Satanic Temple Sues Over Withdrawal Of Permission To Erect Monument

Minneapolis Star Tribune reported yesterday that The Satanic Temple is suing Belle Plaine, Minnesota for its withdrawal of permission to erect a temporary memorial to fallen soldiers in Veterans' Memorial Park. The monument would have been the first Satanic monument on public property in the country. The paper reports on the sequence of events leading to the lawsuit:

... [I]n 2017 [the city approved a different organization's monument:] a steel silhouette known as “Joe” that depicted a soldier kneeling before a cross. Soon, someone complained that “Joe” violated constitutional separation of church and state.

City leaders, fearing a lawsuit, ordered its removal. That triggered weeks of vehement protests in the city.... So the council designated an area in the park as a “limited public forum,” open to temporary memorials to fallen veterans.

The Satanic Temple... applied to install its own monument.... The city granted a permit, and the temple designed a 23-inch black cube inscribed with inverted pentagrams and topped with an upturned helmet, which it planned to install in July 2017.

That plan prompted more protests. So exasperated city officials decided to shut down the limited public forum, ordering the removal of “Joe” and withdrawing permission for the temple’s monument.

[Thanks to Tom Rutledge for the lead.] 

Recent Articles of Interest

From SSRN:

• Linda R. Meyer, Unreasonable Revelations: God Told Me to Kill, (Pace Law Review, Forthcoming).
• Philip Ostien, Ahmed Garba & Musa Abubakar, Nigeria's Sharia Courts,  (Chapter 2 of Sharia Implementation in Northern Nigeria Twenty Years On: Six Research Reports and an Overview, M. Tabiu, A.R. Mustapha and P. Ostien, eds., Forthcoming).
• Lisa Whitacre, Putting the Squeeze on Lemon: Lund, Bormuth, and the False Line Between Chaplain-Led and Legislator-Led Prayer, (March 17, 2019).
• Bridget J. Crawford & Emily Gold Waldman, Ministerial Magic: Tax-Free Housing and Religious Employers, (University of Pennsylvania Journal of Constitutional Law Online, Forthcoming).
• Amanda Harmon Cooley, Justiciability and Judicial Fiat in Establishment Clause Cases Involving Religious Speech of Students, (March 30, 2019).
• Gautam Bhatia, Religious Speech, (The Oxford Handbook for Free Speech (Forthcoming)).
• Nicholas Aroney & Benjamin Saunders, Freedom of Religion in Australia, (in Matthew Groves, Daniel Meagher and Janina Boughey (eds), The Legal Protection of Rights in Australia (Hart Publishing, Forthcoming)).
• Kyle Velte, Straightwashing the Census, (March 22, 2019).

From SmartCILP:

• Helen Y. Chang, A Brief History of Anglo-Western Suicide: From Legal Wrong to Civil Right. 46 Southern University Law Review 150-194 (2018).

Texas "No Boycott of Israel" Law Held Unconstitutional

A Texas federal district court last week held unconstitutional the Texas statute requiring all state contracts for goods or services to include a written verification from the contracting company that it is not, and during the contract will not, boycott Israel. In Amawi v. Pflugerville Independent School District, (WD TX, April 25, 2019), a Texas federal district court granted a preliminary injunction against enforcement of the anti-BDS statute or enforcement of any clause in state contracts barring boycott of Israel.  The court, in a 56-page opinion, said in part:

Plaintiffs are likely to succeed on their claims that H.B. 89 is unconstitutional under the First Amendment because it (1) is an impermissible content- and viewpoint-based restriction on protected expression; (2) imposes unconstitutional conditions on public employment; (3) compels speech for an impermissible purpose; and (4) is void for vagueness.

The suit was brought by five individuals who wished to contract, or had contracted, to provide services such as speech therapy and early childhood evaluations for a school district; translation of an art essay for a state University museum; judging high school debate tournaments; and providing podcasts for a public radio station. The court concluded that all of these were contracts with sole proprietorships, and were thus covered by the statute. Washington Post reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Catholic Agency Challenges Michigan's Child-Placement Anti-Discrimination Policy

Last week, a second lawsuit was filed challenging a settlement entered into by Michigan's Attorney General in which she agreed to enforce anti-discrimination provisions against adoption and foster care agencies contracting with the state which refuse to place children with same-sex couples or LGBTQ individuals who are otherwise qualified as foster care or adoptive parents. The first challenge was filed earlier this month in federal court. In last week's lawsuit, Catholic Charities West Michigan v. Michigan Department of Health and Human Services, (MI Ct. Claims, filed 4/25/2019), filed in state court, the complaint (full text) cites protections for faith-based child placement agencies found in Michigan statutes such as MCL §722.124e and §722.124f, and alleges in part:

[T]he Michigan Legislature intended to-- and did-- protect the religious exercise of faith-based providers like Catholic Charities.... Defendants have adopted a new policy that forces Catholic charities to choose between violating its religious beliefs about same-sex marriage and shutting down its foster care and adoption ministry.  Defendants' new policy misinterprets state law, violates Catholic Charities' rights under the U.S. and Michigan Constitutions, and adopts the anti-religious views and policy preferences of Defendant Attorney General Dana Nessel-- who has previously criticized Michigan's statutory protections for faith-based foster care and adoption providers as "a victory for the hate mongers."

ADF issued a press release announcing the filing of the lawsuit.

