For First Time, Orthodox Rabbi Appointed To An Australian State Supreme Court

 ABC News and Hamodia report that for the first time, an Orthodox rabbi has been appointed to a Supreme Court of a state in Australia. Rabbi Marcus Solomon takes office today as the newest justice of the Supreme Court of the state of Western Australia. Rabbi Solomon, who has particular expertise in complex commercial matters, received his law degree in 1991. In 2006 he founded Perth Yeshivah, Western Australia's first post-secondary institution of Jewish studies and Talmudic law.

Challenge To Virginia's COVID Restrictions On Worship Services Dismissed As Moot

 In Tolle v. Northam, (ED VA, July 29, 2021), a Virginia federal district court dismissed as moot a lay minister's challenge to the Virginia governor's now-terminated COVID-19 orders.  Those orders had caused plaintiff's church to stop offering public worship services and otherwise limited gatherings for religious worship.

Protective Order Did Not Violate Ex-Husband's Free Exercise Rights

 In Kaur v. Singh, (PA Super., Aug. 2, 2021), a Pennsylvania appellate court upheld a Protection From Abuse Order that excludes plaintiff's former husband from attending the Nazareth Temple on Sundays when his former wife is present. The court said in part:

[T]he Final PFA Order did not substantially burden Appellant’s right to practice his religion....The Order did not ban Appellant from practicing his religion, nor compel him to perform actions against his religion. Appellant can attend services at several other temples in the area on Sunday, attend services at Nazareth Temple every day but Sunday, and attend services at Nazareth Temple on Sunday if Ms. Kaur is not present. As the trial court explained, “[t]he record established that all of the Sikh temples in the area have essentially the same services”....

Additionally ... [s]ince Appellant’s purpose of attending the services at Nazareth Temple is to harass Ms. Kaur as opposed to practicing his religion, the Order arguably does not impact Appellant’s ability to practice his religion at all.

Supreme Court Justice Denies Church's Application For Injunction Pending Cert. Application

Yesterday, U.S. Supreme Court Justice Stephen Breyer in Calvary Chapel of Bangor v. Mills, denied  an application (full text) by a Maine church for injunctive relief pending disposition of its petition for certiorari. The church sought to prevent Maine's governor from reinstating COVID-related restrictions on worship services while exempting other activities. AP reports on the denial.

Cert. Filed In Case On Washington State's Religious Exemption From Anti-Discrimination Law

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Seattle's Union Gospel Mission v. Woods, (cert. filed 8/2/2020). In the case, Washington state's Supreme Court held that, as applied, the religious and non-profit exemption to the state's anti-discrimination law may be unconstitutional. Plaintiff in the case was denied employment as a staff attorney by a Christian legal aid program for the homeless because he was in a same-sex relationship. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Cert. Filed In Dispute Over Ministerial Exception's Applicability To Faculty Member

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Gordon College v. DeWeese-Boyd, (cert. filed 8/2/2021). In the case, the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. The court concluded that the faculty member was not a ministerial employee. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Supreme Court Review Sought In Dispute Over Virginia Property Tax Exemption

A petition for certorari (full text) was filed with the U.S. Supreme Court yesterday in Trustees of the New Life In Christ Church v. City of Fredericksburg, Virginia, (cert. filed 8/2/2021).  The decisions below are an unreported decision from a Virginia state trial court and a Virginia Supreme Court order refusing to grant review. The petition for review filed with the U.S. Supreme Court describes the case:

New Life In Christ Church claimed the tax exemption for a property occupied by Josh and Anacari Storms. The Church explained that the Stormses are “ministers” under the Presbyterian Church in America’s Book of Church Order because they were hired to teach and spread the faith to college students in the community. The City of Fredericksburg agreed that eligibility for the exemption turned on whether the Presbyterian Church in America considered the Stormses to be ministers, but it denied the exemption because, under its reading of the Book of Church Order, only ordained persons with specific duties are ministers of that church.

One of the issues presented is whether a civil court may substitute its own interpretation of church doctrine for that of church officials. First Liberty Institute issued a press release announcing the filing of the cert. petition.

