Court Sorts Out Standing Issues And Substantive Challenges To Vermont Town Tuition Program

In Valente v. French, (D VT, Aug. 16, 2021), students and their parents sued various school agencies and districts challenging their policy of refusing to pay tuition to religious schools under Vermont's Town Tuition Program. Under that program, school districts that do not operate their own high schools pay tuition for students to attend other schools. However, sectarian schools are excluded unless there are adequate safeguards against the use of the tuition funds for religious worship. The court held that plaintiffs have standing to sue various state agencies, having alleged that they have not taken appropriate steps to prevent school districts from discriminating against religion in the Town Tuition Program. However the court found no standing to sue supervisory unions made up of local school boards which have no responsibility for the tuition payments.

The court went on to hold that plaintiffs have adequately alleged an equal protection claim and (except for one plaintiff) a free exercise claim against the state defendants, but have not adequately alleged an Establishment Clause or substantive due process claim. Eleventh Amendment defenses were also rejected.

In a companion case, A.H. v. French, (D VT, Aug. 16, 2021), students, parents and the Catholic Diocese sue challenging the refusal to allow Rice Memorial High School, a Catholic high school, to participate in the Town Tuition Program. The court held that the parents have standing to sue the state Agency of Education and its secretary, saying that plaintiffs allege these defendants set policy and directed school districts to exclude religious schools and their students. It also rejected 11th Amendment defenses by the head of the Agency. However the court held that the Diocese of Burlington lacks standing to assert the interests of parents who wish to send their children to Rice.

Suit Challenges Arizona's New Abortion Law

Suit was filed in an Arizona federal district court yesterday challenging two provisions in an abortion law enacted earlier this year. At issue are (1) a provision (the Reason Ban) which bans abortion whenever the providing physician knows that the abortion is due to “a genetic abnormality” and (2) a provision (the Personhood Provision) which requires Arizona laws to be interpreted to give all fertilized eggs, embryos, and fetuses the same rights as other persons. The complaint (full text) in Isaacson v. Brnovich, (D AZ, filed 8/17/2021), alleges in part:

Any reading of [the Reason] ban violates the Due Process Clause of the Fourteenth Amendment and decades of binding precedent confirming that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”...

Because the Personhood Provision fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement..., it is unconstitutionally vague.

The complaint also alleges that the accomplice liability provisions infringe on physicians' speech rights. Center for Reproductive rights issued a press release announcing the filing of the lawsuit.

New York Child Victims Look-Back Period Ends

As reported by the New York City Patch, the two-year look-back period that allowed otherwise untimely suits to be filed under New York's Child Victims Act expired last Friday, Aug. 13. As of Aug. 9, some 9,241 cases had been filed during the look-back window. (Child USA Report).

Recent Articles of Interest

From SSRN:

• Cameron M. Fathauer, Freed Unto Liberty: A Call to Re-Treasure American Liberty, (February 4, 2020).
• Hershey H. Friedman, The Talmudic Principle of Going Beyond the Requirements of the Law: The Cornerstone of Ethics, (July 13, 2021).
• Nadia N. Sawicki, Tort Law Implications of Compelled Physician Speech, (Indiana Law Journal, Forthcoming).
• Cameron M. Fathauer, Freed Unto Liberty: A Call to Re-Treasure American Liberty (February 4, 2020).
• Intisar A. Rabb, Islamic Legal Canons as Memes, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Intisar A. Rabb, Methods and Meaning in Islamic Law: Introduction, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Didin Samsudin & Fajar Kusnadi Kusumah Putra, Influence of Experiential Marketing on Customer Loyalty in Shariah-Compliant Hotel, (Journal of Indonesian Tourism, Hospitality and Recreation, 3(2), p.117-129 (2020)).

Court Allows Equal Protection Challenge To Zoning Law To Proceed

In Orthodox Jewish Coalition of Chestnut Ridge v. Village of Chestnut Ridge New York, (SD NY, Aug. 13, 2021), a New York federal district court granted plaintiff's motion to reconsider its March 31, 2021 decision that dismissed an equal protection challenge to the Village's former zoning law. The court now held that Equal Protection and state law claims by three Orthodox synagogues and three individual plaintiffs may proceed, saying in part:

Plaintiffs argue that “the Court erred in holding that [Plaintiffs] were required to allege that . . . facially discriminatory laws were enacted with a discriminatory purpose.” ... They are correct.