Defamation Suit Dismissed On Ecclesiastical Abstention Grounds

In McRaney v. North American Mission Board of the Southern Baptist Convention, (ND MS, April 22, 2019), a Mississippi federal district court dismissed on ecclesiastical abstention grounds a defamation suit by a the former executive director of the Baptist Convention of Maryland and Delaware (BCMD).  Plaintiff contended that the North American Mission Board defamed him to BCMD and tortiously interfered with his employment contract.  The court said that resolution of plaintiff's claims would require it to determine whether the Mission Board had a valid religious reason for its actions-- and "That the court cannot do."  Baptist Press reports on the decision.

New York Archdiocese Releases Names of 120 Credibly Accused Clergy

On Friday, the Archdiocese of New York released a list of 120 clergy who have been credibly accused of sexually abusing a minor or possessing child pornography, or against whom a claim was found eligible for compensation by the Archdiocese's Independent Reconciliation and Compensation Program (IRCP).  Timothy Cardinal Dolan announced the release in a Pastoral Letter to members of the Archdiocese. Approximately 75% of the clergy on the list were ordained before 1970. Some 350 victims have been awarded compensation by the IRCP.  Only two cases have occurred since 2002. NPR reports on these developments.

Kansas Supreme Court Strikes Down D&E Abortion Ban

In Hodes & Nauser MDs, P.A. v. Schmidt, (KA Sip. Ct., April 26, 2019), the Kansas Supreme Court by a 6-1 vote upheld the trial court's injunction against the enforcement of S.B. 95 which bans, with limited exceptions, dilation and evacuation abortions in Kansas. The per curiam opinion of five justices said in part:

We hold today that section 1 of the Kansas Constitution Bill of Rights protects all Kansans' natural right of personal autonomy, which includes the right to control one's own body, to assert bodily integrity, and to exercise self-determination. This right allows a woman to make her own decisions regarding her body, health, family formation, and family life—decisions that can include whether to continue a pregnancy.

Under our strict scrutiny standard, the State is prohibited from restricting that right unless it can show it is doing so to further a compelling government interest and in a way that is narrowly tailored to that interest. The Doctors have shown they are substantially likely to prevail on their claim that S.B. 95 does not meet this standard. So the trial court's temporary injunction enjoining the enforcement of S.B. 95 is appropriate.

On remand to the trial court for a full resolution of the issues on the merits, the State is certainly free to assert any interests it believes compelling and show how S.B. 95 is narrowly tailored to those interests. We are aware that the evidentiary record is sparsely developed because of the narrow issue previously before that court: simply whether a temporary injunction should be granted. We, thus, decline the concurring opinion's invitation to guess at what the arguments and evidence might be in order to provide guidance on remand.

Justice Biles filed a concurring opinion and Justice Stegall filed a dissent. The 3 opinions span 199 pages. NPR reports on the decision.

IRS Recognizes Satanic Temple As A "Church"

The Satanic Temple announced yesterday that the Internal Revenue Service has recognized the organization as a "church" for federal income tax purposes. It says that among other things this will assure its standing in court to challenge religious discrimination and will allow it to apply for faith based government grants.  Rolling Stone reports on this, adding:

Although the Satanic Temple had previously rejected pursuing tax-exempt status, church president Lucien Greaves reversed this stance in 2017 after President Trump signed a “religious freedom” executive order. “As ‘the religious’ are increasingly gaining ground as a privileged class, we must ensure that this privilege is available to all, and that superstition doesn’t gain exclusive rights over non-theistic religions or non-belief,” Greaves wrote in the Satanic Temple newsletter....

Suit Against "Muslim-Free" Gun Range Dropped After Sign Is Removed

Religion News Service reports that the ACLU and CAIR have filed a motion to dismiss their lawsuit against Save Yourself Survival and Tactical Gun Range in Oktaha, Oklahoma after the Gun Range removed its sign that had declared the business a "Muslim-free establishment." The business' owners have affirmed that they will not repost the sign and will not exclude Muslim customers.

Ohio Probate Court Lacks Jurisdiction To Change Nationality of Moorish Science Adherent

In In re Easterling, (OH App., April 24, 2019), an Ohio state appeals court affirmed a probate court's decision in a case brought by a member of the Moorish Science Temple of America. The probate court granted Douglas Easterling's request to change his name to Raphael Kulika Bey. However it denied his request to change his race from "Black/African American" to "Moor/Aboriginal American national." The appeals court held that Ohio probate courts lack jurisdiction to change a person's race or nationality. While the probate court has jurisdiction to correct a birth record, here petitioner's birth certificate did not list his race or nationality, so there was nothing to correct.

Indian Court Says Hindu Marriage Act Covers Marriage Involving Transgender Woman

A trial court in India has held that a marriage between a man and a transgender woman, both of whom profess the Hindu religion, is valid under the Hindu Marriage Act and the Registrar of Marriages is required to register the marriage. In Arunkumar v. Inspector General of Registration, (Madras High Ct., April 22, 2019), the court said in part:

For too long, the transgender persons/intersex people have been languishing in the margins. The Constitution of India is an enabling document. It is inviting them to join the mainstream. Therefore, it would be absurd to deny the transgenders the benefit of the social institutions already in place in the mainstream....

When the right of the transgender persons to marry has been upheld by the Hon'ble Supreme Court, in the very nature of things, they cannot be kept out of the purview of the Hindu Marriage Act.

