Bradley J. Lingo, Relieving The Crisis in Religious Liberty: Book Review of Religious Liberty in Crisis, Exercising Your Faith in an Age of Uncertainty, (Regent University Law Review, Forthcoming).
• Nathan B. Oman, Regulating Religious Performance on the Commercial Stage, (in Democracy, Religion, and Commerce: Private Markets and the Public Regulation of Religion (Kathleen Flake & Nathan B. Oman eds. Forthcoming)).
• Marc Greendorfer, The True History and Legal Meaning of Colonialism in the Holy Land: The 2042 B.C. Project, (February 7, 2022).
• Robert Kahn, Face Veil Bans and “Living Together” – What’s Privacy Got to Do with It, (6 Public Governance, Administration and Finances Law Review 7 (2021).
• Sherif Girgis, Misreading and Transforming Casey for Dobbs, (Georgetown Journal of Law & Public Policy, Vol. 20, 2022).
• David Gans, Reproductive Originalism: Why the Fourteenth Amendment’s Original Meaning Protects the Right to Abortion, (SMU Law Review Forum (2022 Forthcoming)).
• Howard Wasserman & Charles W. (Rocky) Rhodes, Solving the Procedural Puzzles of the Texas Heartbeat Act and its Imitators: New York Times v. Sullivan as Historical Analogue, (Florida International University Legal Studies Research Paper No. 22-03 (2022).

From SmartCILP and elsewhere:

• Thomas E. Simmons, Christian Purpose Trusts, 53 Creighton Law Review 643-658 (2020).
• Lynn Kaye, Lay People's Advocacy and Resistance in Talmudic Adjudication Narratives, 32 Yale Journal of Law & Humanities 77-118 (2021).
• Aaron J. Walayat, Adams and Jefferson: American Religion and the Ancient Constitution, 11 Faulkner Law Review 215 (2021).

Relocation Of Native American Graves Can Proceed

In Asher v. Clay County Board of Education, (ED KY, Feb. 11, 2022), a Kentucky federal district court refused to enjoin a school district from relocating graves from cemetery land which it had purchased. The school board followed procedures in Kentucky law to obtain permission for the relocation.  Plaintiffs claim the the cemetery contains graves of members of the White Top Band of Native Indians.  The court held that the Native American Graves Protection and Repatriation Act does not apply because the cemetery is not on federal or tribal lands. The court rejected plaintiffs' 1st Amendment free exercise claim, saying in part:

Plaintiffs argue that the Defendants’ actions would prevent religious fulfilment.... But like the respondents in Lyng [v. Nw. Indian Cemetery Protective Ass’n], Plaintiffs are not being coerced into violating their religious beliefs, nor are they being penalized because of their religious or traditional beliefs or practices. Instead, they seek to overturn the lawful process undertaken by the BOE to move the graves in the Hoskins Cemetery so that Plaintiffs can continue to practice their traditional and religious beliefs.... This is not “free exercise” of religion protected by the First Amendment. Rather, it amounts to Plaintiffs seeking to exact a benefit from the local government and to “divest the [BOE] of its right to use what is, after all, its land.”

Court Says South Carolina's Ban On Aid To Private And Religious Schools Was Not Discriminatory

In Bishop of Charleston v. Adams, (D SC, Feb. 10, 2022), a South Carolina federal district court rejected federal Constitutional free exercise and equal protection challenges to Art. XI, Sec. 4 of the South Carolina Constitution which bars the use of public funds to directly benefit religious or other private educational institutions. The court held that plaintiffs failed to prove that the provision was motivated by either religious or racial discriminatory intent, saying in part:

[A]ccording to Plaintiffs, the 1895 provision was a so-called “Blaine Amendment” motivated by anti-Catholic animus....

Plaintiffs’ own expert, conceded that the national Blaine Amendment movement was not a significant factor in South Carolina.... The similarity in language between South Carolina’s 1895 provision and Blaine Amendments in other States is not enough to make up for Plaintiffs’ failure to demonstrate the existence of pervasive anti-Catholic animus in South Carolina, much less Plaintiffs’ failure to establish any corresponding discriminatory intent.....

Even assuming the 1895 provision was connected in some way to racial or religious prejudice, Plaintiffs’ claim still cannot succeed. The original 1895 provision no longer governs. Instead, the relevant provision was incorporated into the South Carolina Constitution by a vote of the people in 1972....

Plaintiffs mainly argue that racial and religious prejudice from the 1895 provision tainted Section 4, while also arguing that “[t]he ‘historical backdrop’ of the 1972 Amendment really started in 1619, when the first slaves came to America’s shores.”...

