Recent Articles of Interest

From SSRN:

• Stephanie H. Barclay, First Amendment Categories of Harm, (95 Indiana Law Journal (2020 Forthcoming)).
• Paul Horwitz, A Close Reading of Barnette, in Honor of Vincent Blasi, (13 FIU L. Rev. 689 (2019)).
• Joel Harrison, Towards Re-Thinking ‘Balancing’ in the Courts and the Legislature’s Role in Protecting Religious Liberty, (Forthcoming, (2019) Australian Law Journal (93)(9) ).
• Puranjay K. Vedi, Introduction to Secularism, (February 1, 2019).
• Emima Alistar (Hîrlav), The Relation Between Law and Morality (April 25, 2019).
• Mayo Moran, Cardinal Sins: How the Catholic Church Sexual Abuse Crisis Changed Private Law, (Forthcoming in the Georgetown Journal of Gender and the Law, XXI (2019)).
• Cameron Pontiff, Liberty and Justice, The Privilege of Straight Men: An Analysis of Louisiana's Surrogacy and Filiation Laws as They Relate to Same-Sex Couples, (The Journal of Race, Gender and Poverty (2019)).
• Avidan Cover, Quieting the Court: Lessons from The Muslim-Ban Case, (Journal of Gender, Race and Justice, Vol. 23, 2019, Forthcoming).
• Eric Merriam, Fire, Aim, Ready! Militarizing Animus: 'Unit Cohesion' and the Transgender Ban, Dickinson Law Review, Vol. 123:57 (2018).

From SSRN (Sharia law):

• Ismail Y. Syed, Interest in Sharia: Legal Consequences and Penal Aspects in Sharia, (April 13, 2018).
• Titus Corlatean, The Incompatibility of the Sharia Law and the Cairo Declaration on Human Rights in Islam with the European Convention on Human Rights, (April 25, 2019).
• Mohamad Soleh Nurzaman & Fika Khanifa Kurniaeny, Achieving Sustainable Impact of Zakāh in Community Development Programs, (Islamic Economic Studies, Vol. 26, No. 2, 2019).

From SmartCILP:

• Philippa Watson & Peter Oliver, Is the Court of Justice of the European Union Finding Its Religion?, 42 Fordham International Law Journal 847-873 (2019).
• Richard A. Dean, Trump v. Hawaii Is Korematsu All Over Again, 29 George Mason University Civil Rights Law Journal 175-189 (2019).

Christian Wedding Services Owner Loses Challenge To Colorado's Public Accommodation Law

303 Creative LLC v. Elenis, (D CO, May 17, 2019), is another in the growing line of cases in which Christian wedding service providers refuse on religious grounds to make their services available for same sex weddings.  Here plaintiff Lorie Smith wanted to expand her business to design custom websites for couples planning weddings. However she would not provide her services for same-sex weddings.  In the case, a Colorado federal district court rejected a constitutional challenge to the application of the "communications clause" of Colorado's public accommodation law to Lorie Smith's business.  That law prohibits publication of any notice or advertisement indicating that services will be withheld on the basis of, among other things, sexual orientation. The court rejected both 1st and 14th Amendment claims.

In their equal protection challenge, plaintiffs argued that the Colorado Civil Rights Commission has applied the law only where business owners disfavor same sex marriages, but not to refusals to produce products with pro-religious messages. The court concluded however that businesses in the other cases were not similarly situated to plaintiff's business.

In rejecting plaintiffs' free speech challenge, the court emphasized that only the clause in the law barring communication of an intent to discriminate was at issue.  The court assumed, for purposes of its decision, that the law's "accommodation clause" which is a substantive ban on discrimination is constitutional. This led it to conclude that under Supreme Court precedent:

the government’s ability to regulate unlawful economic activity allows it to prohibit advertisements of this type, even if it must do so by defining the prohibited message based on its content.

The court rejected plaintiffs' Free Exercise challenge, finding that the communications clause is a neutral of general applicability.

Alito Weighs In Late On Buddhist Inmate's Request For His Spiritual Adviser At His Execution

As previously reported, late on March 28, the U.S. Supreme Court In Murphy v. Collier ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution was carried out. At that time it was indicated that Justices Thomas and Gorsuch voted against granting the stay. This week, on May 13, Justice Alito filed an opinion (full text) dissenting from the grant of the stay. Justices Thomas and Gorsuch joined the opinion.

In the present case, Murphy cannot overcome the presumption against last-minute applications. As I will explain, see Part III, infra, his religious liberty claims are dependent on the resolution of fact-intensive questions that simply cannot be decided without adequate proceedings and findings at the trial level. Those questions cannot be properly resolved in a matter of hours on a woefully deficient record. But that is precisely what Murphy asked of the lower courts and this Court.

Justice Alito did not explain why he was not listed originally as dissenting from the grant of the stay of execution. He merely said in this week's opinion:

I did not agree with the decision of the Court when it was made. Because inexcusably late stay applications present a recurring and important problem and because religious liberty claims like Murphy’s may come before the Court in future cases, I write now to explain why, in my judgment, the Court’s decision in this case was seriously wrong. 

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, responded to Justice Alito, saying in part:

Put simply, this Court’s stay facilitated the prompt resolution of a significant religious equality problem with the State’s execution protocol and should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the State’s prior discriminatory policy.

Battle For Control Over Christian Broadcasting and Relief Organization

An Indiana federal district court last week allowed plaintiffs to move ahead with most of their claims in a lawsuit between two cousins in their battle to control of LeSEA, described by the court as:

a Christian non-profit organization based in South Bend, Indiana and with wide-ranging operations. LeSEA was founded by Dr. Lester Frank Sumrall (grandfather of defendant Lester Sumrall) in 1957 and has grown to operate churches, bookstores, a Bible college, a large food and disaster relief operation, as well as a series of television and radio broadcast networks focused on religious programming.