8th Circuit: Challenge To Church Capacity Limits Dismissed On Mootness and Standing Grounds

 In Hawse v. Page, (8th Cir., July 30, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, dismissed on standing and mootness grounds challenges to St. Louis County, Missouri's now-superseded COVID-related limit on the number of persons who could attend church services. The majority said in part:

Whether or not the churches were formally closed in April 2020, the complaint is bereft of an allegation that but for the Order, the churches attended  by the appellants would have allowed groups of ten or more persons to gather in the early weeks of the pandemic.

Judge Stras filed a dissenting opinion. 

Recent Articles of Interest

 From SSRN:

• Douglas Laycock & Thomas Charles Berg, Protecting Free Exercise Under Smith and After Smith, (Cato Supreme Court Review 2020-21 (forthcoming)).
• Perry Dane, ‘My Name Is Great Among the Nations’ an Essay on David VanDrunen, Politics After Christendom: Political Theology in a Fractured World, (Journal of Law and Religion, Forthcoming).
• Robert Kahn, 'My Face, My Choice?' — Mask Mandates, Bans, and Burqas in the Covid Age, (14 New York University Journal of Law and Liberty 2 (2021)).
• Jeffrey M. Lipshaw, Between Rights and Rites: The Ironies of Crisis and Contract, (Law and Contemporary Problems, Forthcoming).
• Michael S. Paulsen, Abortion as an Instrument of Eugenics,(134 Harvard Law Review Forum 415 (2021)).
• Douglas NeJaime, Biology and Illegitimacy, (SMU Law Review, Vol. 74, No. 2, 2021).
• Tariq Javed, Indian Citizenship Act: Reality and Usage, (January 15, 2020).

Most Misrepresentation Claims Against LDS Church Dismissed; RICO Claim Survives

In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, July 28, 2021), a Utah federal district court dismissed most of the claims in an amended complaint by a former LDS Church member alleging that several basic teachings of the Church involve misrepresentations. The court previously dismissed plaintiff's original complaint. (See prior posting.) In passing on her amended complaint, the court said in part:

Gaddy's new factual allegations relating to the locations of events described in the Book of Mormon and the founding prophet Joseph Smith's marriages directly implicate the Church's core religious teachings.... [S]he seeks to attack the veracity of the Church's teachings about the Book of Mormon and its doctrines by challenging the accuracy of certain facts contained in the text. As this court previously explained, a plaintiff may not, for example, challenge in a court of law religious beliefs that Noah built an ark, loaded it with his family and representative animals of the world, and was thereby saved from world-engulfing floods. Neither may a plaintiff circumvent this restriction by merely attacking religious accounts concerning the locations where Noah built the ark or where the ark came to rest....

Gaddy is correct that courts are required to evaluate the sincerity of religious beliefs.... However, courts engage in this inquiry of those seeking religious accommodation or exception to a rule or law of general application ... for the purpose of ensuring the government accommodate only genuine religious beliefs that are sincerely held.

This rationale is inapplicable here because the church autonomy doctrine is not an accommodation.... Rather, it is a "fundamental right of churches to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."

The court however did allow plaintiff to move ahead with her civil RICO claim based on alleged misrepresentations about the way in which tithed funds would be spent:

Here, Gaddy does not challenge the Church's tithing doctrine or teachings related to it.... Gaddy instead points to specific factual statements allegedly made by the Church ... concerning the Church's use of tithing funds and alleges those statements are false. The inquiry required to adjudicate this claim does not implicate religious principles of the Church or the truth of the Church's beliefs concerning the doctrine of tithing. This claim further does not require the court to determine whether the Church or its members were acting in accord with what they perceived to be the commandments of their faith. Gaddy has instead challenged secular representations....

9th Circuit: Arizona Prison Rules Did Not Substantially Burden Inmate's Religious Exercise

 In Yokois v. Ryan, (9th Cir., July 30, 2021), the U.S. 9th Circuit Court of Appeals affirmed the dismissal of an Arizona inmate's 1st Amendment and RLUIPA claims. The court said in part:

ADC’s policy requiring inmates to go through authorized vendors to purchase religious items was at most, an inconvenience, and not a substantial burden on Yokois’ ability to acquire religious items. Similarly, ... the ADC policy in question only prevented Yokois from pinning religious materials on his bulletin board while he was outside his cell and not using them. As a result, Yokois did not show that these policies so burdened his right to exercise his religion that he felt pressured to abandon his beliefs.

