Mandatory Measles Vaccinations Ordered In Brooklyn Neighborhood

The New York City Commissioner of Health yesterday declared a public health emergency and ordered everyone who lives, works or resides in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt (full text of order).  NBC News reports on the order.  The epicenter of the measles outbreak is in the ultra-Orthodox community of Williamsburg. Mayor Bill DeBlasio announced the order. According to a health department release:

Under the mandatory vaccinations, members of the City’s Department of Health and Mental Hygiene will check the vaccination records of any individual who may have been in contact with infected patients. Those who have not received the MMR vaccine or do not have evidence of immunity may be given a violation and could be fined $1,000.

This emergency declaration comes a day after the city health department ordered yeshivas in Brooklyn to exclude all unvaccinated students from classes, or else face possible closure.

House Holds Hearing On Hate Crimes and White Nationalism

The House Judiciary Committee today held a hearing on Hate Crimes and the Rise of White Nationalism. The full text of the prepared testimony of most of the witnesses, and a video of the full four hours of hearings are available on the committee's website.

Senate Will Investigate Yale's Application of Its Non-Discrimination Policy To Public Interest Stipends

Senator Ted Cruz, Chairman of the Constitution Subcommittee of the U.S. Senate Judiciary Committee told Yale Law School Dean Heather Gerken in a letter (full text) sent last week that the Subcommittee is opening an investigation into the Law School's recent extension of its non-discrimination policy to summer and post-graduate public interest fellowships and loan forgiveness for public interest careers. According to Yale Daily News, the move comes in reaction to the law school's announcement:

We recently decided that the Law School will require that any employment position it financially supports be open to all of our students. If an employer refuses to hire students because they are Christian, black, veterans, or gay, we will not fund that position.

The policy change came after negative reaction, particularly by LGBTQ groups, to the Federalist Society's speaking invitation to a lawyer from Alliance Defending Freedom. In his letter, Sen Cruz said in part:

[I]t appears that the policy arose from unconstitutional animus and a specific discriminatory intent both to blacklist Christian organizations like the Alliance Defending Freedom and punish Yale students whose values or religious faith lead them to work there.

UPDATE: Here is Yale Law School's response to Sen. Cruz's letter, emphasizing that its policy only applies to hiring practices, and not to policy objectives of the organization. [Thanks to Jim Oleske for this update item].

Recent Articles of Interest

From SSRN:

• L. Joe Dunman, The Devil in Recent American Law, (Pace Law Review, Forthcoming).
• Derek Ross, 'Intolerant and Illiberal'? Trinity Western University and its Implications for Charter Jurisprudence, ((2019) 89 Supreme Court Law Review (2d)).
• Paul H. Robinson, Codifying a Sharia-based Criminal Law in Developing Muslim Countries, (U of Penn Law School, Public Law Research Paper No. 19-15 (2019)).
• Meir Dan-Cohen, On the (Im)morality of the Death Penalty, (Berkeley Journal of Criminal Law, Vol. 23, 2018).
• I. Glenn Cohen, The Regulation of Reproduction and Best Interests Analysis, (The Oxford Handbook of Children and the Law (James G. Dwyer, ed. OUP, 2019)).
• Laura Portuondo, Abortion Regulation as Compelled Speech, (UCLA Law Review, Vol. 67, 2020).
• Jeremiah A. Ho, Queer Sacrifice in Masterpiece Cakeshop, (Yale Journal of Law & Feminism, Forthcoming).

State of Emergency To Combat Measles Ended By Court

As previously reported, in late March Rockland County, New York declared a state of emergency to combat a growing measles outbreak.  It banned any person under 18 who has not been vaccinated for measles from all places of public assembly. On April 3, a suit was filed in state court challenging the State of Emergency Declaration. The complaint (full text) in Doe v. Day, (Rockland Cty Sup. Ct., filed 4/3/2019), contended among other things that the Declaration will bar those with religious exemptions from vaccination requirements from celebrating Passover or Easter at their houses of worship. On Friday, a trial court judge agreed with plaintiffs.  Rockland/ Westchester Journal News reports in part:

A judge Friday halted Rockland County Executive Ed Day's emergency declaration barring children who are unvaccinated against measles from schools, places of worship and other public areas.

Acting state Supreme Court Judge Rolf Thorsen's injunction stated that the 166 cases cited by the county since the measles outbreak began last October did not rise to the level of an epidemic or constitute a disaster. Day's reliance on executive law in issuing the emergency declaration "may have been misplaced," the decision stated.

UPDATE: Here is the full text of the opinion in W.D. v. Rockland County,   (Rockland Cty. Sup. Ct., April 5, 2019) issuing a preliminary injunction against the emergency declaration. [Thanks to Eugene Volokh for the opinion.]

Clearing A Courtroom OK'd For Testimony By Muslim Woman With Uncovered Face

In Copper v. Superintendent of Sci-Greene, 2019 U.S. Dist. LEXIS 59150 (ED PA, April 2, 2019), a Pennsylvania federal magistrate judge recommended rejecting a claim of ineffective assistance of counsel brought by convicted murderer Tyreese Copper.  Copper argued that his counsel should have objected that the way in which the trial judge accommodated the religious concerns of a Muslim woman who was one of the prosecution witnesses violated his right to a public trial. The witness was wearing a burqa. The trial court judge insisted that she uncover her face so that the jury could assess her credibility. The judge however agreed to clear public spectators from the courtroom while she testified with her face cover removed.

No State Action In Denial of Club Leadership Position to Mormon High Schooler

In Ayers v. Fellowship of Christian Athletes, (ED CA, April 4, 2019), a California federal district court dismissed a religious discrimination suit filed under 42 USC Sec. 1983 against against the after-school non-curricular high school club, Fellowship of Christian Athletes ("FCA") and others involved with it.  FCA met on school grounds and was sponsored by a school teacher. Plaintiff Anne Ayers complains that she was denied a leadership position in FCA because of her Mormon faith.  The court held the fact the teacher and high school principal acquiesced in the denial is not enough to make the private parties involved "state actors."

Inmate's Suit Seeks Imam In Execution Chamber

In the wake of two widely publicized U.S. Supreme Court actions involving similar issues in Alabama and Texas, suit was filed this week by a Muslim death row inmate in Alabama who wants to have an imam present in the execution chamber when when he is executed. The complaint (full text) in Burton v. Dunn, (MD AL, April 4, 2019), alleges that Charles Burton's rights under RLUIPA, the Alabama Religious Freedom Amendment, the Establishment Clause and the Free Exercise clause are violated by the prison's current policy under which only the prison's mainline Protestant Christian chaplain is present in the execution chamber. Burton objects to that chaplain's presence. Stanford Law School's Legal Clinic issued a press release announcing the filing of the lawsuit. [Thanks to James Sonne for the lead.]

Belgian Kosher Slaughter Ban Referred To European Court of Justice

As previously reported, in January Belgium's Council of State-- the country's highest court-- heard oral arguments on challenges to laws in Wallonia and Flanders that effectively ban kosher and halal slaughter by requiring animals be stunned before slaughter. Jewish News reported yesterday that the Belgian court has now referred the case to the European Court of Justice for a non-binding opinion on whether the bans are consistent with European Union law.

Suit Challenges Zoning Ban On Tarot Reading

A lawsuit was filed yesterday in a Virginia federal district court alleging that the Town of Richlands, Virginia violated plaintiff's rights in refusing to amend its zoning ordinance to allow him to operate a Tarot reading business in the town. The complaint (full text) in Mullins v. Town of Richlands, Virginia, (WD VA, filed 4/4/2019) alleges in part:

4.... Town of Richlands’ officials have used the Town’s licensing and zoning scheme to prohibit Mr. Mullins from reading Tarot as part of his business because of their disapproval of his religious views and practices.

5. Defendants’ effective prohibition on Tarot reading as part of Mr. Mullins’ business constitutes viewpoint discrimination and is an unconstitutional prior restraint.... Defendants further violate Mr. Mullins right to free exercise of religion .... Finally, Defendant Town of Richlands’ licensing and zoning scheme imposes a substantial burden on Mr. Mullins’ religious exercise in violation of RLUIPA and the Virginia Religious Freedom Act.

The complaint describes the hearing on plaintiff's zoning application:

Several local residents admonished the Town Council against amending the zoning ordinance by citing biblical scripture and warning of dire spiritual consequences for the Town if it allowed fortune telling in Richlands.