In  LeSEA Inc. v. LeSEA Broadcasting Corp., (ND IN, May 10, 2019), the court described the legal issues involved:

The gist of the case involves allegations of a wide ranging attempt to steal trademarks and other intellectual property as well as a host of alleged state law violations sounding mostly in conversion and other intentional torts.

The Indiana Lawyer, reporting on the decision, said in part:

Two “warring cousins” who each claim to be the rightful heir to the South Bend-based LeSEA Christian broadcasting network will continue to slug it out after a federal judge largely denied one cousin’s motion to dismiss.

6th Circuit Orders New Trial Because of Prosecutors' References To Religion

In United States v. Acosta, (6th Cir., May 15, 2019), the U.S. 6th Circuit Court of Appeals granted a new trial to two defendants who had been convicted of drug violations. The vacating of defendants' convictions stemmed in large part from the prosecutor's comments at trial regarding the religious practices of one of the defendants. The prosecutor questioned the defendant about a shrine to Jesus Malverde found in his home. Malverde is a folk saint of drug traffickers. Then, in closing, the prosecutor said to the jury:

Another shocking thing yesterday was the defendant, Mr. Morales’ [sic] testimony. Thou shall not have any Gods before me. I’ve never ever seen a defendant admit to worshiping Malverde. I’m not going to call it a saint, I’m going to use the word and call it a deity. He worships a deity . . . . He prayed for protection from police. He prays that he doesn’t get caught.

... I wonder how many prayers he has said to Malverde before he walked into the courtroom yesterday. I wonder if what’s going through his mind this morning was, I’m going to say another prayer for protection from the jurors of Central Kentucky....

Luis Morales [sic], the worshiper of a deity of a drug trafficking entity who prays for protection from police, prosecutors, court systems and juries. Is he entitled to any credibility for what he said? No, not at all.

Louisville Courier-Journal reports on the decision.

VA Will Remove Unauthorized Religious Additions To Medical Center Display

As previously reported, earlier this month a suit was filed in New Hampshire federal district court against a VA Medical Center challenging a lobby "Missing Man" display that includes a Bible that was carried by a prisoner of war in World War II.  Yesterday, according to the New Hampshire Union Leader, a patient at the VA Center added items representing different religious traditions to the display--  books from the Jewish, Muslim, Mormon and Wiccan faiths, and a blank tablet to represent non-faith traditions. The VA is not happy about the additions. A spokesman said:

We will not tolerate interference with and/or alteration of approved displays — such as this Northeast POW/MIA Network-sponsored POW/MIA table — and as a result these items will be removed.

Court Rejects Christian Adoption Agency's Challenge To Anti-Discrimination Regulation

In New Hope Family Services v. Poole, (ND NY, May 16, 2019), a New York federal district court rejected a constitutional challenge by a Christian adoption agency to New York's anti-discrimination provisions. Regulations of New York's Office of Children & Family Services prohibit adoption agencies from discriminating, among other things, on the basis of sexual orientation, gender identity or marital status. New Hope Family Services will not place children with same-sex couples or with unmarried couples. Inquiries from such couples are referred to other agencies. The court rejected New Hope's contention that the regulation violates its free exercise rights because it was adopted to target faith-based agencies.  Instead, the court found that the regulation "is facially neutral and generally applicable, and that it has been neutrally and generally applied in this case...." The court also rejected New Hope's free speech and equal protection challenges to New York's regulation. In a press release, ADF said that the decision is likely to be appealed.

Ontario Court Upholds Requirement That Objecting Doctors Refer Patients to Others

In Christian Medical and Dental Society of Canada v. College of Physicians and Surgeons of Ontario, (Ont. Ct. App., May 15, 2019), the Ontario Court of Appeal rejected a constitutional challenge to two policies of the College of Physicians and Surgeons of Ontario.  At issue is the requirement that physicians who object to providing any medical procedure or pharmaceuticals on the basis of religion or conscience must refer the patient to a non-objecting, available and accessible physician, health care professional or agency.  Physicians challenging the policies claimed they infringe their freedom of conscience and religion under Sec. 2(a) of the Canadian Charter of Rights and Freedoms by requiring them to be complicit in procedures such as abortion or aid in dying that violate their religious beliefs. In a 74-page opinion, the court held while the policies infringe religious liberty, the infringement is justified under Sec. 1 of the Charter, because they are reasonable limits, demonstrably justified in a free and democratic society. The Globe & Mail reports on the decision.

Burdensome Water Rates On Churches Challenged In Lawsuit

A suit was filed in a Texas state trial court this week challenging a Magnolia, Texas ordinance imposing disproportionately higher water rates on non-profit institutions, including churches. The higher rates were intended to make up for the city's inability under state law to collect property taxes from non-profit institutions. The complaint (full text) in Magnolia Bible Church v. City of Magnolia, (Montgomery Cty. Dist. Ct., filed 5/14/2019), contends that the city's actions violate state law, including the Texas Religious Freedom Restoration Act:

The Institutional Water Rate is void for three independent reasons. First, the Institutional Water Rate is a thinly veiled property tax on a tax-exempt entity, and, as such, it is preempted by state law. Second, even were the Institutional Water Rate not a tax, it would nonetheless be void as a discriminatory, arbitrary utility rate. Finally, by nearly tripling the Churches’ water bills (a substantial burden on free exercise of religion) simply because the Churches do not pay property taxes (an irrational, non-tailored justification), the Institutional Water Rate violates the TRFRA.

First Liberty issued a press release announcing the filing of the lawsuit.

Cert. Filed In Challenge To School's Curriculum On the Muslim World

A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in Wood v. Arnold, (cert. filed 5/13/2019).  In the case, the U.S. 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and compelled speech challenges to a classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide which included the statement that most Muslims' faith is stronger than that of the average Christian.  The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada. (See prior posting). Thomas More Law Center issued a press release announcing the filing of the petition for review.