Mississippi Supreme Court Rejects Claims By Pastor's Former Wife Against His Church On Unusual Facts

In Woodard v. Miller, (MS Sup. Ct., Aug. 12, 2021), the Mississippi Supreme Court applied the ecclesiastical abstention doctrine in an unusual context.  Plaintiff Kim Miller married Andrew Johnson when he was a seminary student studying to be a United Methodist Church minister. Church officials encouraged Miller to give up her higher education plans to serve as a minister's wife, and told her that the church would provide for her needs. After more than 20 years of marriage, Miller filed for divorce. She took this step after Johnson confessed to her that he was gay, had contracted HIV from an extramarital affair, and had infected Miller.

Miller sued her ex-husband, the United Methodist Church Conference and a fellow-pastor asserting a variety of claims. She asserted that "had the conference and the fellow minister followed United Methodist policy and procedure, they would have discovered Johnson’s behavior and remedied it or warned Miller before she contracted HIV."

The court dismissed plaintiff's claims against the church, saying in part:

[U]nder the First Amendment, for Miller’s claim to proceed against MUMC, the claimed assumed duty cannot be religious or ecclesiastical in nature.... And we are hard-pressed to see how Miller’s claim would hold up if it were against a non-religious employer. Though Miller personally interpreted MUMC’s promise to provide for her and her family if she gave up her own career goals as both an assurance of sufficient financial remuneration and a guarantee against her husband committing adultery, such an interpretation would be considered wholly unreasonable if the promise was being made by, say, a law firm, a hospital, or a technology company. In other words, Miller interpreted the assurances of MUMC ministers as including guaranteeing the success of her marriage and family life precisely because her fiancé was going into church ministry. Thus, her claim fails because the religious nature of his employer cannot be the basis for recognizing a legal duty....

The court dismissed Miller's claim against the fellow-pastor because: "a fiduciary duty cannot arise merely from a minister-church member relationship."

Finally, the court, over the dissent of two judges allowed plaintiff to move ahead on her claims against her former husband, rejecting his defense that the claims against him were released as part of the divorce settlement. The majority held that Johnson had waived this defense.

Court Dismisses Challenge To Contraceptive Mandate Exemption for Notre Dame

In Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Aug. 12, 2021), an Indiana federal district court dismissed a suit challenging rules, as well as a settlement agreement, exempting Notre Dame University from the contraceptive coverage mandate of the Affordable Care Act. The court said in part:

With the Rules having been upheld by the Supreme Court, I can’t really say that the Settlement Agreement itself is causing injury to the Plaintiffs because the same result the Settlement Agreement provides Notre Dame (exempting it from the contraceptive coverage mandate) is equally provided by the Rules (the validity of which were upheld). The challenge to the Settlement Agreement “is not ripe for adjudication [because] it rests upon contingent future events that may not occur” - i.e., the speculative possibility that the exemption might be invalidated at some point in the future.

The court, relying on the Supreme Court's Little Sisters of the Poor decision and a Massachusetts federal district court case, also held that the rules creating religious exemptions from the contraceptive coverage mandate do not violate the Establishment Clause.

Fraud Claim Against Catholic Diocese Dismissed Under Ecclesiastical Abstention Doctrine

In Doe v. Roman Catholic Diocese of Dallas, (TX App, Aug. 11, 2021), a Texas state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a suit alleging that a Catholic diocese committed fraud when it failed to follow its own internal policies for responding to clergy sex-abuse claims after plaintiff reported that he had been sexually abused by a Diocesan priest. The court said in part:

[A] court would have to evaluate whether ... the Dallas Diocese implemented its policy under the canonical meanings of "minor," "sexual abuse," and "vulnerable adult." This would necessitate a secular investigation into the Dallas Diocese's understanding of those terms.... Such an inquiry would cause a court to evaluate whether the Dallas Diocese properly applied canon law and "interlineate its own views" of canonical terms....

Furthermore, in the context of a religious organization's choices in investigating and regulating its formal leaders and people ordained for religious duties, "any investigation would necessarily put to question the internal decision making of a church judicatory body."...

New Hampshire Enacts Law To Protect Churches In Future Emergencies

On Tuesday, New Hampshire Governor Chris Sununu signed HB542, the New Hampshire Religious Liberty Act (full text). The law provides in part:

[D]uring a state of emergency, the state government shall permit a religious organization to continue operating and to engage in religious services to the same or greater extent that other organizations or businesses that provide essential services that are necessary and vital to the health and welfare of the public are permitted to operate.

Under the statute, the state may still require religious organizations to comply with neutral health, safety, or occupancy requirements, but must meet a strict scrutiny test if the requirement imposes a substantial burden on a religious service.

AP reports on the new law, which takes effect in 60 days.