WSLS News reports on the lawsuit.

Court Says RLUIPA Claims By Mosque May Proceed

In Adam Community Center v. City of Troy, (ED MI, April 3, 2019), a Michigan federal district court refused to dismiss RLUIPA substantial burden, discrimination and unequal treatment claims brought against the city of Troy, Michigan and various of its zoning officials.  At issue was the city's denial of a zoning variance for setback requirements that would have allowed Adam Community Center to use an existing commercial building as a mosque. The court said in part:

Here, Plaintiff’s complaint sufficiently states a substantial burden claim. Plaintiff alleges that it cannot conduct prayer services in its current facility, that there are no Muslim places of worship within the City for Plaintiff and its community members to practice their religion, that there are no other properties available in the City that satisfy the City’s zoning requirements for places of worship, and that not having a place of worship within the City poses a substantial burden on its ability to engage in religious exercise. Plaintiff also alleges facts, which if true, would support its theory that the City acted with discriminatory intent and treated Plaintiff differently from other faith based organizations. Plaintiff specifically alleges that the zoning laws have not been applied neutrally to it and that commercial businesses and Christian churches are treated more favorably.

Detroit News reports on the decision.

Settlement Reached Requiring Subdivision Gates To Be Open On Sabbath

According to a press release this week from the Office of the New Jersey Attorney General, a settlement agreement has been reached in a religious discrimination suit filed with the state civil rights division:

The homeowner, Nathan Reiss, filed a discrimination complaint in 2017 against The Enclave at the Fairways in Lakewood, alleging that security measures at the adult community interfered with his ability – and the ability of his fellow Orthodox Jewish neighbors – to observe the Sabbath. Specifically, Reiss alleged, a locking electronic pedestrian gate at a community entrance near his home prevented Orthodox Jewish Sabbath observers from walking to synagogue....

Under the settlement announced today and a similar settlement reached in a case filed in federal court, the Enclave Homeowners Association has agreed to unlock the pedestrian gate on the Sabbath, and to make other scheduling accommodations for Jewish Holy Days.

Matzav reports on the settlement. [Thanks to Steven H. Sholk for the lead.]

6th Circuit Upholds Kentucky's Abortion Informed Consent Law

In EMW Surgical Women's Center, P.S.C. v. Beshear, (6th Cir., April 4, 2019), the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected a 1st Amendment free speech challenge to Kentucky's Ultrasound Informed Consent Law. According to the court:

... Kentucky directs a doctor, before performing an abortion, to auscultate (or make audible) the fetal heartbeat, perform an ultrasound, and display and describe the ultrasound images to the patient.

The majority concluded:

H.B. 2—The Ultrasound Informed Consent Act—is an informed-consent statute like the statute in Casey because it provides truthful, non-misleading, and relevant information related to an abortion. The statute incidentally burdens speech only as part of Kentucky’s regulation of professional conduct. Therefore, H.B. 2 is not subject to any heightened scrutiny with respect to the doctors’ First Amendment rights, and it does not violate those rights....

Judge Donald dissented, saying in part:

The Commonwealth has coopted physicians’ examining tables, their probing instruments, and their voices in order to espouse a political message, without regard to the health of the patient or the judgment of the physician....  [T]he majority 1) conflates the undue burden and First Amendment standards, while misreading the explicit language of Casey; 2) ignores the national standards of medical care; and 3) disregards the evidence showing that H.B. 2 is not consistent with the medical practice of informed consent.

[Thanks to Tom Rutledge for the lead.]

Third Muslim Circumcision Death In Italy

AP reported yesterday on the third death in Italy since December of infant or toddler boys circumcised at home by Muslim families. Apparently Muslim immigrants sometimes have difficulty accessing circumcision services in hospitals either because of the cost or because some Italian doctors refuse to perform the procedure on boys under 4 years of age.

Following SCOTUS, Texas Says No Chaplains In Execution Chamber

In response to last week's U.S. Supreme Court decision in Murphy v. Collier (see prior posting), the Texas Department of Criminal Justice has changed its execution protocol.  According to UPI, under the new rules only security personnel may be in the execution chamber while an inmate's execution is carried out.  No chaplains are permitted.  Official prison chaplains will be available to inmates until they are taken to the execution chamber.  Any spiritual adviser will be able to observe the execution from the witness room. Justice Kavanaugh's opinion last week indicated that this would be one permissible option to avoid denominational discrimination.

Catholic School Challenges City's Anti-Discrimination Ordinance

A small Catholic college preparatory school in South Euclid, Ohio has filed suit in federal district court challenging the city's recently enacted anti-discrimination ordinance.  The complaint (full text) in The Lyceum v. City of South Euclid, Ohio, (ND OH, filed 4/3/2019), challenges the lack of any exemption for religious organizations in the ordinance that bars employment, housing and public accommodation discrimination on the basis of  religion, creed, marital status, gender identity or expression, or sexual orientation, among other categories. It also prohibits statements indication that individuals are unwelcome on these bases. The suit alleges that the ordinance violates the school's 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit. Cleveland.com reports on the case.

SDNY: Title VII Anti-Retaliation Provision Does Not Apply To Critic of Religious Group's Gender Discrimination

In Aparicio v. Christian Union, Inc., (SD NY, March 29, 2019), a New York federal district court dismissed a Title VII retaliation claim brought by an employee of a religious organization. Christian Union is a non-profit organization that operates student leadership organizations at Ivy League colleges. Plaintiff, CUI's former Director of Public Affairs, claims that he was fired because he complained that CUI's policy of excluding women from leadership positions in the organization violates Title VII's anti-discrimination provision. Title VII explicitly allows religious organizations to discriminate on the basis of religion (but not on other bases).  The court here, however, went further. While concluding that the ministerial exception doctrine does not apply, it held:

... CUI's "complementarian" policy, which reserves executive positions for men, reflects its right to choose who performs certain religious roles within the organization. Therefore, in this case, the Free Exercise Clause bars the Court from asserting Title VII's secular sensibilities on who CUI allows to perform its highest religious roles.

Furthermore, Title VII's anti-retaliation provision does not apply when the basis for the alleged retaliation are an employee's objections to his or her employer's religious discrimination.... Essentially, Title VII "permits religious organizations to advance their religious missions by discriminating based on religion in employment," and, where a retaliation claim is based on complaints directed toward that permissible discrimination, Title VII's anti-retaliation provision "does not apply." Lown v. Salvation Army, Inc., 393 F. Supp. 2d 223, 246, 254 (S.D.N.Y. 2005).

Accordingly, applying Title VII's discrimination and retaliation provisions to CUI's "complementarian" policy violate the Free Exercise Clause. For that reason, Plaintiff's Title VII anti-retaliation claim must be dismissed.

Utah Enacts Hate Crimes Law

Utah Governor Gary Herbert yesterday signed S.B. 103 Victim Targeting Penalty Enhancements (full text). The new law creates enhanced penalties for various crimes when the victim was targeted because of 18 personal attributes. These include race, religion, sex, sexual orientation and gender identity. Utah Policy reports on the enactment of this hate crimes bill.

Parents Failed To Show Sincere Religious Anti-Vaccine Belief

In an administrative decision handed down last month, the New York State Education Department affirmed the denial of a religious exemption from state immunization requirements because parents seeking the exemption failed to show they had a sincerely-held religious belief in opposition to immunization. In In re Appeal of M.W., (NYSED, March 20, 2019), the Commissioner held that the general statements submitted by petitioners regarding their religious beliefs were insufficient to show a sincerely-held religious belief. The students and their family were members of the Temple of the Inner Flame. They argued:

Due to the spiritual beliefs of my families [sic] religion, [the students] cannot receive any medical vaccines.  They are a foreign substance that is not naturally found in the body.  We consider our bodies a temple of God that should be treated as such.

WKBW News reports on the decision.

Court Refuses To Enjoin Activity Ban Imposed On Non-Vaccinated Students

In Kunkel v. NKY Independent Health Department, (KY Cir. Ct., April 2, 2019), a Kentucky state trial court refused to grant a preliminary injunction, thereby upholding the steps taken by a local health department to control an outbreak of chicken pox at a Catholic high school.  The health department first imposed an extra-curricular activity ban, and subsequently an attendance ban for students who were not vaccinated or otherwise immune.  Jerome Kunkel objected on religious grounds to being vaccinated for chicken pox because the vaccine originated from aborted fetal cells. The court noted that the state is not requiring Kunkel to take the vaccination, but is merely excluding him from school as a means of controlling the outbreak. Fox 19 News reports on the decision.