Alabama Passes Restrictive Abortion Law; Other States Have Also

The Alabama legislature yesterday gave final passage to House Bill 314 (full text), which criminalizes the performance of abortions at any stage of pregnancy, except in cases of serious health risk to the mother, ectopic pregnancy or lethal anomaly in the unborn child. As reported by CNN, attempts to also include exceptions for rape or incest failed.  The Guardian today has an analysis of the growing number of states that are enacting, or attempting to enact, abortion restrictions that go beyond those permitted under current Supreme Court precedent, saying in part:

Anti-abortion campaigners have successfully enacted a ban on all or most abortions in seven Republican-led states: Alabama, Arkansas, Kentucky, Mississippi, North Dakota, Ohio and Georgia.

Alabama’s law, which must be signed by the Republican governor, is the most severe.

At least 61 bills like this have been introduced across the country, in states including Louisiana, Missouri, South Carolina, Tennessee, Maryland, Minnesota, Texas and West Virginia. Even in states considered safe havens for abortion rights, such as New York and Illinois, anti-abortion lawmakers have introduced bills as a kind of protest.

The wave of restrictions is due primarily to the Trump administration’s judicial picks. Anti-abortion campaigners believe the chances of further restricting abortion through court cases are better today than they were a year ago....

Generally, the anti-abortion elements are made up of social conservatives. The Christian right has fought against abortion rights for decades, but some of its most extreme proposals have only recently started to pick up steam. The Christian right is also one of the Trump administration’s most fervent bases of political support.

New Jersey Governor Signs Statute of Limitations Extension For Sex Abuse Claims

New Jersey Gov. Phil Murphy on Monday signed S. 477 (full text) (Governor's signing statement) (press release). The new law extends the statute of limitations for suits for sex abuse of claims by minors and adults. The accompanying statement of the Senate Judiciary Committee explains the new law's complex provisions in detail.  It summarizes the changes as follows:

This substitute bill would extend the statute of limitations in civil actions for sexual abuse claims, as well as create a two-year window for parties to bring previously time-barred actions based on sexual abuse. The bill would also expand the categories of potential defendants in civil actions, and for some actions permit retroactive application of standards of liability to past acts of abuse for which liability did not previously exist.

Abuse Survivors Sue Vatican

Five survivors of clergy sexual abuse filed a lawsuit yesterday in a Minnesota federal district court against the Vatican, seeking damages as well as release of the names of priests accused of child molestation and documents and information relating to the charges. The 77-page complaint (full text) in Keenan v. Holy See, (D MN, filed 5/14/2019) alleges various state causes of action as well as a claim of violation of international human rights law. AP reports on the lawsuit. A video of the press conference held by plaintiffs' lawyers to announce the filing of the lawsuit is also available online.

Court Rejects RFRA Claims By Former Street Gang Members

In People v. Latin Kings Street Gang, 2019 Ill. App. Unpub. LEXIS 852 (IL App., May 13, 2019), an Illinois appellate court rejected claims by former street gang members that the state violated Illinois Religious Freedom Restoration Act by bringing a frivolous lawsuit against them under the Illinois Streetgang Terrorism Omnibus Prevention Act .

The state sought to obtain damages from 79 individuals and enjoin them from further gang activity including meeting with members of the Latin Kings. Defendants contended that they had left the Latin Kings and become born-again Christians who met with current gang members in order to share the Christian Gospel with them.  They contend that after the suit was filed, they could no longer go into schools to speak with students about the danger of gangs, nor were they able to preach the Gospel to gang members out of fear of being arrested. The court concluded, however:

... [T]he lawsuit here did not constitute a substantial burden on defendants' religious exercise.... [D]efendants were still able to communicate their faith to Latin Kings gang members after the complaint was filed in this case. Oscar testified that he was not prevented from communicating his faith to Latin Kings in a different county or city. There were times when he wanted to reach out to gang members through Facebook to get together so he could share his faith with them, but felt that he could not do so because of the lawsuit. However, he conceded that no one told him that he could not do so and that he merely considered it an inconvenience. Elias testified how he communicated with gang members via text messages.... He did not state that the lawsuit prevented from engaging in such communication, and the record does not reflect that police were monitoring defendants' cell phones such that they would have discovered, and used against them, such evidence. Further, Ruben testified that he held Bible studies in his home and spoke about his faith at other churches.

Settlement Reached In Student Group's Challenge To Denial of Registered Status

A Settlement Agreement (full text) has been reached in Ratio Christi at the University of Colorado, Colorado Springs v. Sharkey, according to a press release today from ADF.  The  Christian group, Ratio Christi sued last year in a Colorado federal district court challenging the University of Colorado's denial to it of registered status. The University objected to the group's policies requiring its officers to personally hold Christian beliefs, and requiring prospective members to agree with and promote the organization's purposes. (See prior posting.)  Under the Settlement Agreement, the University will change its non-discrimination policy to provide:

All student clubs are permitted to require their leadership to promote the purposes of the club, to ascribe to sincerely held beliefs of the club, and/or to act in accordance with club standards.

However student clubs will not be permitted to limit membership on the basis of  "race, color, national origin, sex, pregnancy, age, disability, creed, political affiliation or philosophy, religion, sexual orientation, gender identity, gender expression, or veteran status." Ratio Christi will change its constitution to provide:

Students are not required to profess faith in, endorse, or adopt any religious beliefs to become members of the Chapter or participate in its activities. Any efforts to undermine or subvert the purposes enumerated in Article II will be addressed by the Chapter Officers in consultation with the Faculty Advisor and/or Chapter Director.

The University will also make a settlement payment to Ratio Christi of $20,574.

Town Says It Will Keep Crosses On Courthouse

LifeSite News reported yesterday on the latest controversy over crosses on pubic property.  Freedom From Religion Foundation has complained to authorities over the four crosses on the courthouse in the small town of Coldspring, Texas. Last week, the County Commissioners Court voted unanimously to keep the crosses after a three-hour public comment period attended two-thirds of the town's 900 population. Now officials are illuminating the crosses at night to support the decision.