Ministerial Exception Requires Dismissal Of Title VII Claims By Catholic School Guidance Counselor

In Roman Catholic Archdiocese of Indianapolis, Indiana v. Roncalli High School, Inc., (SD IN, Aug. 11, 2021), an Indiana federal district court  held that the ministerial exception doctrine bars Title VII retaliation, discrimination and hostile work environment claims as well as state law claims of interference with contractual and employment relationships in a suit brought by the former Co-Director of Guidance at a private Catholic high school. The school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. The court said in part:

To be sure, the court does not mean to say that divergent understandings of the religious nature of an employee's role should always be resolved in the religious employer's favor. For example, it would be difficult to credit a religious employer's claim that a custodian or school bus driver qualifies as a minister simply because the employer said so.... But this case concerns the Co-Director of Guidance ... [who] performed "vital religious duties" at Roncalli.... Employees in that position met with every student throughout the year and discussed some of the most sensitive issues in a young person's life.... Roncalli expressly entrusted Starkey with the responsibility of communicating the Catholic faith to students and fostering spiritual growth.

Becket issued a press release announcing the decision.

10th Circuit: Muslim Inmate Can Move Ahead On Claim That He Was Forced To Shave Beard

In Ashaheed v. Currington, (10th Cir., Aug. 10, 2021), the U.S. 10th Circuit Court of Appeals reversed a Colorado federal district court's dismissal of a Muslim inmate's free exercise and equal protection claims. The Colorado corrections center requires inmates to shave their beards at intake but provides an exemption for inmates who wear beards for religious reasons. Plaintiff says he repeatedly asserted this exemption, but that Defendant-- motivated by anti-Muslim animus-- forced him to shave.

The court rejected Defendant's qualified immunity defense, saying: "The constitutional violation alleged here was clear beyond debate." The court concluded in part:

Sergeant Currington’s refusal to follow the Center’s beard-shaving policy and grant Mr. Ashaheed a religious exemption, when he previously accommodated the religious needs of non-Muslims under the Center’s personal-effects policy, shows that he burdened Mr. Ashaheed’s religion in a discriminatory and nonneutral manner.

10th Circuit: Jail Chaplain Succeeds On Qualified Immunity Grounds In Suit Over Religious Diet

In Ralston v. Cannon, (10th Cir., Aug. 9, 2021), the U.S. 10th Circuit Court of Appeals held that a suit by a Messianic Jewish inmate should be dismissed on qualified immunity grounds. The suit challenged jail Chaplain Hosea Cannon's denial of plaintiff's request for a kosher diet. The court said in part:

When Mr. Cannon denied the kosher diet request, it was not clearly established that his conduct violated the Free Exercise Clause of the First Amendment. More specifically, the law was not clearly established that, even if Mr. Cannon did not act with a discriminatory purpose, his denial of a kosher diet could effect a violation of Mr. Ralston’s free-exercise rights.

Court Enjoins Requirement That Christian Doctors Perform Gender Transition Procedures And Abortions

In Franciscan Alliance, Inc. v. Becerra, (ND TX, Aug. 9, 2021), on remand from the 5th Circuit, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. The court said in part:

No party disputes that the current [Affordable Care Act] Section 1557 regulatory scheme threatens to burden Christian Plaintiffs’ religious exercise ... by placing substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions....

In reaching its conclusion, the court rejected mootness and other justiciability arguments that stemmed from shifting regulations while the case wound its way through the courts. 

In Pakistan, 8-Year Old Boy Is Charged With Blaspehmy

The Guardian  today reports that in the Punjab province of Pakistan, an 8-year old Hindu boy has become the youngest person ever charged in Pakistan with blasphemy. He is accused of intentionally urinating on a carpet in a madrassa library. Last week, after he was released from custody on bail, Muslims attacked a Hindu temple in Rahim Yar Khan. The boy is now being held in protective custody by police, and his family is in hiding.

Recent Articles of Interest

From SSRN:

• Daniel Judge, Catholic Education and the Formation of Conscience, (96 Notre Dame Law Review Reflection 248 (2021).
• Kenny Mok & Eric A. Posner, Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic  (August 1, 2021).
• James G. Hodge, et. al., Vaccinating Urban Populations in Response to COVID-19: Legal Challenges and Options, (Fordham Urban Law Journal, Vol. 49, No. 1, 2021).

From SmartCILP:

• Mark Satta, Unclear Hostility: Supreme Court Discussions of "Hostility to Religion" from Barnette to American Legion, 68 Buffalo Law Review 641-708 (2020).
• Sergio Alberto Gramitto Ricci, Archeology, Language, and Nature of Business Corporations, 89 Mississippi Law Journal 43-84 (2019).