UPDATE: On June 26, 2019, according to the NKY Health Department, the Kentucky Court of Appeals upheld the trial court's decision.

Same-Sex Marriage Legalized In Cayman Islands

A decision handed down last Friday by the Cayman Islands Grand Court has legalized same-sex marriage in the Caribbean nation that is a British Overseas Territory.  Cayman Compass reports:

The decision, which was met by applause from around 80 people who packed into Courtroom 5, follows a petition by Day and her partner Vickie Bodden Bush.

The couple, who have been in a committed relationship for seven years and have an adopted daughter together, brought a joint judicial review and constitutional challenge after government refused their application to marry in April last year.

Chief Justice Anthony Smellie ruled on Friday that the decision was discriminatory. He said preventing same-sex couples from accessing marriage, and the suite of rights that come with it, was a clear violation of freedoms guaranteed in Cayman’s constitution, including the right to a private and family life.

Chief Justice Smellie used his powers under the Constitution to rewrite the Marriage Law. He ordered that the clause in the law, specifying that marriage is reserved for heterosexual couples, be altered to state, “‘Marriage’ means the union between two people as one another’s spouses.”

Canadian Tribunal Finds Anti-Transgender Election Pamphlet Amounts To Illegal Discrimination

In Canada, the British Columbia Human Rights Tribunal last week held that a Christian activist violated the province's Human Rights Code when he circulated a pamphlet attacking a candidate for the province's Legislative Assembly because of her transgender status.  In Oger v. Whatcott, (BCHRT, March 27, 2019), the Tribunal held that William Whatcott's conduct amounted to unlawful hate speech and discrimination against transgender advocate Morgane Ogerunder.  At issue was the application of Section 7 of the Human Rights Code which prohibits publications that, among other things, indicate an intent to discriminate or which likely expose a person to hatred or contempt on the basis of their gender identity or expression. As described by the Tribunal:

Mr. Whatcott created a flyer entitled “Transgenderism vs. Truth in Vancouver‐False Creek” [Flyer]. In it, he called Ms. Oger a “biological male who has renamed himself… after he embraced a transvestite lifestyle”. He expressed a concern “about the promotion and growth of homosexuality and transvestitism in British Columbia and how it is obscuring the immutable truth about our God given gender”. He described being transgender as an “impossibility”, which exposes people to harm and constitutes a sin. Mr. Whatcott ended the Flyer with a call to action: do not vote for Ms. Oger or the NDP.

In its 105-page opinion, the Tribunal rejected Whatcott's freedom of expression and religion defenses, balancing the Charter of Rights and Freedoms against the objectives of human rights legislation. Toronto Star reports on the opinion.

Failure To Provide Employee Religious Accommodation Upheld

In Dockery v. Maryville Academy, (ND IL, March 29, 2019), an Illinois federal district court dismissed an employee's Title VII failure to accommodate and religious discrimination claims. Plaintiff, a youth care worker at a child welfare agency, wanted Fridays and Saturdays off for religious reasons. According to the court:

It remains unclear to the Court what religion Plaintiff claims to belong. Some evidence indicates that Plaintiff is Jewish. Plaintiff identified himself as a “Jew” on his employee information sheet. Plaintiff refereed to his culture as Judaism during his deposition. Yet Plaintiff also testified that his culture believes that Jesus Christ is the savior....  Still, the Court recognizes that “sincerity rather than orthodoxy is the touchstone” for determining whether a belief is sincerely held.

The court concluded however:

Defendant had an objective basis for questioning whether Plaintiff sincerely believed that it was against his religion to work during the sabbath. Plaintiff’s failure to provide more information to his employer as requested is grounds for granting summary judgment.

Recent Articles of Interest

From SSRN:

• Jianlin Chen, Lying About God (and Love?) to Get Laid: The Case Study of Criminalizing Sex Under Religious False Pretense in Hong Kong, (Cornell International Law Journal, Vol. 51, No. 3, 553-607, 2018).
• Richard W. Garnett, Mild and Equitable Establishments, (First Things (April 2019)).
• Robin Fretwell Wilson, Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, (Connecticut Law Review, Vol. 51, No. 3, 2019).
• Michel Rosenfeld, Constitutionalism and Secularism: A Western Account, (Susanna Mancini, ed., Handbook on Constitutions and Religion (Edward Elgar Publishers 2019)).
• Brue P. Frohnen, Augustine, Lawyers & The Lost Virtue of Humility, (Catholic University Law Review, Forthcoming).
• Anthony Michael Kreis, Policing the Painted and Powdered, (Cardozo Law Review, Vol. 41, 2019, Forthcoming).
• Darryn Jensen, The Boundary between 'Not-for-Profits' and Government, (Matthew Harding (ed), Research Handbook on Not-for-Profit Law (Edward Elgar, Cheltenham, 2018) 153-170).

From SmartCILP:

• Lucien J. Dhooge, The Religious Freedom Restoration Act At 25: A Quantitative Analysis of the Interpretive Case Law, 27 William & Mary Bill of Rights Journal 153-212 (2018).

Zoning Ordinance Violates RLUIPA Equal Terms Provision

In Christian Fellowship Centers of New York, Inc. v. Village of Canton, (ND NY, March 29, 2019), a New York federal district court granted a preliminary injunction, holding that Canton (NY) violated the "equal terms" provision of RLUIPA when it refused to permit a church to locate in a district zoned commercial. The court described the challenged zoning law:

Section 325-11 ... of the Canton Village Code prohibits houses of worship from operating in the downtown zone even though it permits not-for-profit organizations to use nearby properties to meet for secular purposes....

In barring its enforcement against the church, the court said in part:

First, the Ordinance treats religious assemblies less well than secular assemblies that have equivalent impacts on its purposes. Second, the “formal differences” relied on by the Village do not trump the “practical” similarities between churches and the secular organizations the Ordinance treats more favorably.... And third, no compelling interest justifies the unequal treatment.

The court rejected the village's argument that churches could be excluded because the state liquor control laws prevented bars from locating within 200 feet of a church.

Religious Exercise Challenge To School's Transgender Policy Moves Ahead

In Students and Parents for Privacy v. School Directors of  Township High School District 211, (ND IL, March 29, 2019), an Illinois federal district court refused to dismiss religious exercise claims by a group of students and parents who object to a high school's policy that allows transgender students to use rest room and locker rooms conforming to their gender identity.  Adopting plaintiffs' label of "compelled affirmation policy," the court held that plaintiffs had stated a claim under Title IX, the Illinois Religious Freedom Restoration Act and the First Amendment.  The court said in part:

It is enough that plaintiffs allege SPP Parents and SPP Students have sincere religious beliefs that they should not undress or use the bathroom in front of members of the opposite sex and that SPP Parents have a sincere religious belief that they should teach such modesty to their children....

SPP Students are at risk of exposure to opposite-sex individuals while they are undressing or using the restroom, in violation of their sincerely-held religious beliefs.... 

[P]laintiffs have alleged that District 211 conveyed to students that anyone who objects to the compelled affirmation policy is a bigot or intolerant.

The court however dismissed plaintiffs' claims of violations of the right to bodily privacy and the right to control the education of one's children.

Limits On Rescheduling Hearings That Conflict With Religious Holidays Do Not Violate Free Exercise Rights

In Jack Jaffa & Associates v. City of New York, (NY Cty. Sup. St., March 21, 2019), a New York state trial court rejected a claim that rules of New York City's Office of Trials and Hearings violate the First Amendment.  Plaintiff, which represents clients who have been issued administrative summonses by New York City agencies, contended that rules which limit the ability to reschedule hearings that conflict with Jewish and Muslim holidays violate its rights and the rights of its clients.  The court held:

Petitioner has failed to state a claim for violation of its First Amendment right of free exercise of its religion. OATH's rules concerning the rescheduling and adjournment of hearings are neutral in both object and application and therefore "the First Amendment has not been offended."