Deccan Herald reports on the decision.

4th Circuit: Inmate Fails To Prove Causation In His RLUIPA And Free Exercise Claims

In Wright v. Lassiter, (4th Cir., April 17, 2019), the U.S. 4th Circuit Court of Appeals rejected a Rastafarian inmate's claims that his rights under RLUIPA and the 1st Amendment were infringed when prison officials rejected his request to celebrate four annual religious holidays through communal feasts and three others that do not include feasts. The court, holding that "plaintiff must show that the prison's policies imposed a substantial burden on his exercise of sincerely held religious beliefs," concluded that plaintiff failed to show the required causation:

...Wright’s causation problem stems from the fact that he has requested communal gatherings and feasts. There is no such thing as a community of one, and Wright agreed at oral argument that he was not seeking a feast for himself alone. He therefore had to show that, but for the policies that allegedly prohibit the requested holiday gatherings, other inmates would join in the gatherings.... There was no testimony showing that any other Rastafarian at Central Prison or any other North Carolina prison had joined in his requests to celebrate in the manner he requested or would attend his gatherings if they were held....

Supreme Court Hears Oral Arguments In Title VII Case

Yesterday the U.S. Supreme Court heard oral arguments (transcript of oral arguments) in Fort Bend County, Texas v. Davis. In the case, the 5th Circuit held that the the requirement a person exhaust administrative remedies before bringing a Title VII employment discrimination action is not jurisdictional.  This meant that the county's delay in raising the defense of exhaustion could result in its forfeiting its right to raise the defense. Charlotte Garden at SCOTUSblog reports on the oral arguments.

Condo's Sex Segregated Swim Hours Violate Fair Housing Act

In Curto v. A Country Place Condominium Association, (3d Cir., April 22, 2019), the U.S. 3rd Circuit Court of Appeals held that a condominium's mostly sex-segregated swimming hours, adopted in deference to a large number of Orthodox Jewish residents, violates the federal Fair Housing Act. Judge Ambro's opinion focused on the fact that the swim schedule discriminates against women. Weekday evening times were mostly allocated to men.  He concluded:

Women with regular-hour jobs thus have little access to the pool during the work week, and the schedule appears to reflect particular assumptions about the roles of men and women.

He concluded that defendant had waived any RFRA defense, and even if it had not, the condominium association lacks standing to assert the defense.  Judge Fuentes' concurring opinion added:

I write separately to express my skepticism that the pool’s sex-segregated schedule could be saved by a more even allocation of evening hours between men and women. Our jurisprudence makes clear that facial discrimination does not become lawful merely because its burdens are felt by members of both sexes. We would have no problem concluding, for example, that a pool schedule that allocates two-thirds of its hours to swimming segregated by race and one-third of its hours to “Integrated Swimming” would be intolerable under the FHA. And the FHA’s prohibition on discrimination does not distinguish between discrimination on the basis of sex and discrimination on the basis of race.

ACLU issued a press release announcing the decision.

Certiorari Denied In Priest's Libel Suit Against Diocese

Yesterday the U.S. Supreme Court denied review in Gallagher v. Diocese of Palm Beach, Inc., (Docket No. 18-964, certiorari denied, 4/22/2019) (Order List).  In the case,  a Florida state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a defamation suit brought by a Catholic priest against the diocese in which he served. (See prior posting.) The Florida Supreme Court had denied review in the case.  South Florida Sun Sentinel reports on yesterday's U.S. Supreme Court's denial of certiorari.

Zoning Accommodation For Homeless Construction Is Upheld

In Ward v. Metropolitan Government of Nashville and Davidson County, Tennessee, (TN App., April 17, 2019), a Tennessee state appeals court upheld a local zoning decision granting an accommodate to property owned by a church on which it would build 22 micro-homes to house the homeless. As summarized by the court:

Appellants argue that the development should be subject to the zoning laws and procedures because the development would be constructed, owned, and operated by a lessee of the property that was not a religious institution or assembly or otherwise exercising religion and, consequently, applying the zoning laws to the development would not adversely affect the church’s exercise of religion.

The court held, however:

Given the nature of the project, the lease arrangement between Open Table and GUMC [Glencliff United Methodist Church] does not negate the protection that the statutes provide to GUMC; the project is born out of a common, religiously motivated desire to help the homeless, a cause that is recognized by the church as part of its core mission. Thus, it is entirely appropriate for GUMC to apply for and receive the accommodation allowed by the statutes. 

Charitable Organization Avoids Dismissal of RLUIPA Claims

In Layman Lessons Church v. Metropolitan Government of Nashville/ Davidson County, (MD TN, April 18, 2019), a Tennessee federal district court allowed a religious charitable disaster relief organization to move ahead with many of its claims under RLUIPA and the comparable state statute.  Plaintiff alleges that the city of Nashville discriminated against it through arbitrary enforcement of zoning and building code provisions. The court said in part:

Plaintiff has sufficiently alleged ... that the actions of Defendant—including, but not limited to, Defendant’s issuance of demolition orders, stop work orders, and storm water orders...; Defendant’s insisting that Plaintiff complete additional repair work and get additional permits than what was previously required; Defendant’s erroneously asserting that a protected stream existed on the property; and Defendant’s erroneously fining Plaintiff for “grading without a permit”—created a “substantial burden” on its free exercise of religion, in violation of RLUIPA.