10th Circuit: Parolee May Move Ahead In Suit Challenging His Placement In Christian Housing

In Janny v. Gamez, (10th Cir., Aug. 6, 2021), the U.S. 10th Circuit Court of Appeals held that a parolee, who is an atheist, should be able to move ahead with his Free Exercise and Establishment Clause claims growing out of a requirement that in order to stay out of jail he stay at a Christian homeless shelter and participate in its religious programming.  The court said in part:

[W]hile the Lemon test remains a central framework for Establishment Clause challenges, it is certainly not the exclusive one.... And claims of religious coercion, like the one presented here, are among those that Lemon is ill suited to resolve. Lee [v. Weisman] teaches that a simpler, common-sense test should apply to such allegations: whether the government “coerce[d] anyone to support or participate in religion or its exercise.” ...

Mr. Janny argues that Officer Gamez’s written parole directive to abide by the Mission’s “house rules as established,”... shows the State required him to participate in the Mission’s religious programming.... These facts establish a genuine dispute as to whether the State, through Officer Gamez, acted not just to place Mr. Janny in the Mission, but to place him specifically into the Christian-based Program....

The record [also] allows Mr. Janny to reach the jury on his claim that Officer Gamez burdened his right to free exercise by allegedly presenting him with the coercive choice of obeying the Program’s religious rules or returning to jail.

The court also rejected defendants' qualified immunity defenses. 

Judge Carson dissented in part, contending that the director of the Mission should not be liable as a state actor.

ACLU issued a press release announcing the decision.

White House Announces Liaison To Jewish Community

The White House announced yesterday that Chanan Weissman will serve as the Biden-Harris Administration's liaison to the Jewish community. He served in the same role in the Obama administration.

6th Circuit En Banc Upholds Tennessee Abortion Waiting Period

In a 9-7 en banc decision in Bristol Regional Women's Center, P.C. v. Slatery, (6th Cir., Aug. 5, 2021), the U.S. 6th Circuit Court of Appeals upheld Tennessee's 48-hour waiting period for abortions. Judge Thapar's majority opinion concluded:

Tennessee’s 48-hour abortion waiting period is facially constitutional. The law is supported by a rational basis, and it is not a substantial obstacle to abortion for a large fraction of women seeking previability abortions in Tennessee. And the plaintiffs failed to present any specific evidence to sustain their as-applied challenge. We thus reverse the district court’s decision and remand for entry of judgment in Tennessee’s favor on these claims.

Two judges joined in a concurring opinion.  The primary dissenting opinion was written by Judge Moore, who said in part:

Rather than plunge into the vast pool of evidence compiled in the district court ... the majority dips a toe and recoils. Speaking vaguely of “inconveniences,”... “logistical challenges,” ... and “increased costs,”... but shirking the specifics that the district court explored in exhaustive depth, the majority improvises a sanitized account of the record free of uncomfortable realities. In whitewashing the record, the majority has crystalized what has been clear at least since it agreed to hear this case initially en banc without a principled basis: this case was dead on arrival.... An honest look at the record compels but one conclusion: a law that peddles in stigma, forces women into unnecessary and invasive surgical procedures, and forces low-income women to sacrifice basic necessities for themselves and their families in order to obtain an abortion is nothing if not an undue burden.

Judge Gibbons also filed a dissenting opinion. The Hill reports on the decision. 

DOJ Reports On 15 Years Of Hate Crime Prosecutions

Last month (July 8), the Department of Justice Bureau of Justice Statistics issued a 15-page report titled Federal Hate Crime Prosecutions, 2005–19 (full text). A press release summarizing the report said in part:

U.S. attorneys declined to prosecute 82% of suspects, prosecuted 17% and disposed of 1% for prosecution by U.S. magistrates. Insufficient evidence was the most common reason hate crime matters were declined for prosecution.

Among the 310 defendants adjudicated in U.S. district court for hate crime violations during 2005-19, more than 9 in 10 defendants (284) were convicted. About 85% (240) of those convicted of a hate crime were sentenced to prison, with an average term of over 7.5 years. About 14% (39) were sentenced to probation only, and 1% (4) received a suspended sentence. Forty percent of the convictions for hate crimes during 2005-19 occurred in federal judicial districts in six states: New York (30), California (26), Texas (19), Arkansas (15), Tennessee (13) and Pennsylvania (12).

This week, the Los Angeles Blade reported on the data.

Transgender Students Sue Over Tennessee Public School Bathroom Law

Suit was filed this week in a Tennessee federal district court challenging the Tennessee Accommodations for All Children Act. The suit was brought on behalf of two transgender students. The complaint (full text) in A.S. v. Lee, (MD TN, filed 8/3/2021) alleges that the effect of the law is to force transgender students in public schools to either use a multi-occupancy bathroom inconsistent with their gender identity or ask for a "reasonable accommodation" such as use of a single-occupancy or a teacher's restroom or changing room. Use of a multi-occupancy restroom or changing room consistent with their gender identity is not an option. The complaint charges that the law violates the equal protection clause and Title IX. CNN reports on the lawsuit.