Pope Issues New Law On Reporting of Sex Abuse of Minors and Vulnerable Adults In Vatican

On March 26, Pope Francis promulgated Law N. CCXCVII on the Protection of Minors and of Vulnerable Persons of Vatican City State.  It requires any public official of the Vatican City State who has information or a well-founded belief that a minor or other vulnerable person is the victim of abuse is required to report it to authorities, except for information obtained in the sacrament of confession. According to the Catholic Register:

While few minors are resident in Vatican City State, there are minors in the Sistine Chapel Choir, and there is a pediatric hospital and a minor seminary under Vatican City State jurisdiction....

The new law will now cover all forms of physical and emotional abuse -- not just sexual violence through coercion — as well as serious forms of mistreatment, neglect, abandonment and exploitation against minors, who are below the age of 18, and vulnerable adults.

As reported by AP:

According to the new Vatican definition, a vulnerable person is anyone who is sick or suffering from a physical or psychiatric deficiency, isn’t able to exercise personal freedom and has a limited capacity to understand or resist the crime.

The issue of whether “vulnerable people” can include seminarians, religious sisters or other adults who are emotionally dependent on clergy has come to the fore in the wake of the scandal over ex-Cardinal Theodore McCarrick, a once high-ranking American cleric who molested seminarians, and revelations of priests and bishops around the world sexually preying on nuns.

The new law covers all personnel who live in or work for the Vatican and any abuse that occurs in the Vatican, the 44-hectare (110-acre) city state in the center of Rome and its other territories, as well as the Holy See’s vast diplomatic corps.

The Vatican’s own ambassadors have figured in some of the most scandalous cases of sex abuse in recent years...

SNAP, an organization supporting clergy abuse victims, issued a press release generally reviewing the Vatican's action favorably, but complaining that the law requires reporting to internal Vatican officials rather than to independent secular law enforcement officials.

Brunei Further Implements Its Sharia Penal Law-- The Details

There has been extensive coverage in the press in recent days regarding the Sultan of Brunei's further implementation of Sharia law in his southeast Asian nation.  Press coverage has focused on implementation of the provisions on stoning for the offences of adultery and homosexual sex. (CNN, ABC). Here is a closer look at the legal steps the nation has taken.

In 2013, Brunei adopted Syariah Penal Code Order, 2013 (full text). The law was to be implemented in stages, beginning with crimes involving only jail terms. Last December, the Ministry of Religious Affairs published a Notice (full text) of the remaining provisions that will go into effect April 3.  These are provisions in Chapter I of the law imposing Sharia penalties, among other things, for theft offenses (Sariqah, Hirabah), adultery (Zina), rape (Zina Bil-Jabar), sodomy (Liwat), apostasy (Irtidad), and drinking intoxicating liquors. Section 94 on pregnancy out of wedlock was excluded from the provisions taking effect.

A new Criminal Procedure Code (full text) was also ordered effective as of January 1, 2019.

Pastor's Convictions For Corrupting Minors Dismissed

Christian Chronicle reports on a March 18, 2019 decision by a Pennsylvania trial court judge vacating a long-time Church of Christ youth minister's convictions for corruption of minors and indecent exposure.  Clyde Brothers, Jr. had been sentenced to five years in prison for showing pornographic movies and performing lewd acts in front of church boys. Granting a post-trial motion, however, the court held that the state's statute of limitations barred the prosecution.

Supreme Court Says Inmate Is Entitled To His Spiritual Adviser In Execution Chamber

Late last night, the U.S. Supreme Court, by a 7-2 vote, ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution, scheduled for last night, was carried out. A Texas federal district court had upheld the decision of prison authorities to allow only the prison's Christian chaplain to be in the room with Murphy. His Buddhist clergyman could be in the adjacent viewing room. (See prior posting.) In Murphy v. Collier, (Sup. Ct., March 28, 2019), the U.S. Supreme Court held:

The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.

Justices Thomas and Gorsuch voted against granting a stay of execution. Justice Kavanaugh filed a concurring opinion, saying in part:

For this kind of claim, there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.... [T]here are operational and security issues associated with an execution by lethal injection. Things can go wrong and sometimes do go wrong in executions, as they can go wrong and sometimes do go wrong in medical procedures. States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.

....What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.

The case moved through the Supreme Court rapidly. The district court's decision was handed down on March 26. A petition for a stay was filed and on March 28 Becket filed a 22-page amicus brief with the Supreme Court.  According to Becket, the Supreme Court's decision was handed down two-and-one-half hours after the scheduled start of the execution.

Court Enjoins Obama-Era Contraceptive Mandate Accommodation

In Dobson v. Azar, (D CO, March 26, 2019), a Colorado federal district court reopened proceedings in a case challenging Obama-era Affordable Care Act accommodation for religious non-profits and granted a permanent injunction against their enforcement to the extent they require insurance coverage for drugs or procedures "that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother." The suit by James Dobson and Family Talk was one of a large number of challenges to regulations that required religious non-profits that wished to opt out of the mandate for contraceptive coverage to complete an exemption form that had the effect of triggering coverage directly from the organization's insurer. The Trump administration promulgated Interim Final Rules creating a broader exemption. However multiple lawsuits have been filed challenging this broader exemption and two courts have issued preliminary injunctions against their enforcement.  The court concluded:

Given the uncertainty presented by the legal challenges to the IFR, I find and conclude that a permanent injunction is proper.

Colorado Springs Gazette reports on the decision.

Iowa Governor Signs Campus Free Speech Bill

Yesterday, Iowa Governor Kim Reynolds signed SF 274 (full text), a bill that is designed to protect free speech at public universities. The new law requires the state Board of Regents and the board of each community college to adopt an extensive policy to protect speech and expression. Among other things, it bars public universities from limiting non-commercial speakers to a free-speech zone.  As reported by Iowa State Daily, the section of the new law that has raised the most controversy is Section 3(3) which prohibits denying benefits to a student organization because it requires that its leaders agree to and support the organization's beliefs as interpreted by the organization.  This presumably allows religious organizations that oppose same-sex relations to bar members of the LGBTQ community from leadership positions.

9th Circuit: Sikh Asylum Applicant Did Not Show Past Persecution

To qualify for asylum as a refugee, an individual must show either past persecution or a well-founded fear of future persecution. (8 CFR 1208.13). In Singh v. Barr, (9th Cir., March 25, 2019), the U.S. 9th Circuit Court of Appeals held in a 2-1 decision that a citizen of India had shown neither. Amaneep Singh, a Sikh, approached members of the Dera Sacha Sauda at one of their recruitment meetings to stop them from criticizing Sikhism. He was chased out of the event. Two months later Dera Sacha Sauda members encountered Singh alone and beat him.  When Singh approached police, they demanded a 25,000 rupee bribe to help him. the majority concluded:

Because Singh’s evidence showed only that the police demanded a bribe on one occasion, the evidence does not compel a finding that the government was unable or unwilling to control the people who attacked him, and therefore does not compel a finding of past persecution....

Singh’s attackers were part of Dera Sacha Sauda, a small religious minority active in only some regions of India. There is no reason to think that Singh is at future risk from a group with such limited influence because he is a Sikh.

Judge Watford dissented saying in part:

Members of another religious faith told Singh to abandon his religion and join their own. When he refused to disavow his faith, they beat him until he was unconscious, hospitalizing him for two weeks. When he went to the police for help, they refused to help him unless he paid a bribe, which was more than he could afford to pay. The majority errs by concluding that these facts do not establish past persecution.

San Francisco Chronicle reports on the decision.

Christian School Challenges Zoning Requirement

A suit was filed this week in a Florida federal district court challenging the denial of a zoning exception that would allow continued operation of a small Christian school that serves primarily children with learning disabilities and children from underprivileged homes. The complaint (full text) in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida, (MD FL, filed 3/25/2019), alleges violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. ADF issued a press release announcing the filing of the lawsuit.

N.C. 20-Week Abortion Ban Partially Enjoined

In Bryant v. Woodall, (MD NC, March 25, 2019), a North Carolina federal district court enjoined enforcement of North Carolina's ban on abortions during or after the 20th week of pregnancy to the extent that the ban covers pre-viability abortions. Washington Post reports on the decision.