Cert. Denied In Christian School Zoning Case

The U.S. Supreme Court today denied review in Tree of Life Christian Schools v. Upper Arlington, Ohio, (Docket No. 18-944, certiorari denied 5/13/2019). (Order List.)  In the case, the 6th Circuit in a 2-1 decision held that a private Christian school had failed to establish a prima facie case under the "equal terms" provision of the Religious Land Use and Institutionalized Persons Act.  At issue was a  zoning prohibition on the operation of schools-- both secular and religious-- in the area zoned as an office and research center district. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Matthew Brown, Masterpiece Cakeshop: A Formula for Legislative Accommodations of Religion, (Akron Law Review, Forthcoming).
• Rory D. Bahadur, Newsworthiness as an Internet-Era Mitigant of Implicit Bias, (University of Missouri-Kansas City Law Review, Vol. 88, No. _, 2019, Forthcoming).
• Nadia N. Sawicki, The Conscience Defense to Malpractice, (California Law Review, 2020 Forthcoming).
• Elizabeth A. Brown, Inara Scott & Eric D. Yordy, R Corps: When Should Corporate Values Receive Religious Protection? , (Berkeley Business Law Journal, Forthcoming).
• Ryan T. Anderson, Challenges to True Fairness for All: How SOGI Laws Are Unlike Civil Liberties and Other Nondiscrimination Laws and How to Craft Better Policy and Get Nondiscrimination Laws Right, (Religious Freedom, LGBT Rights, and The Prospects for Common Ground (William Eskridge, Jr. and Robin Fretwell Wilson eds., Cambridge University Press, 2019).
• Paul Horwitz, Honor, Oath, and Office, (Capstone Lawyer (2019)).

From SSRN (non-U.S. law):

• M. Mohsin Alam Bhat, 'Muslim Caste' Under Indian Law: Between Uniformity, Autonomy and Equality, (Quaderni Di Diritto E Politica Ecclesiastica 20. Speciale (2017): 165-190).
• Jeroen Temperman, Education and Freedom of Religion or Belief under the European Convention on Human Rights and Protocol No. 1, (Jeroen Temperman, Jeremy Gunn, Malcolm Evans (eds.), The European Court of Human Rights and the Freedom of Religion or Belief: The 25 Years since Kokkinakis (Leiden: Brill, 2019), pp. 178–208).
• Jianlin Chen & Junyu Loveday Liu, Managing Religious Competition in China: Regulating Provisions of Charitable Activities by Religious Organizations, (in Regulating Religion in Asia: Norms, Modes and Challenges 207-230 (Jaclyn L. Neo, Arif A. Jamal, & Daniel P.S. Goh eds., Cambridge University Press 2019)).
• Douglas Castro, The (Un)practical Secularization Process: International Law and Religion as Social Realities, (Brazilian Journal of International Law, v.15, n.33, 2018, p.33-48).

From SmartCILP:

• Carlo A. Pedrioli, Pope Francis, Poverty, and the Third Persona, [Abstract], 21 Journal of Gender Race & Justice 367-393 (2018).
• Maria Bhatti. The Role of Shari'a in International Commercial Arbitration, 36 Wisconsin International Law Journal 46-86 (2018).

Gary Bauer Appointed To Additional Term On USCIRF

Last week, President Trump announced the appointment of Gary L. Bauer for an additional two-year term as a member of the U.S. Commission on International Religious Freedom. Bauer was initially appointed to USCIRF in 2019. He is President of American Values and Washington Director of Christians United for Israel Action Fund.

Transgender Student May Intervene In Suit Between Prof and University

In Meriwether v. Trustees of Shawnee State University, 2019 U.S. Dist. LEXIS 78771 (SD OH, May 9, 2019), an Ohio federal district court allowed a transgender student and an advocacy organization representing LGBTQ students to intervene in a lawsuit brought by a faculty member against the university over the university's enforcement of its non-discrimination policy.  The university disciplined plaintiff, a philosophy professor, for violating its policy that requires faculty to refer to students using pronouns consistent with the student's self-asserted gender identity. Plaintiff sued claiming that:

He is a "professing evangelical Christian" and member of the Presbyterian Church of America with sincerely-held religious beliefs about gender, and he does not believe that an individual's gender can be changed after the moment of conception. Because of his sincerely-held religious beliefs, he objects to communicating what he believes to be "a University-mandated ideological message regarding gender identity" that he does not believe and which "contradicts (and would force him to violate) his sincerely held religious beliefs."

In allowing intervention by the petitioners. the court found that the University will not adequately represent petitioners' interests, saying in part:

Shawnee State argues only that the Non-discrimination Policy challenged by plaintiff is a neutral rule of general applicability that is part of its obligations under Title IX and Title VII, not that the policy protects the rights of Doe and other transgender students.... Doe, the transgender student who filed the discrimination complaint which led to plaintiff's written warning, and SAGA, which represents transgender students like Doe, have an interest in insuring that Shawnee State's policies are construed and applied so as to protect their rights as transgender students. 

Court Properly Applied Neutral Principles In Dealing With Factional Dispute In Church

Nelson v. Brewer, (IL App., May 10, 2019), involved a dispute between two factions of a congregational church over control of the church, identity of its pastor and control of its property. The appellate court upheld the trial court's action under Sec. 112.55 of the Illinois Non-Profit Corporation Act appointing a custodian to secure the church's property and bring the church's corporate governance documents in to compliance with law. The court also, through a series of orders, provided for selection of a 5-person board for the church. The appellate court said in part:

We find the circuit court in this case properly applied the neutral principles of law as it found both parties have an equal right to PTC property and carefully applied section 112.55 of the Act to remediate the church’s corporate governance. The court specifically refused to issue an opinion as to who is the rightful pastor because that question is religious in nature. Instead the court limited its findings to corporate reorganization by examining PTC’s articles of incorporation, bylaws, other corporate governing documents, the land trust, and pertinent state statutes to resolve the matter.