Plaintiff also alleges that Defendant discriminated against Plaintiff based on its religion. Defendant does not mention this discrimination claim. Plaintiff has alleged that it was treated differently than other property owners because it is a religious organization.... Plaintiff has sufficiently alleged, for purposes of a motion to dismiss, that it was treated differently from non-religious property owners.... In addition, for the same reasons, Plaintiff has sufficiently alleged that it was treated on less than equal terms with a non-religious institution...

3rd Circuit: Philly May Require Its Foster Care Agencies To Accept Same-Sex Couples

In Fulton v. City of Philadelphia, (3d Cir., April 22, 2019), the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples.  The court said in part:

The City’s nondiscrimination policy is a neutral, generally applicable law, and the religious views of CSS do not entitle it to an exception from that policy. 

[A]t the preliminary injunction stage CSS shows insufficient evidence that the City violated the Free Exercise Clause. The Fair Practices Ordinance has not been gerrymandered..., and there is no history of ignoring widespread secular violations ... or the kind of animosity against religion found in Masterpiece. Here the City has been working with CSS for many decades.... And the City has expressed a constant desire to renew its relationship with CSS as a foster care agency if it will comply with the City’s non-discrimination policies protecting same-sex couples.

Philadelphia Inquirer reports on the decision.

Supreme Court Will Decide Whether Title VII Protects Gays and Transgender Individuals

The U.S. Supreme Court today granted review in three cases involving important questions of LGBT rights under Title VII of the 1964 Civil Rights Act.  First the Court granted certiorari in Bostock v. Clayton County, Georgia, (Docket No. 17-1618) (SCOTUSblog Case Page) and consolidated it with Altitude Express, Inc. v. Zarda (Docket No.17-1623) (SCOTUSblog Case Page) (see prior posting) in which it also granted certiorari (Order List 4/22/2019). The cases raise the question of whether Title VII's prohibition on discrimination "because of ... sex" covers discrimination against employees on the basis of sexual orientation.

Second, the Court granted review in R.G. & G.R. Harris Funeral Homes v. EEOC, (Docket No. 18-107, certiorari granted 4/22/2019 (SCOTUSblog Case Page) (See prior posting). The grant of certiorari was specifically on:

Whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins, 490 U. S. 228 (1989).

New York Times reports on the Supreme Court's action.

Recent Articles of Interest

From SSRN:

• John Vlahoplus, Foreign-Born Children of Disloyal Parents: Adam Muthana, Mary Arcedeckne and the Natural Born, (St. John's Law Review, Forthcoming).
• Eliza Bateman, 'His Garden a Wilderness' - The Balance between Equality and Freedom of Religion in Australia and Canada, (March 18, 2019).
• Scott D. Gerber, Law and Liberty of Conscience in Colonial Pennsylvania, (NYU Journal of Law & Liberty, Vol. 12, No. 3, 2019, Forthcoming).
• Martin Kwan, Human Gene Editing and Human Rights: An Uncertain Future, (Human Rights Series, 2019).
• Nitish Nawsagaray, Misuse of the Prevention of Atrocities Act: Scrutinising the Mahajan Judgment, 2018, (Economic & Political Weekly, June 2, 2018 vol. LIII no. 22).

From SmartCILP:

• The Question of Religious Freedom: From John Courtney Murray, SJ and Vatican II to the Present. Articles by Miguel H. Diaz, Robin W. Lovin, Barry Sullivan, Leslie C. Griffin, Hille Haker, Kathleen A. Brady, Carmen Nanko-Fernandez, Thomas C. Berg. 50 Loyola University Chicago Law Journal 1-209 (2018).
• Kristina M. Campbell, Sanctuary, Temporary Protected Status, and Catholic Social Teaching, 96 University of Detroit Mercy Law Review 25-53 (2018).

DC Circuit: House Can Exclude Secular Invocations

In Barker v. Conroy, (D Cir., April 19, 2019), the U.S. Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the rule in the House of Representatives that limits invocations to those that are "religious" rather than secular.  At issue was the refusal by the House Chaplain's Office to allow a former Christian who had become an atheist to serve as guest chaplain and deliver a secular invocation.  The court found plaintiff had standing to bring the suit, but, citing Supreme Court precedent, held:

Marsh and Town of Greece leave no doubt that the Supreme Court understands our nation’s longstanding legislative-prayer tradition as one that, because of its “unique history,” can be both religious and consistent with the Establishment Clause. Marsh, 463 U.S. at 791. And although the Court has warned against discriminating among religions or tolerating a pattern of prayers that proselytize or disparage certain faiths or beliefs, it has never suggested that legislatures must allow secular as well as religious prayer. In the sui generis context of legislative prayer, then, the House does not violate the Establishment Clause by limiting its opening prayer to religious prayer.

Roll Call reports on the decision. [Thanks to Jeff Pasek for the lead.]

White House Announces Annual Easter Egg Roll

The White House today announced this year's Easter Egg Festivities, which will be held next Monday.  The press release, supplementing information elsewhere on the White House website, says in part:

First Lady Melania Trump and President Donald J. Trump invite this year’s Easter Egg Roll attendees to enjoy a variety of activities, including the time-honored Egg Roll and the Trump Administration’s Cards for Troops station.  New to the Egg Roll this year: musical eggs and Be Best hopscotch.  In recognition of the First Lady’s Be Best campaign, children will also have the opportunity to spread kindness by mailing postcards to anyone they choose – friends, family, members of the military – directly through a United States Postal Service mailbox that will be on the South grounds.