Another Death Row Inmate Denied Chaplain of His Choice During Execution

Last month in a widely publicized decision the U.S. Supreme Court  vacated the the stay of execution that had been granted the day before by the U.S. 11th Circuit Court of Appeals to a Muslim inmate who wanted to have his Imam instead of the Christian prison chaplain with him in the execution chamber. (See prior posting). Yesterday a Texas federal district court dealt with a similar request from a Buddhist inmate, and similarly denied a stay of execution because the inmate had waited too long to assert his objections. In this case the prisoner had the option of having a Christian prison chaplain or no chaplain present.  In Murphy v. Collier, (SD, TX, March 26, 2019), the court said in part:

Murphy gave TDCJ little time to decide whether to vary its policy. And Murphy gave TDCJ little time to litigate any legal challenge that would follow. Once informed that TDCJ would not deviate from its policy, Murphy waited over two weeks to file litigation in state court. He filed this action only two days before his execution.

"Given the State's significant interest in enforcing its criminal judgments . . . there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay."

Murphy's execution is set for tomorrow.

Rockland County Declares State of Emergency In Measles Outbreak

Rockland County, New York, which is battling a measles outbreak, has issued a 30-day county-wide Sate of Emergency Declaration (full text) banning any person under 18 who has not been vaccinated for measles from all places of public assembly. The Declaration defines the scope of the ban:

A place of public assembly shall be a place where more than 10 persons are intended to congregate for purposes such as civic, governmental, social, or religious functions, or for recreation or shopping, or for food or drink consumption, or awaiting transportation, or for daycare or educational purposes, or for medical treatment. A place of public assembly shall also include public transportation vehicles, including but not limited to, publicly or privately owned buses or trains, but does not include taxi or livery vehicles.

The county previously excluded all unvaccinated minors for schools.  (See prior posting.) Yesterday Rockland County issued a press release announcing the action. Gizmodo reporting on the ban says in part:

In the case of the Rockland outbreak, it’s thought the original carriers caught measles while visiting Israel. According to health officials, more than 80 percent of local cases have occurred among the unvaccinated. These cases have been concentrated among segments of the Orthodox Jewish community.

Recent Prisoner Free Exercise Cases

In Smith v. Drawbridge, (10th Cir., March 18, 2019), the 10th Circuit affirmed the dismissal of an Orthodox Jewish inmate's complaint that he received only a cold sack meal rather than a hot meal at the conclusion of the Fast of Tammuz.

In Newsome v. Fairley, 2019 U.S. Dist. LEXIS 39138 (SD MS, March 12, 2019), a Mississippi federal district court adopted in part a magistrate's recommendations (2019 U.S. Dist. LEXIS 40431, Jan. 28, 2019) and allowed an inmate who professed the Natsarim Faith to move ahead against two defendants on his complaint that he was denied a yeast free diet during Passover, and was denied immersion baptism and religious counseling.

In Wilson v. Virginia Department of Corrections, 2019 U.S. Dist. LEXIS 41528 (ED VA, March 13, 2019), a Virginia federal district court dismissed a hearing impaired inmate's contention that his religious exercise was substantially burdened when officials refused to permit him to purchase a larger TV set so he can view religious programming with large closed captioning. His equal protection claim was not dismissed.

In Howard v. Polley, 2019 U.S. Dist. LEXIS 41696 (D NV, March 13, 2019), a Nevada federal district court dismissed an inmate's complaint about different treatment of Muslim prisoners growing out of a shortage of imams to conduct Jumu'ah services in multiple housing modules.

In Arboleda v. O'Banion, 2019 U.S. Dist. LEXIS 41907 (ED CA, March 14, 2019), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that on one occasion he was denied access to a Jehovah's Witness religious service.

In Abreu v. Farley, 2019 U.S. Dist. LEXIS 42801 (WD NY, March 15, 2019), a New York federal district court dismissed the portion of an inmate's 531 paragraph complaint claiming that he is Jewish and is entitled to be served "Kosher loaves." The court concluded that plaintiff's beliefs were not sincerely held.

In Brandon v. Royce, 2019 U.S. Dist. LEXIS 42807 (SD NY, March 15, 2019), a New York federal district court rejected an inmate's claim that his free exercise rights were infringed when he did not receive a purportedly promised feed-in meal in exchange for his voluntarily not attending an oversubscribed Eid Celebration.

In Carawan v. Solomon, 2019 U.S. Dist. LEXIS 43609 (ED NC, March 18, 2019), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that his requests were denied for congregational prayer beyond just Friday Jumu'ah services. The court dismissed his complaint that the prison had no Zakat fund that would eliminate the administrative fee for him to done funds to charity.

Churches Withdraw Suit Against Austin's Non-Discrimination Ordinance.

Last week, plaintiffs in U.S Pastor Council v. City of Austin, (WD TX, March 19, 2019) filed a Notice of Dismissal of their lawsuit challenging Austin's anti-discrimination ordinance protecting against employment discrimination on the basis of sexual orientation or gender identity. Plaintiffs argued that the ordinance infringes the rights of churches that will not hire women as senior pastors, or practicing homosexuals or transgendered individuals for any church position (See prior posting.) As reported by the Austin Statesman, the city had argued urged dismissal of the suit on standing and other grounds. (Motion to dismiss.)

Consent Decree Defines Protected Anti-Abortion Activity

A consent decree (full text) was issued last week in Zastrow v. City of Toledo, (ND OH, March 19, 2019), enjoining the city of Toledo, Ohio from enforcing various City Code provisions against anti-abortion demonstrators engaged in non-obstructive, expressive activity on public sidewalks and medians outside a Toledo abortion clinic. The decree included a detailed description of the kind of expressive activities that are protected:

3. The “non-obstructive, expressive activity of pro-life demonstrators” ... includes activity protected by the First Amendment, including, but not limited to unamplified prayer, preaching, worship, singing worship songs, playing worship songs with instruments such as the acoustic guitar and violin, holding pro-life signs, distributing literature, and engaging passersby with their pro-life message.

4. The parties agree that the term “non-obstructive, expressive activity” means activity protected by the First Amendment that does not physically prevent a pedestrian from using a public sidewalk or other public way or that does not physically impede a vehicle from traveling on a public road or street. This does not mean that the person or persons engaging in the First Amendment activity must be moving all the time. Additionally, the First Amendment activity is not “obstructive” because a pedestrian might have to walk around the person engaging in the expressive activity. It is only “obstructive” when the person engaging in the First Amendment activity physically prevents a pedestrian from using the public sidewalk or prevents a vehicle from entering onto the premises....

Christian Post reports on the consent decree.

In Settlement Agreement, Michigan Will Enforce LGBTQ Non-Discrimination Provisions Against Religious Adoption Agencies

As previously reported, last September a Michigan federal district court in Dumont v. Lyon held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services (MDHHS) for permitting child placing agencies receiving state funds to use religious criteria to deny them services. Last Friday, Michigan Attorney General Dana Nessel announced that the state has entered into a settlement agreement (full text) (summary) that calls for the state to enforce non-discrimination provisions in agreements with foster care and adoption agencies.  The settlement applies to any agency contracting with MDHHS that discriminates against same-sex couples or LGBTQ individuals otherwise qualified as foster care or adoptive parents for any child accepted by the agency under a contract with MDHHS. These child placement agencies may not turn away or refer to another agency, or refuse to place a child with, an otherwise potentially qualified LGBTQ individual or same-sex couple. However a child placement agency may refuse for any reason to accept a referral from MDHHS of any particular child.

Recent Articles of Interest

From SSRN:

• Nathan B. Oman, John Calvin’s Quarrel with Civil Recourse Theory, (Christianity and Private Law, Robert Cochran & Michael Moreland, eds. (Cambridge, UP Forthcoming)).
• Anna Su, Establishment, (Law, Religion, USA (Joshua Dubler & Isaac Weiner eds., NYU Press, 2019)).
• Kent Greenfield, Brief for Professor Kent Greenfield As Amicus Curiae in Support of Respondents, State of Washington vs. Arlene's Flowers and Ingersoll vs. Arlene's Flowers, (Boston College Law School Legal Studies Research Paper No. 500 (March 2019)).
• Marc O. DeGirolami, The Traditions of American Constitutional Law, (Notre Dame Law Review, Forthcoming).
• Bret Matera, Divining a Definition: ‘Substantial Burden’ in the Penal Context Under a Post-Holt RLUIPA, (Columbia Law Review, Forthcoming).
• Stijin Smet, Conscientious Objection through the Contrasting Lenses of Tolerance and Respect, (Oxford Journal of Law and Religion (2019)).
• Roger Colinvaux, Fixing Philanthropy: A Vision for Charitable Giving and Reform, (Tax Notes, Vol. 162, No. 9, p. 1007, 2019).