But Plaintiffs’ reliance on these other racist or anti-religious views or policies is unavailing because Plaintiffs do not connect them with Section 4’s adoption.

Supreme Court Refuses To Enjoin NYC Vaccine Mandate For Teachers

Acting on an Emergency Application to the U.S. Supreme Court filed by a group of New York City teachers, Justice Sotomayor, in Keil v. City of New York, (Sup.Ct., Feb. 11, 2022) refused to enjoin the dismissal of teachers with religious objections who refused to comply with the City's COVID vaccine mandate. The Second Circuit had held that the process for determining whether  a teacher or administrator is entitled to a religious exemption is unconstitutional.  However, it allowed the school system two weeks to reconsider the applications by the named plaintiffs for religious exemptions. (See prior posting).  After reconsideration, the City granted only one of the 14 plaintiffs an exemption. New York Times reports on the decision.

Department of Education Reaffirms BYU's Exemption From LGBTQ Anti-Discrimination Requirements

The U.S. Department of Education, Office of Civil Rights, issued a determination letter (full text) on Feb. 8, 2022, dismissing a complaint filed by LGBTQ students at Brigham Young University.  The University bans same-sex romantic relationships among its students.  The OCR letter affirms that the University is exempt from the non-discrimination provisions of Title IX:

to the extent that the application of those provisions would conflict with the religious tenets of the University's controlling religious organization that pertain to sexual orientation and gender identity.

The University issued a press release announcing the OCR determination. Salt Lake Tribune reports on the determination and reactions to it.

Suit By Jewish And Catholic Plaintiffs Challenge "Key To NYC" Vaccination Requirement

A suit raising 1st and 14th Amendment claims was filed this week in a New York federal district court by five Orthodox Jews (including a rabbi and a yeshiva teacher), and by a Catholic  man, challenging New York City's "Key To NYC" program.  Key To NYC requires individuals to be vaccinated for COVID in order to enter restaurants, entertainment venues and fitness facilities. Plaintiffs contend that they have religious objections to the COVID vaccine.  Their religious objections are set out at length in the complaint (full text) in Jane Doe 1 v. Adams, (ED NY, filed 2/7/2022).  Some of the religious objections are similar to those raised in many other cases, i.e. objections to vaccines developed with the the use of fetal cell lines originating from abortions.  However, the religious objections cited by the Jewish plaintiffs include contentions that have not commonly been raised in past litigation. Here are two examples of the cited beliefs:

Submitting to a government dictate that conditions freedom on vaccination is a form of slavery and subjugation. This violates numerous commandments in the Torah that require one to remember and internalize the great Exodus from slavery in ancient Egypt....

Rabbi Moshe Schreiber, better known as the Chasam Sofer (1762 to 1839), an ancestor of John Doe 1’s wife and the leading Orthodox Rabbi in opposition to the Reform Judaism movement, stated the famous aphorism Chadash Assur Min Hatorah: That which is new is prohibited by the Torah. This was specifically aimed at the attempts to overhaul and change ancient traditions and customs, by the followers of Reform Judaism. The notion that healthy people should be viewed as sick until they can prove their innocence by vaccination in order to be part of society is a new concept that is being forced on humanity as part of the “New Normal” and “Great Reset.” This newfangled posture in human relations that is being imposed by force, has no basis in the Torah....

Thomas More Society issued a press release announcing the lawsuit.

 

Illinois Wildlife Code Requirement Survives Free Exercise Challenge

In Tranchita v. Callahan, (ND IL, Feb. 9, 2022), an Illinois federal district court rejected a free exercise challenge to requirements of the Illinois Wildlife Code that led to the seizure of four coyotes from Tomi Tranchita who cared for orphaned coyotes in her suburban Chicago backyard.  Under Illinois law, a person can possess coyotes only if they have both a Breeder Permit and a Hound Running Permit. The requirements for obtaining a Hound Running Permit effectively prevent keeping of coyotes in urban or suburban areas.  Tranchita held a Breeder Permit, but had been unable to renew her Hound Running Permit.  She contends that hound running, i.e. chasing of coyotes by dogs, violates her religious, ethical and moral beliefs.  She argued that requiring her to possess a permit to engage in such a cruel practice violates her free exercise rights. The court held that the Permit requirement is neutral and generally applicable, and the state had a rational basis for the requirement.  The court also rejected Tranchita's equal protection, due process and pre-emption challenges.

Report On Role Of Christian Nationalism In January 6 Insurrection Released

Yesterday, the Baptist Joint Committee for Religious Liberty (BJC) and the Freedom From Religion Foundation released a report titled Christian Nationalism and the January 6, 2021 Insurrection (full text).  The Introduction to the Report says in part:

This report describes Christian nationalism and recounts its impact on the day itself as well as in the weeks leading up to the insurrection. Drawing on reporting, videos, statements, and images from the attack and its precursor events, this report contains the most comprehensive account to date of Christian nationalism and its role in the January 6 insurrection.