Pro-Life Pregnancy Center Challenges City's Required Disclosures

Suit was filed in a Connecticut federal district court yesterday challenging the constitutionality of a Hartford (CT) Ordinance that requires pregnancy resource centers to make required disclosures on signs, websites and when patients make appointments.  Facilities must make the disclosures if they do not have licensed medical providers on the premises to directly supervise all services.  The complaint (full text) in Caring Families Pregnancy Services, Inc. v. City of Hartford, (D CT. filed 4/18/2019), alleges that the Ordinance is drafted to cover only pro-life pregnancy resource centers, and requires statements that incorrectly imply that the facilities are not qualified to provide the services they offer. The complaint contends:

The practical result of enforcing the Ordinance’s Compelled Speech provision would be not only to inhibit a religious ministry from furthering its mission and message but also to force religious speakers to speak messages with misleading, confusing and negative implications....

Hartford is intent on interfering with certain views about life, pregnancy, and motherhood. Hartford has thus crafted a speaker-based, viewpoint-based law targeting the speech only of speakers espousing certain pro-life moral, religious, and philosophical beliefs.

ADF issued a press release announcing the filing of the lawsuit.

Emergency Order Requiring Measels Vaccination Upheld

In C.F. v. New York City Department of Health, (Kings Cty. Sup. Ct., April 18, 2019), a New York state trial court judge rejected challenges to the recent emergency order by the New York City Health Department requiring everyone living or working in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt. The court said in part:

The pivotal question posed for this court's determination is whether Respondent Commissioner has a rational, non-pretextual basis for declaring a public health emergency.... The unvamished truth is that these diagnoses represent the most significant spike in incidences of measles in the United States in many years and that the Williamsburg section of Brooklyn is at its epicenter....

The religious objection exemption contained in Public Health Law $2 164(a) applies only to the certificate of immunization required to admit a child to school, not to remedies attendant upon declaration of a public health emergency....

Petitioner raise the issue of informed consent.... A fireman need not obtain the informed consent of the owner before extinguishing a house fire. Vaccination is known to extinguish the fire of contagion.

Enforcement of Mahr Provision In Islamic Marriage Contract Upheld

In Seifeddine v. Jaber, (MI App., April 16, 2019), a Michigan state appellate court rejected a challenge to a trial court's enforcement in a divorce action of the mahr provisions of an Islamic marriage certificate. The provision required the husband to pay $50,000 to his wife. According to the court:

[T]he trial court expressly and repeatedly stated that it was not applying religious principles or doctrines but was instead applying Michigan common law regarding contracts.... Plaintiff makes no argument challenging any particular element for establishing the existence of a contract. Nor does plaintiff cite any authority for his contention that a neutral principle of law must be derived from a statute rather than from Michigan common law when examining a religious document.

NY Guidelines For Yeshiva Educational Requirements Are Struck Down

Yesterday a New York state trial court judge struck down the state's controversial Guidelines adopted last year aimed at  assuring that yeshivas, as well as other non-public religious and independent schools, comply with state law requiring them to offer an education substantially equivalent to that of public schools. (See prior related posting.) In Parents for Educational and Religious Liberty in Schools v. Rosa, (Albany Cty. Sup. Ct., April 17, 2019), the court held that the education commissioner did not comply with the notice and comment requirements of the State Administrative Procedure Act in adopting the Guidelines. Gothamist reports on the decision. [Thanks to Steven H. Sholk for the lead.]

8th Circuit Hears Arguments Over Title VII's Applicability To Sexual Orientation

Yesterday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Horton  v.  Midwest Geriatric Management (audio of full oral argument). As reported by the National Law Journal, at issue is whether Title VII's prohibition on discrimination "because of sex" covers discrimination on the basis of sexual orientation. In the case, a health care specialist sued after his offer of employment was rescinded, claiming the rescission came because his employer discovered he was gay.

Rockland County Issues New Orders To Combat Measles Spread

Rockland County, New York health authorities are taking new steps to combat the spread of measles in the county.  As previously reported, on April 5 a New York state trial court judge held that the health department's declaration of a state of emergency was invalid. That decision is being appealed. Yesterday the County announced two new Orders by the Commissioner of Health, relying on different legal authority than the basis of the Order that was struck down.

The first new Order (full text) provides that anyone diagnosed with measles, or exposed to someone diagnosed with measles, must be excluded as a public health nuisance from places of public assembly for up to 21 days. Places of public assembly are defined broadly and include the homes of other persons.

The second new order requires schools in two zip code areas to file a notarized statement identifying unvaccinated students who, as required, have been excluded from school. Orangetown Daily Voice reports on these developments.

Morocco Names Chief Rabbinical Court Master, Ending 100 Years of Vacancies In the Post

Arutz Sheva reports that the government of Morocco, on behalf of the country's King Mohammed VI, has appointed Rabbi Yoshiahu Pinto to the post of Supreme Chief Rabbinical Court Master. The post has been vacant for last 100 years. In his position, Pinto will head the Moroccan Jewish community's kosher food supervision and will adjudicate religious and customary issues for the country's 10,000 Jewish residents, as well as for the many Jewish visitors to the country.