From SSRN (non-US Law):

• Asim Jusic, An (Un)Exceptional Case: Strasbourg’s Court Reserved Nod to Religious Symbols in the Courtroom, (Forthcoming in Oxford Journal of Law and Religion (2019)).
• Radley Henrico, Proselytising the Regulation of Religious Bodies in South Africa: Suppressing Religious Freedom?, (Potchefstroom Electronic Law Journal, Vol. 22, 2019).
• Paul Johnson, The 'Gay Cake' Case - Lee (Respondent) v Ashers Baking Company Ltd and Others (Appellants) (Northern Ireland) [2018] UKSC 49, (February 27, 2019).
• Abu Umar Faruq Ahmad, Aishath Muneeza, Mohammad Omar Farooq & Rashedul Hasan, Post-Default Sukuk Restructuring: An Appraisal of Shari’ah Issues , (in Hassan, M. K. and Rashid, M. (eds.). Management of Islamic Finance Principle, Practice, and Performance, International Finance Review, Emerald Publishing, Volume 19, 113, Forthcoming).
• Puranjay K. Vedi, Working Paper: Tracing Burqa in Byzantine Christianity, (October 1, 2018).

From elsewhere:

• USCIRF, Legislation Fact Sheet, Anti-Extremism Laws, (March 2019).

Firefighter Not Entitled To Religious Exemption From Grooming Policy

In Smith v. City of Atlantic City, (D NJ, March 22, 2019), a New Jersey federal district court upheld the refusal by the Atlantic City Fire Department to grant a long-time employee a religious exemption from the Department's grooming policy.  Plaintiff is an African American male and a Christian who has recently decided to grow a 3-inch beard as an expression of his religious faith. Rejecting plaintiff's application for a temporary restraining order, the court concluded that he was unlikely to succeed on the merits of his free exercise, equal protection or Title VII claim.

Break-Away Moves By Methodist Congregation Are Invalid

In Laumalie Ma'oni'oni Free Wesleyan Church of Tonga v. Ma'afu, (UT App, March 21, 2019), a Utah state appellate court held that a mail-in vote to change the articles of incorporation of the Tongan United Methodist Church (TUMC) was invalid.  The amendments purported to break the congregation away from the parent United Methodist Church (UMC). The mail vote did not comply with the governance requirement of UMC's Book of Discipline which was incorporated by reference into TUMC's articles of incorporation.  Rejecting constitutional challenges, the court said in part:

[T]he district court’s interpretation and application of the Discipline was constitutionally sound. In resolving the dispute, the court looked to the corporation’s governing documents, “without inquiring into matters of church doctrine.” The Discipline requires any meeting of the Charge Conference or the Church Conference to be presided over and called by the district superintendent. The Discipline does not authorize mail-in voting....

Free Wesleyan argues that these matters relate to “faith and doctrine.” We disagree. Whether a corporate meeting must be called and presided over by a certain person and whether voting members must be present at a meeting are not matters of religious doctrine or faith.

Court Dismisses Suit Challenging Church's Internal Investigation

In Williams v. Kingdom Hall of Jehovah's Witnesses, (UT App, March 21, 2019), a Utah state appellate court upheld the dismissal of an intentional infliction of emotional distress claim brought by a member of the Jehovah's Witnesses against church bodies and individuals.  At issue was the manner in which a judicial committee of the Church conducted an investigation into plaintiff Ria Williams sexual conduct.  The court said in part:

In the summer of 2007, Williams met another Jehovah’s Witnesses congregant (“Church Member”). Williams and Church Member began seeing each other socially, but the relationship quickly changed and throughout the rest of the year Church Member physically and sexually assaulted Williams, who was a minor....

After questioning Williams about her sexual conduct, the Elders played an audio recording of Church Member raping Williams. Church Member recorded this incident and gave it to the Elders during their investigation of Williams. The recording was “several hours” in length. Williams cried and protested as the Elders replayed the recording. The Elders played the recording for “four to five hours” stopping and starting it to ask Williams whether she consented to the sexual acts. During the meeting Williams was “crying and physically quivering.” Williams conceded she was able to leave but risked being disfellowshipped if she did....

Allowing Williams’s claims in this case to be litigated would require the district court to unconstitutionally inject itself into substantive ecclesiastical matters. Williams argues she is not challenging the Church’s ability to determine what constitutes “sinful behavior”.... But Williams asks the factfinder to assess the manner in which the Church conducted a religious judicial committee, which requires it to assess religiously prescribed conduct....

We conclude Williams’s claim for IIED requires an inquiry into the appropriateness of the Church’s conduct in applying a religious practice and therefore violates the Establishment Clause of the First Amendment.

President Trump Issues Executive Order On Campus Free Speech

President Trump yesterday signed Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. (Full text). In lengthy remarks (full text) delivered by the President at the signing ceremony for the Executive Order, Trump emphasized the protection of religious speech.  He  introduced three students at the ceremony.  One, the president of Students for Life at Miami University, was required to post "trigger warnings" about a display of wooden crosses representing lives of the unborn. Another student from the University of Nebraska reported she was cursed at by staff and an instructor while standing at a table representing a conservative campus group. A third student from Northeast Wisconsin Technical College was told she was restricted to the campus free speech zone to hand out Valentine cards with messages such as "You are special" and "Jesus loves you."

President Trump said in part:

Today, we are delivering a clear message to the professors and power structures trying to suppress dissent and keep young Americans — and all Americans, not just young Americans like Ellen and Kaitlyn and Polly — from challenging rigid, far-left ideology.  People who are confident in their beliefs do not censor others — we don’t want to censor others — they welcome free, fair and open debate.  And that’s what we’re demanding.

Under the policy I am announcing today, federal agencies will use their authority under various grant-making programs to ensure that public universities protect, cherish — protect the First Amendment and First Amendment rights of their students, or risk losing billions and billions of dollars of federal taxpayer dollars.

The Executive Order itself, however, is vaguer, saying:

It is the policy of the Federal Government to: (a)  encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions;....

To advance the policy described in subsection 2(a) of this order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

Much of the Executive Order is devoted to other issues-- primarily transparency regarding the cost of college and student borrowing.

Non-Liturgical Protestant Navy Chaplains Refile In Long-Running Discrimination Litigation

Last year, a D.C. federal district court dismissed a long-running lawsuit brought by  non-liturgical Protestant Navy chaplains alleging discrimination against them by the Navy. (See prior posting.)  However the court severed certain claims with leave to file them in other jurisdictions.  Earlier this month those severed claims were included in a complaint filed in a Virginia federal district court.  The complaint (full text) in Lancaster v. Secretary of the Navy, (ED VA, filed 3/1/2019), summarized the allegations as follows:

This case addresses 27 Non-liturgical Navy Chaplains plaintiffs’ longstanding claims of retaliation and low fitness reports...; constructive discharge because of unlawful FOS [failures of selection]; and interference with their ministry, speaking, preaching and worship services based on denominational prejudice.

This retaliation resulted in plaintiffs’ FOS and either separation for FOS or constructive discharges. Senior Navy chaplains are the perpetrators and sources of these claims, primarily Roman Catholic and/or Liturgical Protestants, in positions of authority, influence and supervision representing and acting under the authority of the Navy and its CHC. The actions represent a pattern and practice of illegal retaliation and discrimination based on denominational hostility and prejudice.

WAVY News reports on the lawsuit.

Suit Charging Campus Anti-Semitism Is Settled

The Lawfare Project announced on Tuesday that a settlement has been reached in Volk v. Board of Trustees, a state court lawsuit by two Jewish students at San Francisco State University alleging anti-Semitic discrimination on campus. The suit in particular focused on the exclusion of Hillel from a campus Know Your Rights fair.  The case was scheduled to go to trial later this month.  Under the settlement, the University will issue a public statement saying that "it understands that, for many Jews, Zionism is an important part of their identity." It will hire a Coordinator of Jewish Student Life, and enhance anti-discrimination enforcement. It will allocate an additional $200,000 to promote viewpoint diversity and will allocate space on campus for a mural depicting such diversity. A similar federal court lawsuit was dismissed last October. (See prior posting.) Jewish News of Northern California reported on the settlement.