Christian nationalism is a political ideology and cultural framework that seeks to merge American and Christian identities, distorting both the Christian faith and America’s constitutional democracy. Christian nationalism relies on the mythological founding of the United States as a “Christian nation,” singled out for God’s providence in order to fulfill God’s purposes on earth.

First Coptic Christian Picked As Head Of Egypt's Supreme Constitutional Court

 AP reports that Egyptian President Abdel Fattah al-Sisi has appointed Boulos Fahmy, a Coptic Christian, as Chief Judge of Egypt's highest court, the Supreme Constitutional Court. This is the first time a Christian has headed the Court.  According to AP:

President Abdel Fattah el-Sissi picked the 65-year-old Fahmy from among the court’s five oldest of 15 sitting judges, as is prescribed by law.

10th Circuit: Muslim Terrorism Inmate Can Sue Under RFRA For Damages

In Ajaj v. Federal Bureau of Prisons, (10th Cir., Feb. 9, 2022), the U.S. 10th circuit Court of Appeals reversed a Colorado federal district court's dismissal of a religious freedom suit brought by an inmate who is serving a sentence of 114 years for terrorist acts related to the 1993 World Trade Center bombing. The court summarized its holding:

Ahmad Ajaj, a practicing Muslim, ... sued to obtain injunctive relief against BOP and damages from BOP officials [alleging] violations of his rights to free exercise of religion under the Religious Freedom Restoration Act (RFRA).... He contends that the district court erred by holding (1) that his claim against the BOP for denial of his right to group prayer was moot and (2) that RFRA did not provide a claim for damages against government officials in their individual capacities.... [W]e ... reverse the challenged rulings. The mootness ruling was based on a misconception of the evidence....  And the Supreme Court has now ruled in Tanzin v. Tanvir ... that damages claims are permissible under RFRA.... We reject Mr. Ajaj’s contention that the doctrine of qualified immunity is inapplicable to RFRA claims, but we decline to resolve whether the individual defendants in this case have shown entitlement to qualified immunity, leaving that matter to the district court in the first instance.

Lipstadt Finally Gets Hearing On Her Nomination As Anti-Semitism Monitor

Yesterday, the U.S. Senate Foreign Relations Committee held a hearing on the nomination of Emory Prof. Deborah Lipstadt to be Special Envoy to Monitor and Combat Anti-Semitism, with the rank of Ambassador.  (Video of full hearing.) (Transcript of Prof. Lipstadt's prepared statement.) Lipstadt is a widely-known scholar of the Holocaust. A hearing on Lipstadt's nomination has been delayed for months by Republicans, particularly Foreign Relations Committee member Sen. Ron Johnson, because of a Tweet last March by Lipstadt characterizing a statement by Johnson as white supremacy.  Politico reports on this aspect of the Lipstadt hearing. Washington Post reports more generally on the hearing.

Suit Challenging Jehovah's Witness Beliefs Dismissed

In Gasparoff v. Watch Tower Bible & Tract Society of Pennsylvania, (D AZ, Feb. 4, 2022), an Arizona federal district court dismissed a pro se complaint which attacked the beliefs of Jehovah's Witnesses regarding blood transfusions and asked the court "to determine if it is constitutional to use Amendment I in order to propagandize suicidal ideology under the guise of peaceful religious practice." The court said in part:

Plaintiff has no viable legal grounds to advance this case.... Federal Courts can not be arbiters of scriptural interpretation; controversies over religious principles fall outside this Court’s jurisdiction....  Furthermore, the Amended Complaint reflects that Plaintiff has no personal stake in this action, and therefore has no standing to litigate this case.

Arrest Of Parishioners For Wrongful Eviction Did Not Violate RLUIPA

In Colorado Springs Fellowship Church v. City of Colorado Springs,  (D CO, Feb. 4, 2022), a Colorado federal district court dismissed  RLUIPA as well as 1st and 14th Amendment claims against the city and various law enforcement officials brought by a church and eight of its parishioners.  The church leased an apartment that was to be for the use of members who were in need of housing but could not afford to rent a habitable dwelling.  Amisha and Nicholas Gainer were identified as occupants of the Apartment in the lease. The church found that the Gainers had been acting in violation of the lease. Instead of following a formal eviction route, church members merely showed up at the apartment to move the Gainers out.  The Gainers threatened the parishioners with a gun and baseball bat.  The parishioners then retreated and called the police. When the police arrived, they arrested the parishioners, who now are suing. Dismissing plaintiffs' RLUIPA claim, the court said in part:

Defendants argue ... that their conduct ... has no relation to land use regulations and consequently does not fall within the scope of the statute....  Plaintiffs argue that the actions of the DAO and the CSPD were premised on the Plaintiffs’ failure to secure an eviction proceeding within the land use laws of the City..... Further, Plaintiffs argue that “leasing [the Apartment] (and all actions attendant thereto) were as much a part of its religious actions as a Sunday Service.”...