Court Issues Permanent Injunction In RLUIPA Land Use Case

In Roman Catholic Archdiocese of Kansas City v. City of Mission Woods, (D KS, May 10, 2019), a Kansas federal district court issued a permanent injunction requiring the city of Mission Woods to approve the Catholic Archdiocese's land use application to allow it to convert a house next door to St. Rose Church into a meeting house.  In the case, a jury had found that the city violated the equal terms provisions of RLUIPA and awarded damages.  But the jury found for defendants on the Archdiocese's RLUIPA substantial burden and nondiscrimination claims, its First Amendment claims, and its Kansas state law claims. The court here held that, nevertheless, this amounts to success on the merits which supports the grant of an injunction. The court rejected defendant's argument that limited success on the merits is not enough to support an injunction.

Advocacy Group Is Critical of Pope's New Directive On Reporting of Sexual Abuse

As previously reported, yesterday Pope Francis issued an Apostolic Letter titled Vos Estis Lux Mundi setting out new procedures for mandatory reportingof sexual abuse to ecclesiastical authorities. The advocacy group ECA responded yesterday with a Statement (full text) critical of the Pope, saying the Letter "appears to be designed to make no significant or meaningful change in how bishops and the Vatican deal with cases of child sex crimes by priests." The Statement says in part:

First, there will continue to be no mandatory reporting requirements for sex abuse to civil authorities by priests and bishops and no penalties for failing to do so.... [T]he Vatican often claims that mandatory reporting cannot be done in certain countries. If this is the case, the Vatican needs to identify which countries this would entail and why an exemption from reporting is necessary in that country....

Second, the process of reporting, investigating and determining a case remains entirely secret and in-house with the local bishop who will remain in complete control of the investigative process and all the information....

Third, and maybe most significantly, nothing in the document establishes or enacts zero tolerance for sexual abuse by priests....

USCIRF Urges Trump Administration To Raise Religious Freedom In China Trade Talks

As White House trade negotiations with China continue, the U.S. Commission on International Religious Freedom today issued a release urging the Trump administration to discuss China’s persecution of religious communities with Chinese Vice Premier Liu He who is in Washington, DC for negotiations. USCIRF is particularly concerned with China's treatment of Uighur and other Muslims in Xinjiang. USCIRF Commissioner Gary Bauer said:

The communist Chinese government’s brutal campaign to ‘sinicize’ all religions is one of the worst abuses of religious freedom taking place today.  During these talks about our trade relationship with China, religious persecution and human rights more broadly must be on the table. This is about the right of every man and woman, whether Muslim or Buddhist or Christian or Falun Gong, to worship as he or she sees fit. At a time when the lives and freedoms of millions of Chinese people are under attack by their own government, we cannot, in good conscience, conduct trade negotiations with their leaders as if this didn’t matter.

Justice Department Supports Challenge To Vermont's Exclusion of Parochial Schools From College Program

Yesterday the U.S. Department of Justice filed a Statement of Interest (full text) in in A.M. v. French, (D VT, filed 5/9/2019). DOJ's filing supports the position of plaintiffs who are challenging the exclusion of religious private school students from Vermont's Dual Enrollment Program.  Under the program, high school students may take up to two courses at public or private colleges at state expense. However while public and other private schools and home schooled students are eligible, private religious school students are not. DOJ argues that this discriminates against students' religious expression. DOJ also issued a press release explaining its action.

Pope Francis Imposes New Reporting Procedures For Sex Abuse

Pope Francis today signed an Apostolic Letter titled Vos Estis Lux Mundi setting out new procedures for mandatory reporting to ecclesiastical authorities of sexual abuse of minors or vulnerable adults, of involvement with child pornography, and of interference with Church or civil investigations of abuse. Zenit has a summary, as well as the full text of the Pope's Apostolic Letter and the Vatican's accompanying statement, which says in part:

“Vos estis lux mundi” contains several innovative elements that aim to improve coordination between the dioceses and the Holy See. In particular, within a year all dioceses must establish stable and publicly accessible systems to report cases of sexual abuse and their cover up.

Furthermore, this Motu proprio obliges all clerics, as well as men and women religious, to report to the competent ecclesiastical authorities the abuses of which they become aware. The reported cases must thereafter be promptly verified and handled in accordance with canon law. As for reports regarding Bishops, the Motu proprio introduces procedural measures that, as a rule, charge the Metropolitan of the pertinent ecclesiastical Province with verifying what has been reported. Also established for the first time are time restrictions within which investigations must be carried out, as well as the procedures to be followed by the Metropolitan, who can make use of the specific professional contributions of the lay faithful.

Finally, the Motu proprio emphasizes the care of people harmed and the importance of welcoming them, listening to them and accompanying them, offering them the spiritual and medical assistance they need.

Vatican News reports on the new document. [Thanks to Tom Rutledge for the lead.]

Plaintiff Challenging Vaccination Requirements Contracts Chicken Pox

A high school senior who recently lost his attempt to enjoin enforcement of steps taken by a local Kentucky health department to control an outbreak of chicken pox at a Catholic high school has now come down with chicken pox, according to the Cincinnati Enquirer. Jerome Kunkel, who objects on religious grounds to the vaccine because it was originally produced using cells from an aborted fetus, had a religious exemption from vaccination requirements, as did most of his classmates at a conservative Catholic high school. Kunkel's lawyer said that about half of his clients have contracted the disease. He told them that contracting chicken pox, which creates immunity, was the quickest way to resolve their dispute with the county's extra-curricular and school attendance bans on student who are not immune.

Muslim Employees Sue Amazon Over Religious Accommodation and Discrimination

On Tuesday, Muslim Advocates filed a complaint (full text) with the EEOC charging that Amazon.com, Inc.'s Minneapolis facility discriminates against its Muslim Somali and east African workers. The complaint charges that, among other things, Amazon fails to reasonably accommodate employees' religious practices. It claims the company provides inadequate space and time for employees to pray, and does not accommodate Ramadan observance. Daily Caller reports on the lawsuit.