Two Church Leaders Plead Guilty To Tax Fraud Conspiracy Involving Diversion of Church Funds

On Tuesday, the U.S. Attorney's Office for the District of New Jersey announced that two church leaders have plead guilty to a charge of conspiracy to commit tax fraud:

The leader and the main treasurer of the Israelite Church of God in Jesus Christ admitted their respective roles today in a scheme in which both men caused the church to pay millions of dollars in personal expenses for the leader that the leader then omitted from his personal tax returns....

Grant and Warrington used their leadership positions in the church to divert to Grant millions of dollars belonging to the church and its members for Grant’s personal use and benefit. The defendants used a variety of methods to carry out the scheme. For example, Grant and Warrington created a purported entertainment company that portrayed Grant as an industry mogul whose wealth was derived from his success in the industry, thereby concealing from church members that his lifestyle was supported entirely by the church and donations from its members. 

Discrimination Suit By Jewish Woman Denied Admission To Social Work Program Moves Ahead

In Weiss v. City University of New York, (SD NY, March 18, 2019), a New York federal district court allowed a Jewish woman to move ahead with several racial and religious discrimination claims against City University of New York and its trustees, as well as against several administrators, growing out of the denial of plaintiff's application for admission to the school's Master of Social Work program.  Faigy Weiss was raised in the Hasidic Satmar community in New York, with Yiddish as her first language.  She alleges that the Dean for Diversity and Compliance told her that the social work school "conducted the group admissions interviews to weed out conservatives, because Trumps and Cruzes can’t be social workers" and that "Jews from religious backgrounds are too conservative to be social workers." The court held that these allegations sufficiently state an equal protection claim for discrimination based on race and religion, a claim under Title VI, and an Establishment Clause claim.

South Dakota Requires "In God We Trust" In Every Public School

Yesterday South Dakota Governor Kristi Noem signed Senate Bill 55 (full text) into law.  The new law requires every public school in the state to display the national motto "In God We Trust" in a prominent place. The law also provides for the state attorney general to assume the defense of any lawsuit that is filed challenging the law. Friendly Atheist reports on the new law.

ACA Mandate Does Not Violate RFRA

In Cash v. United States, (MD PA, March 20, 2019), a Pennsylvania federal district court rejected an attack on the Affordable Care Act's tax penalties for failing to purchase health insurance. Plaintiff taxpayers had religious objections to purchasing medical insurance and contended that the penalties substantially burdened their religious exercise under RFRA (see prior posting). The court disagreed, saying in part:

The Magistrate Judge ... found that the burden imposed on Plaintiffs was de minimis.... RFRA prohibits substantial burdens on the free exercise of religion absent a compelling governmental interest achieved by the least restrictive means.... Describing the thousands of dollars Plaintiffs have paid in ACA penalties since 2014 as de minimis may not be fair. However, that does not render the penalties substantially burdensome, either. Plaintiffs offer no indication that they are forced to decide between their religious beliefs and a benefit generally available. Moreover, Plaintiffs do not allege or otherwise show that the ACA penalty places a substantial burden on them to modify their religious conduct.... [T]he cost of the penalty would not exceed the cost to obtain the required level of insurance. Plaintiffs do not indicate how this applies substantial pressure to forego their religious beliefs. Staying true to their religion and avoiding health insurance would cost no more, and potentially cost less, than purchasing insurance at the expense of their religious beliefs.

Ecclesiastical Abstention Doctrine Governs Property Dispute In Hierarchical Church

In Holy Trinity Romanian Orthodox Monastery v. Romanian Orthodox Episcopate of America, (MI App., March 19, 2019), a Michigan state appellate court held that the trial court should have applied the ecclesiastical abstention doctrine to a church property dispute instead of the "neutral principles of law" approach.  Bishop Ioan Duvlea served as the abbot of the Holy Ascension Romanian Orthodox Christian Monastery until he was demoted and defrocked after a church trial.  A faction supporting him conveyed property belonging to the monastery to Holy Trinity, a new entity they formed.  The court, ruling in favor of the parent church body said in part:

This case requires determination whether Holy Trinity, a monastic corporate entity formed by a schismatic faction that left the ROEA, could claim ownership of the property that the faction conveyed from Holy Ascension before dissolving it. The ROEA contends that Holy Ascension owned but held in trust for the ROEA, a hierarchical church, the disputed property pursuant to church documents governing the ecclesiastical structure, polity, rules, discipline, and usage of the church with which Holy Ascension affiliated itself and to which it submitted....

In this case, the trial court failed to consider whether the ROEA constituted a hierarchical religious organization and did not examine the nature of the relationship of Holy Ascension with the ROEA and the Orthodox Church in America. The trial court failed to consider whether the actual adjudication of the legal claims in this case required the resolution of ecclesiastical questions, including the relationships between entities within the allegedly hierarchical religious denomination. Instead, the trial court stated without explanation that it found the dispute in this case merely secular requiring it to apply the neutral-principles-of-law approach. In so doing, the trial court erred.

The record reflects that the trial court substituted its interpretation of canonical texts and ignored the decisions of the ROEA relating to government of the religious polity. The trial court disregarded the evidence presented by the ROEA that required it to abstain and defer to the ROEA’s resolution of the property dispute. 

Repeal of Ban On Use of Civic Center For Worship Services Moots Injunctive Relief, But Not Damages

In Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, March 18, 2019), a South Carolina federal district court held that a church's request for injunctive relief was moot. The church initially rented space in the town's Civic Center for its worship services.  Subsequently the town changed its rules to bar renting of space for use for religious services. The church sued, and the town rescinded the ban. The church failed to show that the town might reinstate the ban.  The court said in part:

Although the resolution moots Redeemer Fellowship’s request for injunctive relief, it does not moot the church’s request for damages or for declaratory relief. Redeemer Fellowship’s prayer for relief asks that the court declare that the Town engaged in content-based discrimination and violated the church’s rights under the First and Fourteenth Amendments..... Redeemer Fellowship’s damages claim—the success of which depends on the court declaring that its constitutional rights were violated by the Town’s ban on religious worship services—survives this order. The court leaves it to the parties to determine whether or not Redeemer Fellowship did in fact suffer any damages by the Town’s prohibition of the church’s use of the Civic Center for their worship services from May 2018, when the church’s application for use of the Center was denied, until December 2018, when the Town rescinded the ban. 

Connecticut Diocese Settles Abuse Claims For $3.5M

The Catholic Diocese of Bridgeport, Connecticut announced yesterday that it has settled lawsuits filed last year by five victims of clerical sexual abuse.  The Maronite Order was involved in one of the cases.  The abuse took place almost 30 years ago.  The cases were settled through mediation for a total of $3.5 million. Most of the cost was covered by the Diocese's insurance. CT Post reports on the settlements.

Recent Prisoner Free Exercise Cases

In Schwartz v. Korn, 2019 U.S. Dist. LEXIS 38486 (ED TN, March 11, 2019), a Tennessee federal district court allowed an inmate to move ahead with his complaint that his food is not being prepared according to kosher requirements and he does not receive the same number of meals as other inmates.

In Khan v. Barela, 2019 U.S. Dist. LEXIS 38496 (D NM, March 11, 2019), a New Mexico federal district court dismissed a Muslim inmate's complaint that he was not provided  a clock, prayer schedule, or Muslim calendar, was deterred from participating in Ramadan and was not allowed to leave the pod on three occasions when Christian sermons were being delivered.

In Hardeman v. Trammell, 2019 U.S. Dist. LEXIS 39070 (ED OK, March 12, 2019), an Oklahoma federal district court dismissed an inmate's claim that limits on the amount of property that an inmate can possess led to confiscation of some of his religious books.

In Orum v. Michigan Department of Corrections, 2019 U.S. Dist. LEXIS 39278 (WD MI, March 12, 2019), a Michigan federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 222616, Dec. 11, 2018), and in a case in which a Jewish inmate complained that he was denied a religious diet and was retaliated against for filing a grievance about it, the court dismissed a number of plaintiff's claims but permitted him to move ahead with some of his RLUIPA and retaliation claims.