DOJ Settles RLUIPA Zoning Claims With Texas City

The Department of Justice announced yesterday that it has reached an agreement with the City of Farmersville, Texas to resolve allegations that the city violated RLUIPA when in 2017 it denied a Muslim organization approval for construction of a cemetery:

The settlement agreement resolves a lawsuit the United States filed today in the U.S. District Court for the Eastern District of Texas. After the City denied the Islamic Association’s application to build a religious cemetery, the United States opened an investigation of the City’s actions in September 2017. In August 2018, the United States notified the City that it had concluded that the City had violated RLUIPA and intended to file suit, and offered the City an opportunity to negotiate a resolution. In September 2018, the City and the Islamic Association entered into a separate agreement allowing for the approval of the cemetery and in December 2018, the City approved the Islamic Association’s application to develop the land as a cemetery.

Here is the complaint in United States v. City of Farmersville, Texas, (ED TX, filed 4/16/2019) filed yesterday as part of the negotiations.

Parents Sue Prominent DC Synagogue Over Child Abuse of Pre-Schoolers

Washington Post reports on a lawsuit filed Monday in D.C. Superior Court against a prominent Reform synagogue in D.C. Parents who brought the suit allege that at least seven children in the synagogue's preschool were sexually abused by a teacher for more than a year. The 239-page complaint filed against Washington Hebrew Congregation and Deborah Jensen, its director of early childhood education, does not include the teacher who is the alleged abuser as a defendant.  According to the Post:

The lawsuit states that the preschool teacher identified in the complaint was allowed to be alone with students despite city regulations requiring at least two adults to be present with toddlers in licensed child development centers. The school also did not properly train staff on ways to reduce the potential for child sexual abuse and to recognize signs that it may have happened, the lawsuit alleges....

Within a month of the man beginning work at Washington Hebrew, teachers and parents reported to Jensen incidents of inappropriate behavior, according to the lawsuit. The alleged behavior included being late returning students when he was alone with them and not responding to co-workers who were looking for him while he was with students.

The lawsuit states that when an adult reported potential abuse to Jensen, the director said that the person reporting the potential abuse had a “sick mind” and that the teacher would never abuse children. Jensen did not investigate the incidents further, did not restrict the teacher’s access to children and did not report the allegations to city officials, according to the lawsuit.

How Did Government Action On Gay Marriage Affect Attitudes?

Courthouse News Service reports on interesting research posted yesterday at the Proceedings of the National Academy of Sciences (PNAS):

Researchers compared trends before and after state-level legalization of gay marriage in each state.

The study found the local legislation reduced antigay bias, even though biases against lesbian and gay people were already decreasing. States which legalized same-sex marriage experienced decreases in homophobia at a sharper rate – declining at roughly double the previous rate – after legalization, according to the study.

For the 15 states that didn’t pass laws legalizing same-sex marriage before it became federal law, Hehman and his research team found a “backlash effect” where homophobia increased in those states in the immediate aftermath after the Supreme Court ruling – despite a decreasing trend in anti-gay bias prior to Obergefell.

PNAS, in assessing the significance of the research, says in part that it indicates "government legislation can inform attitudes even on religiously and politically entrenched positions."

New Report On Perceived Discrimination Against Various Groups

Yesterday the Pew Research Center released its 2019 report (full text) on the extent to which the American public perceives that there is discrimination against various discrete groups.  While surveying perceived discrimination against 9 different groups, the report headlines increasing discrimination against Jews:

Today, 64% of Americans say Jews face at least some discrimination – a 20-percentage-point increase from 2016; the share saying Jews face “a lot” of discrimination has nearly doubled, from 13% to 24%.

The report also finds that 82% believe that there is at least some discrimination against Muslims.  50% believe there is at least some discrimination against Evangelical Christians (a rise of 8% over 2016).

Parents Sue Over NY Vaccination Order; One Child Care Facility Ordered Closed

Yesterday five mothers of children who claim religious exemptions from vaccination requirements filed suit in a New York state trial court challenging last week's emergency order by the New York City Health Department requiring everyone living or working in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt. (See prior posting.)  The complaint (full text) in C.F. v. New York City Department of Health and Mental Hygiene, (Kings Cty. Sup. Ct., filed 4/15/2019) contends:

There is insufficient evidence of a measles epidemic or dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination. The Orders are, therefore, arbitrary, capricious, contrary to law and in violation of petitioners’ rights under the United States Constitution and New York State law.

The complaint also contends that the Order ignores the risk of harm from compulsory vaccination.  Courthouse News Service reports on the lawsuit.

Meanwhile yesterday New York officials ordered a child care center in Williamsburg closed for failing to provide the Health Department access to medical and attendance records showing that the school is excluding unvaccinated children. (New York Times; Yeshiva World News).

SCOTUS Hears Arguments On Immoral Trademarks

Yesterday the U.S. Supreme Court heard oral arguments in Iancu v. Brunetti (transcript of oral arguments). At issue is whether Sec. 2(a) of the Lanham Trademark Act that prohibits registration of a trademark that contains "immoral" matter is invalid under the free speech provisions of the 1st Amendment.  Here is the SCOTUSblog case page for the case linking to all the briefs and other pertinent material. Mark Walsh at SCOTUSblog describes the case as an introduction to his entertaining summary of oral arguments:

The first case for argument today involves the highly provocative trademark, “FUCT,” for a line of “streetwear” founded by Erik Brunetti in California in 1990.