Dispute Over Church Vote On Hiring Pastor May Move Ahead

In Howard v. Heritage Fellowship, (VA Cir. Ct., June 30, 2021), a Virginia state trial court refused to dismiss a suit by five church members challenging the membership vote on employment of a senior pastor.  The court said in part:

... Plaintiffs bring suit in concern of whether "the Deacons Board's decision to finalize the membership roll after the results of the 2018 election was in compliance with Bylaws, Constitution and other applicable policies."... [N]one of this request requires the Court to delve into a religious thicket by reviewing religious principles of membership.... [T]here is no allegation ... of a doctrinal dispute between two factions, HFC also lacks an internal tribunal to decide conflicts.... Since HFC lacks internal tribunals to rule on such matters, civil court action is necessary to resolve this dispute.

The court also concluded that the ministerial exception doctrine does not apply, despite the fact that the dispute revolves around selection of the church's minister, saying in part:

Although the language of the ministerial exception does not explicitly state it cannot be applied to other scenarios, that silence does not mean it may extend to election issues. Here, Plaintiffs only ask for democratic, neutral principles of law to be enforced. The Court is not asked to determine whether Reverend Sullivan would make a good Pastor, or if he may stay within said position.

Biden Announces Religious Freedom and Anti-Semitism Nominations

President Biden today announced the names of four individuals who he intends to nominate to key positions involving religious affairs. Two of the nominations are for positions at the ambassadorial level:

Rashad Hussain, Nominee for Ambassador-at-Large for International Religious Freedom

Deborah Lipstadt, Nominee for Special Envoy to Monitor and Combat Anti-Semitism with the Rank of Ambassador

Two others are nominations to USCIRF: 

Khizr Khan, Appointee for Commissioner of the United States Commission on International Religious Freedom

Sharon Kleinbaum, Appointee for Commissioner of the United States Commission on International Religious Freedom

The White House announcement sets out extensive biographical facts on each nominee.

Defrocked Cardinal McCarrick Charged Criminally In Massachusetts For Sex Abuse Committed Decades Ago

 CNN Reports that a criminal complaint in a Massachusetts state trial court charges now-defrocked Cardinal Theodore McCarrick with three counts of indecent assault and battery on a person over 14 years old.  The charges grow out of abuse of a boy beginning in 1974. McCarrick becomes the highest ranking Catholic clergy member to face criminal charges for sex abuse of a minor.

11th Circuit: Exclusion of Anti-LGBT Group From Charitable Donation Program Is Upheld

In Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., (11th Cir., July 28, 2021), the U.S. 11th Circuit Court of Appeals affirmed an Alabama federal district court's dismissal of a defamation and religious discrimination suit brought by a Christian ministry and media company.  At issue is Amazon's customer-choice charitable donation program which excludes as possible beneficiaries organizations that are designated as hate groups by the Southern Poverty Law Center. Coral Ridge was listed as a hate group because of its religious beliefs opposing LGBTQ conduct. The court dismissed the defamation claim because plaintiff failed to adequately plead actual malice (i.e., knowledge of falsity or reckless disregard of the truth). The court dismissed Coral Ridge's claim of religious discrimination in violation of the public accommodation provisions of the 1964 Civil Rights Act, saying in part:

[T]he district court was correct in finding that Coral Ridge’s interpretation of Title II would violate the First Amendment by essentially forcing Amazon to donate to organizations it does not support.... 

Coral Ridge’s proposed interpretation of Title II would infringe on Amazon’s First Amendment right to engage in expressive conduct and would not further Title II’s purpose....

Courthouse News Service reports on the decision.