Data On Russia's Prosecution of Missionary Activity

Forum 18 reported this week:

At least 159 prosecutions of individuals and communities for violating Russia's "anti-missionary" restrictions under Administrative Code Article 5.26, Parts 3, 4 and 5 are known to have reached court in the calendar year 2018.

This marks a decrease in the overall number of such prosecutions compared with the first year of the legislation's implementation (2016-17), which appears to be primarily explained by the sharp drop in the number of cases against Jehovah's Witnesses, whose activities were outlawed as "extremist" by Russia's Supreme Court in 2017.

Forum 18 found 159 cases against 56 organisations and 103 individuals which reached court in 2018. Of these, 132 resulted in conviction, with 129 fines being imposed. 2018 saw a conviction rate of 90 per cent, compared with 82 per cent in 2016-17.

Here is a detailed list of the prosecutions.

New York's High Court OK's Removal Of Bishop Sheen's Remains To Illinois

New York's highest state court has dismissed sua sponte the appeal in In the Matter of Cunningham v. Trustees of St. Patrick's Cathedral, (NY Ct. App., May 2, 2019) (Order List). The decision allows the remains of the late Bishop Fulton J. Sheen to be removed from St. Patrick's Cathedral in New York and moved to Peoria, Illinois.  The move is seen by Sheen's heirs as the only way to advance the cause of sainthood for him. In a short opinion on March 5, 2019 (full text), New York's intermediate appellate court upheld the trial court's decision allowing exhumation. In its dismissal order last week, the Court of Appeals said that "no substantial constitutional question is directly involved." Peoria Journal Star reports on last week's court order.

Suit Challenges Bible Display At VA Hospital

Suit was filed yesterday in New Hampshire federal district court against a VA Medical Center challenging a lobby display that includes a Bible.  As described by an AP report on the lawsuit:

The Bible was carried by a prisoner of war in World War II and became part of the Missing Man Table honoring missing veterans and POWs at the entranceway of the Manchester VA Medical Center. The Department of Veterans Affairs said Tuesday the table was sponsored by a veterans group called the Northeast POW/MIA Network.

The complaint (full text) in Chamberlain v. Montoya, (D NH, filed 5/7/2019), contends that the display violates the Establishment Clause, saying in part:

Here, the placement of the Christian Bible in a locked case on the POW/MIA table puts forth the Christian beliefs of some, at the expense of the beliefs of non-Christians.

Plaintiffs in the lawsuit are represented by the Military Religious Freedom Foundation. while the Northeast POW/MIA Network is represented by First Liberty Institute.

Episcopal Parish's Suit Against Its Rector Is Dismissed

In Parish of St. Paul's Episcopal Church v. Kovoor, 2019 Conn. Super. LEXIS 714 (CT Super. Ct., April 10, 2019), a Connecticut state trial court dismissed a lawsuit brought by a Darien, Connecticut parish which was seeking to remove its Rector, Rev. George Kovoor, on the ground that he made material misrepresentations of his credentials when he applied for employment.  Prior to the filing of the lawsuit, the parent church had stepped in and attempted to resolve the dispute between the parish and Kavoor, ordering that each party take certain steps. When the parish failed to take the steps called for, the parent church dissolved the parish and converted it into a Worshiping Community under direct supervision of the Bishop. The court held that it must defer to the decisions of the parent Episcopal Church:

Neutral principals of law can be applied to church disputes. Herein the plaintiffs claim common-law employment contract law is such a neutral principle of law that should be applied. Applying those provisions would relitigate the three decisions already issued by the Episcopal Church as to the St. Paul's/Kovoor Rector situation. In this court's opinion that would cause the Superior Court to examine the internal workings and polity of the Episcopal Church in Connecticut....

The court finds the March 2016 employment relationship... is religious in nature. The court finds that adjudicating the particular claims and defenses in this case will require the court to intervene into a religious institution's exclusive right to decide matters pertaining to doctrine and/or its internal governance or organization.... 

This court finds that the nature of a relief being sought in this case would entangle the Superior Court of the State of Connecticut into matters of religious hiring, religious practices and church polity. The court notes that there is no claim in this litigation concerning the title to the real property currently occupied by the Worshipping Community and formerly by St. Paul's Parish of Darien, Connecticut.

Reporting on the decision Virture Online says that St. Paul's is now operating as a state-chartered ecclesiastical society, unconnected to the Episcopal Church.

Brunei Places Moratorium On Death Penalty Under Sharia Code; Will Ratify Torture Convention

Earlier this year, the Sultan of Brunei announced further implementation of Sharia law in his southeast Asian country, including implementation of the provisions in Syariah Penal Code Order, 2013 (SPCO) on stoning for the offences of adultery and homosexual sex. (See prior posting.) Now, according to a Bloomberg News report on Sunday, the Sultan has announced a further moratorium on implementation of the death penalty. Borneo Bulletin has published portions of the Sultan's television address delivered over the weekend:

As evident for more than two decades, we have practised a de facto moratorium on the execution of death penalty for cases under the common law. This will also be applied to cases under the SPCO, which provides a wider scope for remission.

As we are all aware, Brunei Darussalam has begun to fully implement the SPCO on April 3, 2019. This is our religious obligation to Allah the Almighty as an Islamic country. The aim of implementing the law is to uphold the objectives of Syariah which are to protect religion, life, lineage, property and intellect....

In upholding our international commitments and obligations on human rights, Brunei Darussalam will be ratifying the United Nations Convention Against Torture (UNCAT). Both the common law and the Syariah law are aimed to ensure peace and harmony of the country. They are also crucial in protecting the morality and decency of the public as well as respecting the privacy of individuals.

Ramadan Begins; President Sends Greetings

The Muslim holy month of Ramadan began in most countries, including the United States, yesterday (May 6).  As reported by the Khaleej Times, one country (Mali) began Ramadan on May 5, and ten countries began the holy month today (May 7). On Sunday (May 5) President Trump issued a Message (full text) sending greetings to all Muslims celebrating Ramadan, saying in part:

Throughout this month, we all have an opportunity to reflect on the blessings we have been given and to work toward greater fellowship with one another.  Together, in the spirit of Ramadan, we can achieve a more harmonious and respectful society.