Washington Post also reports on the oral arguments.

Catholic Agency Sues Michigan Over Adoption Agency Non-Discrimination Policy

As previously reported, last month Michigan Attorney General Dana Nessel announced that the state has entered into a settlement agreement 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 the state that discriminates against same-sex couples or LGBTQ individuals otherwise qualified as foster care or adoptive parents.  Yesterday suit was filed in a Michigan federal district court by a Catholic adoption and foster care agency, and by some of its clients, challenging Michigan's new policy.  The complaint (full text) in Buck v. Gordon, (WD MI, filed 4/15/2019), contends that the new policy violates plaintiffs' 1st and 14th Amendment rights as well as RFRA. The Federalist reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Christian Legislative Prayers and Christian Nationalism, (Washington and Lee Law Review, Vol. 75, 2019).
• Christopher C. Lund, Martyrdom and Religious Freedom, (Connecticut Law Review, Vol. 50, p. 959, 2018 (symposium)).
• Levi Cooper, Polish Hasidism and Hungarian Orthodoxy in a Borderland: The Munkács Rabbinate, (Polin: Studies in Polish Jewry 31 (2019): 199-223 [pre-publication version]).
• Brendan Thomas Beery, Free Exercise Standing: Extra-Centrality As Injury In Fact, (St. John's Law Review, Forthcoming).
• Doug Magendanz, Church Power, Sovereignty and Freedom of Religion in Thomas Hobbes, (March 19, 2019).
• G. V. Mahesh Nath, Constitutional Morality - A Need for Consensus on the Concept, (March 16, 2019).
• Barton Beebe & Jeanne C. Fromer, Immoral or Scandalous Marks: An Empirical Analysis, (April 4, 2019).

From SmartCILP:

• Ann E. Blankenship-Knox & Brett A. Geier, Taking A Day Off to Pray: Closing Schools for Religious Observance in Increasingly Diverse Schools, 2018 BYU Education & Law Journal 89-139.
• Religious Exemptions and Harm to Others. Articles by Gary J. Simson, Carl H. Esbeck, Eric Segall, Arnold H. Loewy, Elizabeth Sepper, Christopher C. Lund, William P. Marshall, Kathleen A. Brady, Catherine A. Hardee, Micah Schwartzman, Nelson Tebbe, Richard Schragger. 106 Kentucky Law Journal 535-812 (2017-2018).
• John Eidsmoe, Those Ten Commandments: Why Won't They Just Go Away?, 31 Regent University Law Review 11-29 (2018-2019).
• Rodney W. Harrell, State Religious Free-Exercise Defenses to Non-Discriminatory Laws: Still Relevant fter Masterpiece Cakeshop, 87 UMKC Law Review 297-333 (2019).
• Stephen M. Feldman, Having Your Cake and Eating It Too? Religious Freedom and LGBTQ Rights, 9 Wake Forest Journal of Law & Policy 35-62 (2018).

Transgender Bathroom Issue In High School Leads To Protest and Reaction

The ongoing issue in public schools of allowing transgender students to use bathrooms of their choice has now created issues of how to treat student protests, self-help, and reactions to them. AP reports that a group of some seven boys at Alaska's North Pole High School went into the girl's bathroom to protest the use of the boys' bathroom by a transgender student who is transitioning from female to male.  A girl who was blocked from leaving the girl's bathroom kneed one of the seven boys, injuring him enough that he was sent to a hospital.  The girl was suspended from school and the seven boys were also disciplined.

DOJ Drops Appeal In FGM Case; Proposes Amendments To Federal Statutory Ban

AP reports that the Department of Justice has dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, saying it is not a commercial activity; it is a local criminal activity which should be left to the states to regulate. (See prior posting.) In a letter (full text) sent to Congress last Wednesday, Solicitor General Noel Francisco proposed amendments to the the federal law needed to assure its constitutionality:

[C]oncurrently with submitting this letter, the Department is submitting to Congress a legislative proposal that would amend Section 116(a) to provide that FGM is a federal crime when ( 1) the defendant or victim travels in or uses a channel or instrumentality of interstate or foreign commerce in furtherance of the FGM; (2) the defendant uses a means, channel, facility, or instrumentality of interstate commerce in connection with the FGM; (3) a payment is made in or affecting interstate or foreign commerce in furtherance of the FGM; (4) an offer or other communication is made in or affecting interstate or foreign commerce in furtherance of the FGM; (5) the conduct occurs within the United States' special maritime and territorial jurisdiction, or within the District of Columbia or a U.S. territory; or (6) the FGM otherwise occurs in or affects interstate or foreign commerce. In our view, adding these provisions would ensure that, in every prosecution under the statute, there is a nexus to interstate commerce.

The letter to the Senate Judiciary Committee was sent in compliance with 28 USC Sec. 530D which requires DOJ to report to Congress when it, among other things, decides not to appeal a decision affecting the constitutionality of a federal statute.

Retired Pope Benedict Weighs In On Clergy Sexual Abuse of Minors

This week, publications around the world published translations of an unusual essay from emeritus Pope Benedict XVI on the Church's clergy sex abuse crisis.  As reported by the Washington Post:

Breaking years of silence on major church affairs, Pope Emeritus Benedict XVI has written a lengthy letter devoted to clerical sex abuse in which he attributes the crisis to a breakdown of church and societal moral teaching and says he felt compelled to assist “in this difficult hour.”