In Lombardo v. Freebern, 2019 U.S. Dist. LEXIS 39355 (SD NY, March 11, 2019), a New York federal district court dismissed a suit filed by a Jewish patient confined at a psychiatric facility. The suit claimed he was deprived of grape juice; denied access to his religious books and items; his conversation with Rabbi Schwab was interrupted; the menorah was broken; he was unable to attend the Passover Seder and the Eid ul-Fitr feast.

In Gates v. LeGrand, 2019 U.S. Dist. LEXIS 39766 (D NV, March 12, 2019), a Nevada federal district court accepted in part a magistrate's recommendation and allowed a Wiccan inmate to move ahead on his equal protection, but not his free exercise or due process, claim growing out of the denial of incense that he had been permitted to order.

Suit Seeks Change In Allegedly Anti-Semitic High School Curriculum

A suit seeking a writ of mandamus was filed last week in a Massachusetts state trial court against the city of Newton schools seeking a change in the high schools' history curriculum. The 60-page complaint (with over 400 pages of attachments and exhibits) (full text) in Dechter v. Newton School Committee, (MA Super. Ct., filed 3/11/2019) alleges in part:

Anti-Semitism is a deadly hatred. Defendants either disagree with this statement or share in this hatred because, for years, they have stubbornly refused to remove anti-Semitic and anti-Israel materials from the history lessons that they teach in the high schools of the City of  Newton. Despite significant community concerns, scholarly findings of anti-Jewish bias, and formal citizen requests for remedial action, Defendants have categorically and repeatedly refused to remedy the teaching of false and hateful stereotypes about Israel, Israelis, and the Jewish people. These refusals are not simply indecent and vile: they are also illegal under Massachusetts education and civil rights laws.

Newton Wicked Local reports on the lawsuit. (See prior related posting.)

ERISA Pre-Empts Jesuit Order's Claim For Proceeds of Priest's Retirement Account

In Wisconsin Province of the Society of Jesus v. Cassem, (D CT, March 18, 2019), a Connecticut federal district court dismissed breach of contract claims brought by a Jesuit Province against relatives of a deceased Jesuit priest in a suit over the proceeds of the priest's retirement accounts.  Four years before his death, the priest changed the beneficiaries of the accounts from his Jesuit Order to two of his relatives. The court describes the claim at issue:

Plaintiff alleges that the change in beneficiary designation was improper because Fr. Cassem’s vows prevented him from legally acquiring personal property and, therefore, he never owned the Accounts. Plaintiff alleges that “Fr. Cassem’s final vows constitute an enforceable contract among and between the Province and Fr. Cassem, through which Fr. Cassem fully and finally renounced and assigned any and all property then owned or later acquired to the Province.”... The Province argues that because Fr. Cassem was not entitled to retain or direct property for the benefit of any party other than the Province, the original designation of the Province as the beneficiary of the Accounts remains valid and enforceable. 

The court held, however, that plaintiff's contract claim is pre-empted by ERISA, saying in part:

The statute is intended to protect beneficiaries relying on long-accumulated benefits from having to fight challenges to those benefits under disparate standards.

The court rejected the Order's argument that ERISA pre-emption violates its rights under the Religious Freedom Restoration Act, saying in part:

whether or not the statute can apply to cases between private parties, RFRA certainly cannot be used as a procedural mechanism to legitimize a cause of action that contravenes federal law for a plaintiff that is contesting dismissal.... In any event, even if RFRA is applicable in the present case, it does not preclude ERISA preemption because ERISA does not impose a “substantial burden” on Plaintiff’s free exercise of religion.

Suit Challenging San Diego Schools' Anti-Islamophobia Program Is Settled

Freedom of Conscience Defense Fund announced Monday that it has finalized a settlement agreement (full text) with the San Diego Unified School District, resolving a lawsuit that it filed in 2017 challenging an Anti-Islamophobia program instituted by the school district to combat bullying and harassment of Muslim students.  (See prior posting.)  According to FCDF:

Under the terms of the settlement agreement, the District distributed a policy memo to area superintendents and principals regarding the First Amendment’s "limits on the conduct of public school officials as it relates to religious activity."

West Virginia Sues Catholic Diocese For Past Abuse of Minors

As reported by The Hill, West Virginia's Attorney General announced yesterday that the state had filed a civil suit against the Catholic Diocese of Wheeling-Charleston.  The case grew out of Pennsylvania's Statewide Investigating Grand Jury Report on sexual abuse of minors. (See prior posting.)  Some of the priests identified in that Report had at one time been employed by the West Virginia diocese. The complaint (full text) in State of West Virginia v. Diocese of Wheeling Charleston, (WV Cir. Ct., filed 3/19/2019), alleges that the Diocese knowingly employed admitted and credibly accused sexual abusers and hired priests and lay employees without adequate background checks. The suit was brought under West Virginia's Consumer Credit and Protection Act and contends that the Diocese falsely advertised that it provided a safe learning environment and intentionally concealed the danger in its educational and recreational services.

Bavarian Court Upholds Ban On Judges and Prosecutors Wearing Hijab

In Germany, Bavaria's constitutional court yesterday upheld a Bavarian law banning judges and prosecutors from wearing religious symbols in the courtroom. The court said that officials administering justice have a special obligation to be neutral in religion and ideology.  The ban was challenged a Muslim group that objected to the ban's application to the wearing of Islamic head scarfs. DW reports:

The judge voiced the opinion that the ban, which also forbids officials to wear religious symbols such as crosses or a kippa — or yarmulke — during court proceedings, did not go against laws on religious freedom or equality....

The Islamic group had argued that the ban violated both laws, as the Christian symbol of the cross hangs in Bavarian courtrooms.

This argument was not accepted by the court, which maintained that the presence of crosses was a different matter, as it was determined by the court administration and cast no doubt on the neutrality of individual judges or lawyers.

The court also said the ban did not discriminate against women, as other items of clothing with religious significance that were worn by men were also forbidden.

South African Court Invalidates Dutch Reformed Church's LGBT Policy

In South Africa, a 3-judge panel of the North Gauteng High Court set aside as unlawful and invalid a decision on same-sex relationships made by the General Synod of the Dutch Reformed Church during the Synod's November 2016 meeting. That decision reversed a 2015 policy that recognized same-sex civil unions and allowed the ordination of gays and lesbians.  In Gaum v. Van Rensburg, S.A. High Ct., March 8, 2019), the court said in part:

The Church denied that the 2016 decision prevents the participation of the LGBTQIA+ community in the church community, or that it impedes their private lives, or that the decision violates their constitutional rights.... On behalf of the Church it was submitted that the 2016 decision did not restrict Gaum’s right to freedom of association; Gaum is free to join another Church that interprets the Bible in the way that Gaum does....

The differentiation caused by the 2016 decision does inherently diminish the dignity of Gaum because same-sex relationships are tainted as being unworthy of mainstream church ceremonies and persons in a same-sex relationship cannot be a Minister in the Church....

There is an argument to be made that a Court cannot prescribe who must be appointed as a Minister in a Church. But, if a member of the Church is permitted to study to become a Minister in that Church, but disallowed to engage in his or her profession only due to the fact that he or she would be in same sex relationship there is an inherent contradiction in the conduct of the Church....

The threshold requirement in section 36 of the Constitution is that any limitation of a fundamental right must be “law of general application …” Where a church discriminates, it constitutes private discrimination, with the law of general application not likely to apply.

eNCA reports on the decision.

CORRECTION: SG's Views Sought In Title VII Religious Accommodation Case

The U.S. Supreme Court today asked for the Solicitor General to file a brief in Patterson v. Walgreen Co., (Docket No. 18-349, 3/18/2019). (Order List). In the Title VII case, the 11th Circuit held that Walgreens had offered reasonable accommodation for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. (See prior posting.) A prior posting incorrectly reported that cert. had been denied in the case.

Supreme Court Denies Review In B&B's Refusal To Rent To Lesbian Couple

The U.S. Supreme Court today denied review in Aloha Bed & Breakfast v. Cervelli, (Docket No. 18-451, certiorari denied 3/18/2019). (Order List).  In the case, a Hawaii sate appeals court held that a 3-room bed & breakfast violated the state's public accommodation law when the B&B owner refused on religious grounds to accept a room reservation from a lesbian couple. (See prior posting.) The Hawaii Supreme Court denied review. (See prior posting.)