Recent Articles of Interest

From SSRN:

• Noa Ben-Asher & Margot J. Pollans, The Right Family, (Columbia Journal of Gender and Law, Forthcoming).
• Cathi Choi, Protection Against Good Intentions: The Catholic Role in the Campaign to Ban Proxy Adoption, 1956–1961, (Journal of Policy History, 31(2), 242-272 (2019).
• James J. Friedberg, Yitz and Ishmael: A Drama in One Very Long Act, (Minnesota Journal of International Law, Vol. 28, 2019).
• Khaled A. Beydoun & Cyra Akila Choudhury, Islamophobia and the Law: Introduction, (Cyra Akila Choudhury & Khaled A. Beydoun, Islamophobia and the Law (Cambridge University Press 2019), Forthcoming).
• Zehra Valencia, Breyon Williams & Robert Pettis, Pride and Prejudice: Same-Sex Marriage Legalization Announcements and LGBT Hate-Crimes, (March 26, 2019).
• Katherine Macfarlane, Procedural Animus, (Alabama Law Review, Vol. 71, Forthcoming).
• Siti Ibrahim, et. al., Commitment in Waqf Development Through Cross-Sector Collaboration between Islamic Financial Institutions and State Islamic Religious Councils: Innovative Strategy of Value-Based Intermediation for Sustainability, (J. Fin. Bank. Review 4 (1) 29–35 (2019)).

From SmartCILP:

• Wedding Cakes, Religion, and Sexual Orientation Discrimination. Foreword by Paul M. Secunda; contributions by William D. Araiza, Scott R. Bauries, Richard Carlson, Marcia L. McCormick, Elizabeth Sepper, Jessica L. Roberts, Kerri Lynn Stone. 19 Marquette Benefits & Social Welfare Law Review 109-264 (2018).

British Parliament Debates Sharia Councils

On May 2, Britain's House of Commons debated the operation of Sharia Councils in the United Kingdom. (full text of debate). MP John Howell said in part:

Sharia councils provide a form of alternative dispute resolution.... Members of the Muslim community voluntarily consent to accept the religious jurisdiction of sharia councils. Marital issues and the granting of Islamic marriage divorces account for about 90% of their work. They also advise in matters ​of law, including issues of inheritance, probate and wills and Islamic commercial law contracts, and they provide mediation, counselling and religious ruling services.

Sharia councils are not considered part of the British legal system. They are not courts and their decisions are not legally binding. However, despite having no judicial authority, some councils see themselves as authoritative on religious issues, and the power of sharia councils lies in how they are perceived by their communities.

A significant number of Muslims do not have a marriage recognised under British law.... [S]ome Muslim women therefore have no option of obtaining a civil divorce. Some women may have no other option but to obtain a religious divorce, for which the judgment of a sharia council is normally required.

Law & Religion UK has a more extensive summary of the debate.

New Report On Payment of Church Taxes In Europe

Last week, the Pew Research Center released a new Report (full text) on public attitudes in European nations on the payment of church taxes, saying in part:

There is evidence that some Europeans are leaving the church tax system, but there does not appear to be a mass exodus. The survey finds that between 8% of adults (in Switzerland) and 20% (in Finland) say they have left their church tax system.... At the same time, majorities still support the tradition of paying taxes to religious institutions.

District Court Says Challenge To Trump's Alleged Muslim Travel Ban May Proceed

In International Refugee Assistance Project v. Trump, (D MD, May 2, 2019), a Maryland federal district court, in a case on remand from the U.S. Supreme Court and the 4th Circuit, refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. The Supreme Court's remand was ordered in light of its rejection of an Establishment Clause challenge in a parallel case (Hawaii II). In its latest decision, the district court said, however:

Notably, at no point in Hawaii II did the Supreme Court state that its conclusion that the Proclamation would satisfy rational basis review, based on the record before it and in the context of a motion for a preliminary injunction, required dismissal of the Establishment Clause claim in either that case or the present case. Indeed, two Justices, including one in the majority, identified the possibility that constitutional claims would proceed.

Setting out it reasons for allowing the constitutional challenges to now move ahead, the district court said in part:

Plaintiffs have provided detailed allegations for why the Proclamation is not rationally related to its stated national security interests and is instead grounded in the illegitimate and unconstitutional purpose of disadvantaging Muslims.

First, the Complaints provide detailed allegations of statements by the President exhibiting religious animus toward Muslims and articulating a desire to ban Muslims from entering the United States, including his statement as a presidential candidate that he planned to institute "a total and complete shutdown of Muslims entering the United States" and numerous later statements reaffirming this position... 

Contrary to the Government's claim during the hearing on the Motion, Hawaii II does not instruct courts to disregard these statements or any public pronouncements of a President, nor does it hold that the subjective intent of the President and his advisors in formulating and issuing the Proclamation is irrelevant. Rather, the Supreme Court specifically stated that this evidence "may be considered," so long as the "authority of the Presidency itself' is given its due....

Court Refuses To Dismiss Suit To Allow Christian Flag Outside Boston City Hall

In Shurtleff v. City of Boston, (D MA, May 3, 2019), a Massachusetts federal district court refused to dismiss a suit brought to enjoin the City from denying permission to a religious organization to display a Christian flag on a flagpole outside City Hall for an event marking Constitution Day and Citizenship Day event. The flag pole flies the city's flag except when it is used by outside groups for a flag to mark a special event. The court held that there are factual issues to be determined on plaintiffs' free speech claims-- whether this involves "government speech," and whether the city has imposed a reasonable, viewpoint neutral regulation in a limited public forum. Also factual issues remain on plaintiffs' Establishment Clause and Equal Protection claims.