The Court finds that the Plaintiffs’ allegations do not implicate any land use regulations, as defined by the statute.

Georgia Legislature Passes Revised Anti-Boycott of Israel Bill

On January 27, the Georgia legislature gave final passage to House Bill 383 (full text). The bill enacts a revised version of the state's law on participation in boycotts of Israel in reaction to a federal district court's decision last year holding the prior version unconstitutional on free speech grounds. (See prior posting). Like the original version, the new bill requires companies contracting with the state to certify that they are not currently engaged in a boycott of Israel and will not do so during the contract.  The new bill, however, applies only to companies and not to individuals, and applies only to state contracts of $100,000 or more. In a Jan. 31 press release, CAIR said that if the bill is signed by the governor, it will again challenge it in court.

Recent Articles of Interest

From SSRN:

• Farrah Ahmed, Secularism and Human Rights as Subterfuge: In Defence of a Hindu Nationalist Citizenship Regime (January 31, 2022).
• Sakin Tanvir, Hate Speech vs Free Speech: The Ongoing Debate and Challenges in the Globalized World, (December 31, 2021).
• Allen R. Kamp, The Jurisprudence of Bostock, (January 27, 2022).
• Justin Driver & Emma Kaufman, The Incoherence of Prison Law, (Harvard Law Review, Vol. 135, No. 2, p. 515, 2021).
• Beatrice Jessie Hill & Mae Kuykendall, Uprooting Roe, (12 Houston Law Review Online 50 (2022)).
• Michal Shur-Ofry & Noy Lion, Copyright Neutrality? Lessons from Mein Kampf, (Cardozo Arts & Entertainment Law Journal, Vol. 40 (Forthcoming)).

From SmartCILP and elsewhere:

• Martha Minow, Not in the Room Where It Happens: Adversariness, Politicization, and Little Sisters of the Poor, [Abstract], 2020 Supreme Court Review 35-82 (2020).
• Journal of Law and Religion, Volume 36, Issue 3, December 2021.

South Dakota Governor Signs Bill Barring Transgender Women On Women's Sports Teams

Yesterday, South Dakota Governor Kristi Noem signed Senate Bill 46 (full text) which prohibits transgender women from participating in women's sports teams or events in South Dakota schools and colleges.  The ban includes intramural and club events as well as inter-school competitions. It also extends to any accredited school, not just to public schools; to events sponsored by any activities association or organization; and to colleges under control of the Board of Regents or Board of Technical Education. NBC News reports on the governor's action.

National Prayer Breakfast Held Yesterday

President Biden spoke yesterday at the National Prayer Breakfast (full text of remarks) which, this year was held at the U.S. Capitol Visitor Center. Vice-President Harris also delivered remarks.  C-Span has video and a transcript of the full breakfast. A day before the Breakfast, Sen. Chris Coons, one of the Breakfast organizers, told Religion News Service that this year's Breakfast is intended to be a "positive reset" of the 70-year old event which, in recent years, has become controversial.  This year's breakfast attendees were limited to members of Congress, speakers and spouses.  The keynote speaker this year was Bryan Stevenson, founder of the Equal Justice Initiative and author  of the book “Just Mercy.”

Ohio Law On Disposal Of Tissue After Abortion Is Enjoined

In Planned Parenthood Southwest Ohio Region v. Ohio Department of Health, (OH Com. Pl, Jan. 31, 2022), an Ohio state trial court issued a preliminary injunction barring enforcement of an Ohio law (SB27) that was to take effect next week which requires embryonic and fetal tissue after a surgical abortion to be cremated or interred. The court held that reproductive autonomy and freedom of choice in health care are fundamental rights under the Ohio Constitution. It also pointed out that the effect of the law is to prevent surgical abortions before 13 weeks of pregnancy. Before that time, embryonic and fetal tissue cannot be separated from other pregnancy tissue which is required to be disposed of as infectious waste and cannot be interred or cremated. The court concluded that there is a substantial likelihood that plaintiffs will succeed on their claims that the law violates the due process and equal protection provisions of the state Constitution, and that it is unconstitutionally vague. Christian Post reports on the decision.