Catholic Hospital's Refusal To Allow Gender Dysphoria Procedure Violates ACA Discrimination Ban

In Hammons v. University of Maryland Medical System Corporation, (D MD, July 28, 2021), a transgender man challenged the refusal by University of Maryland St. Joseph Medical Center to allow his physician to perform a hysterectomy as part of his treatment for gender dysphoria. The hospital, while a subsidiary of the University of Maryland state system, adheres to Catholic religious doctrine. The court dismissed plaintiff's Establishment Clause and Equal Protection Clause claims on 11th Amendment state sovereign immunity grounds. However the court concluded that plaintiff had stated an adequate claim of sex discrimination that is prohibited by §1557 of the Affordable Care Act.

Free Exercise Challenges To Illinois COVID Orders Dismissed As Moot

In Elim Romanian Pentecostal Church v. Pritzker, (ND IL, July 26, 2021), an Illinois federal district court dismissed as moot religious freedom challenges by two churches to Illinois Governor Jay Pritzker's now-expired emergency COVID-19 orders. The court said in part:

[I]t is absolutely clear that the alleged wrongful behavior— restrictions on religion due to the COVID-19 pandemic— are not reasonably expected to recur.

Clergy Sex Abuse Case Alleges Racial Discrimination As Well

A clergy sex-abuse case with a new twist was filed this week in a Wisconsin federal district court.  As described by a press release from Nate's Mission:

This morning attorneys filed a federal civil complaint ... against the Franciscans of the Blessed Virgin Mary, headquartered in Franklin, Wisconsin, and the Diocese of Jackson in the case of former Franciscan Brother Paul West, alleging discrimination and racial disparities in the treatment of Raphael Love, a Black clergy abuse victim. The lawsuit is believed to be the first of its kind in the clergy abuse crisis alleging a pattern of racial discrimination both in the placement of known offenders and treatment of survivors.

The complaint (full text) in  Love v. Catholic Diocese of Jackson, (ED WI, filed 7/27/2021), alleges in part:

Defendants conspired ... to deceive ... Plaintiff and other African American victims to accept a nominal and unconscionable settlement when the Defendants knew that the amount was far below even the cost of the future treatment the Plaintiff's injuries ... and was designed in bad faith to take advantage of the Plaintiff's underprivileged and impoverished condition.

10th Circuit: Colorado Anti-Discrimination Law Can Apply To Wedding Website Designer

 In 303 Creative LLC v. Elenis, (10th Cir., July 26, 2021), the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. The Act bars refusing services because of a customer's sexual orientation and publishing any communication that indicates such discriminatory practices. The majority conceded that the law compelled speech and acted as a content-based restriction. However the majority found that it nevertheless was constitutional because it was narrowly tailored to further a compelling state interest.  The majority said in part:

Here, Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace....

To be clear, we, like the Dissent, do not question Appellants’ “sincere religious beliefs” or “good faith.”... Yet, we fail to see how Appellants’ sincerity or good faith should excuse them from CADA. Appellants’ intent has no bearing on whether, as a consequence, same-sex couples have limited access to goods or services....

The Communication Clause does not violate the Appellants’ Free Speech rights. As the district court correctly held, Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination....

Chief Judge Tymkovich filed a lengthy dissenting opinion. saying in part:

While everyone supports robust and vigorously enforced anti-discrimination laws, those laws need not and should not force a citizen to make a Hobson’s choice over matters of conscience. Colorado is rightfully interested in protecting certain classes of persons from arbitrary and discriminatory treatment. But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.

 ADF issued a press release announcing the decision.

9th Circuit: COVID Closure of Private Schools May Have Violated Due Process Rights of Parents

In Brach v. Newsom. (9th Cir., July 23, 2021), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, rejected due process challenges to California's COVID-related closure of in-person instruction in public schools, but held that the closure of in-person instruction in private schools may have violated parents' and students' due process rights. The court said in part:

We reach a different conclusion, however, as to the State’s interference in the in-person provision of private education to the children of five of the Plaintiffs in this case. California’s forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum. Because California’s ban on in-person schooling abridges a fundamental liberty of these five Plaintiffs that is protected by the Due Process Clause, that prohibition can be upheld only if it withstands strict scrutiny. Given the State closure order’s lack of narrow tailoring, we cannot say that, as a matter of law, it survives such scrutiny.

Judge Hurwitz dissented in a lengthy opinion, arguing that the case is moot and also disagreeing with the majority's substantive reasoning.