The 6,000-word letter..., laments the secularization of the West, decries the 1960s sexual revolution and describes seminaries that became filled during that period with “homosexual cliques.”

The pope emeritus, in emphasizing the retreat of religious belief and firm church teaching, provides a markedly different explanation for the abuse crisis than that offered by Pope Francis, who has often said abuse results from the corrupted power of clergy.

Catholic News Agency has published the full text in English.

New York Legislature Passes Bill To Bar Employment Discrimination Based On Religious Attire

The New York State Legislature on Tuesday gave final passage to A4024 (full text) which adds to the state's anti-discrimination law a specific ban on employment discrimination because of a person's attire, clothing, or facial hair worn in accordance  with  the requirements  of  his  or her religion. The employer is excused from this obligation if reasonable accommodation is impossible. AP, reporting on the passage of the bill, says it was particularly supported by a coalition of Sikh houses of worship. [Thanks to Blog from the Capital or the lead.]

UPDATE: New York Gov. Andrew Cuomo signed the bill on Aug. 9.

EEOC 2018 Data Released

The EEOC yesterday released its 2018 Fiscal Year 2018 Enforcement and Litigation Data.  During the fiscal year, he EEOC resolved 90,558 charges of discrimination and retaliation. Of these, 2,859 (3.7%) involved charges of religious discrimination.

Judge Overrules Jury Saying No Religious Discrimination By Homeowners Association Was Shown

In Morris v. West Hayden Estates First Addition Homeowners Association, Inc., (D ID, April 4, 2019), an Idaho federal district judge enjoined a Christian couple from hosting an elaborate Christmas display that violates Homeowner Association Rules. As described by the Spokane Spokesman-Review's report on the decision:

On one side, a devoutly Christian couple throwing extravagant celebrations for thousands at a home decked to the halls with 200,000 light bulbs. At times, even featuring a camel and donkey to re-create the Nativity scene.

On the opposite side, a Hayden homeowners association with specific rules that prohibited such excessive celebrations – and the noise that follows – in favor of a more modest showing of holiday spirit.

Despite a jury verdict in favor of plaintiffs, the court ruled as a matter of law that plaintiffs had not shown that the Homeowners Association discriminated against them on the basis of religion in violation of the Federal Fair Housing Act.  Plaintiff had pointed to a letter from the Homeowners Association which described rule violations that would be involved in the Christmas display.  The letter added that some of the subdivision residents are non-Christians.  The court said in part:

While January 2015 Letter was not drafted with lawyerly precision and contained a boorish reference to “undesireables,” it cannot be read as evidence that the Homeowners Association intended to discriminate against Plaintiffs because they were Christian. On this score, the Court notes that several members of the Board were practicing Christians. Furthermore, Board President Jennifer Scott is both a practicing Christian and married to a Christian minister. The Court is not suggesting that Christians cannot, per se, discriminate against other Christians. But, the fact that the Board was at least partially composed of practicing Christians significantly decreases the probability that the Board intended to discriminate against Plaintiffs based on a faith shared by both Plaintiffs and several Board members.

The court concluded that the jury was likely prejudiced by testimony which they were instructed to ignore relating to threats received by plaintiffs from other homeowners who were not Association board members.  Because the decision is likely to be appealed, the court held that if its conclusion of law was reversed, defendants should be granted a new trial or alternatively the jury's award of $75,000 in damages should be reduced to $4.

Anti-Vax Movement Targets Ultra Orthodox Jews In New York

The New York Times in an article posted yesterday reports on the ways in which the anti-vaccination movement, particularly an organization known as Parents Educating and Advocating for Children's Health ("Peach"), is targeting ultra-Orthodox Jews in New York:

Peach’s handbook — with letters signed by rabbis and sections like “Halachic Points of Interest” — has become one of the main vehicles for misinformation among ultra-Orthodox groups, including Hasidim. Its message is being shared on hotlines and in group text messages.....

The majority of ultra-Orthodox rabbis said they ... urged vaccination, citing religious scripture about protecting one’s health and the health of others.

But all of that has not been enough to persuade vaccine skeptics....

Some Hasidim have said that longstanding tension between members of the ultra-Orthodox community and the government have made them wary of officials’ efforts to contain the outbreak.

The past persecution of the Jewish people is still a factor, they said. And more recently, quarrels with secular leaders over a circumcision ritual that has transmitted fatal herpes infections to infants and the government’s oversight of ultra-Orthodox Jewish private schools known as yeshivas have only soured relations.

In Settlement Airbnb Agrees To Allow Listing of West Bank Properties

In a press release yesterday, an Israeli civil rights group announced a settlement in  Sliber v. Airbnb, one of a number of suits challenging Airbnb's decision to delist rentals in Israeli settlements in the West Bank. (See prior posting). Apparently the policy was neverin fact implemented.  Under the Settlement Agreement (full text) Airbnb will modify it policies to allow listings of all properties in the area, subject to its Terms of Service.  Sidestepping conflicting claims over claims to the West Bank, the Settlement Agreement says in part:

Airbnb takes on position on the Host-Plaintiffs' claims, or others claims, to legal title to the properties on which the accommodations are located and its standard Terms of Service requires that every Host agree and warrant not to offer any accommodation on Airbnb's platform that the Host does not own or have permission to make available for booking.

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.