HHS Adopts Final Rules On Conscience Protection In Health Care; Suit Filed Challenging New Rules

The U.S. Department of Health and Human Services Office of Civil Rights has submitted for publication in the Federal Register final rules on protecting the conscience rights of health care providers. The rules, set out in a 440-page release (full text), become effective in 60 days.  The Release summarizes the new rules:

This final rule revises existing regulations to ensure vigorous enforcement of Federal conscience and anti‐discrimination laws applicable to the Department, its programs, and recipients of HHS funds, and to delegate overall enforcement and compliance responsibility to the Department’s Office for Civil Rights (“OCR”). In addition, this final rule clarifies OCR’s authority to initiate compliance reviews, conduct investigations, supervise and coordinate compliance by the Department and its components, and use enforcement tools otherwise available in existing regulations to address violations and resolve complaints.

New York Times, reporting on the new rules, says in part:

some groups said they feared the provisions were overly broad and could imperil care for patients seeking reproductive health care. They also said it could lead to discrimination against gay or transgender patients and their children, and weaken public health efforts to expand childhood vaccinations.

Yesterday, San Francisco City Attorney Dennis Herrera announced that he has filed suit to invalidate the new rules. The complaint (full text) in City and County of San Francisco v. Azar, (ND CA, filed 5/2/2019), alleges in part:

The Final Rule requires the City and County of San Francisco (“City” or “San Francisco”)—in any and all circumstances—to prioritize providers’ religious beliefs over the health and lives of women, lesbian, gay, bisexual, or transgender people, and other medically and socially vulnerable populations. If San Francisco refuses to comply, it risks losing nearly $1 billion in federal funds that support critical health care services and other vital functions.

The suit alleges that the new rules are in violation of federal statutes and various constitutional provisions including the Establishment Clause.

House of Representatives Moves To Intervene To Defend Federal FGM Ban

As previously reported, last month the Department of Justice 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.  Yesterday, the House of Representatives filed a motion to intervene (full text) in the case to defend the constitutionality of the statute. The Detroit Free Press reports on this move by House leaders.

Today Is National Day of Prayer

Earlier this week, President Trump issued a Presidential Proclamation (full text) declaring today as a National Day of Prayer.  The Proclamation is called for by 36 USC §119 passed by Congress in 1988. The Proclamation states in part:

Our Nation acknowledges that religious liberty is a natural right, given to us by our Creator, not a courtesy that government extends to us.  The First Amendment recognizes the freedom of religion and safeguards this right against government infringement.  The United States’ steadfast commitment to upholding religious freedom has ensured that people of different faiths can pray together and live in peace as fellow American citizens.  We have no tolerance for those who disrupt this peace, and we condemn all hate and violence, particularly in our places of worship.

According to CBN News, last night the President hosted 100 religious leaders of a wide variety of faiths at a White House dinner.  In remarks, the President said in part:

All of us in this room send our love and prayers to the Jewish Americans wounded at the Chabad of Poway shooting in California. And our hearts break for the life of Laurie Gilbert-Kaye who was so wickedly taken from us."

We mourn for the Christians murdered in Sri Lanka on Easter Sunday and grieve for the Muslims murdered at their mosques in New Zealand.  Here at home, we also remember the three historically black churches burned recently in Louisiana and the horrific shooting last year at the Tree of Life Synagogue in Pittsburgh.

The non-governmental National Day of Prayer Committee has scheduled an observance in Washington, D.C. for this evening.

UPDATE: Vice President Pence spoke at a White House Rose Garden ceremony marking the National Day of Prayer. (full text of remarks).

Georgia Institutes Investigation of Catholic Church Sex Abuse Claims

The Atlanta Journal Constitution reports that Georgia's Attorney General has announced an investigation into past sexual abuse claims in the Catholic Church. The investigation will be carried out by Georgia's Prosecuting Attorneys' Council. Atlanta Archbishop Wilton Gregory and Savannah Bishop Gregory Hartmayer both support the investigation. Other states have carried out similar investigations.

Survey of Antisemitism Worldwide Released

Yesterday, Tel Aviv University's Kantor Center released its report Antisemitism Worldwide 2018.  The 148-page report examines anti-Semitism around the world, surveying both the number of incidents and underlying causes and trends.  It says in part:

The most disturbing development, that keeps continuing and intensifying since 2016, is that Jews in some countries feel they live in a state of emergency, because of the continuing rise, most notably in Western Europe and North America, in antisemitic manifestations.

- As a result Jews started questioning and doubting their association with places and societies they have lived in for long, sometimes for centuries....

The normalization and mainstreaming of antisemitism in public forums, debates and discussions is manifested in all media channels, most notably the social networks. Antisemitism is no longer an issue confined to the activity of the far left, far right and radical Islamists triangle - it has mainstreamed and became an integral part of life.... 

Mainstreamed as well is the growing use of of antisemitic terms in anti-Zionist discourse, and the disproportionate hostility directed against the Jewish nation-state, which resumes Jewish characteristics.

Canadian Court Refuses To Enjoin Law Allowing Gay Student Associations

In PT v Alberta, (Alberta Ct. App., April 29, 2019), the Alberta (Canada) Court of Appeal in a 2-1 decision upheld a trial court's refusal to issue an interim injunction staying operation of challenged provisions of the School Act while its constitutionality is being litigated.  At issue are provisions which empower students to create voluntary student organizations that create a welcoming environment, especially for LGBTQ+ students. Parents, along with numerous Christian schools and organizations, sued claiming that the law infringed their rights under the Canadian Charter of Rights and Freedoms by depriving parents of choice in the education of their children and their ability to educate their children in accordance with their moral and religious values. Calgary Star reports on the decision.

USCIRF Issues 2019 International Religious Freedom Report

On April 29, the U.S. Commission on International Religious Freedom released its 2019 Annual Report on International Religious Freedom. The 234-page report recommends that 16 countries be designated as "countries of particular concern" because of their "systematic, ongoing, egregious violations" of religious freedom.  Ten of those are already designated as CPC's by the State Department-- Burma, China, Eritrea, Iran, North Korea, Pakistan, Saudi Arabia, Sudan, Tajikistan, Turkmenistan. The six recommended additions are Central African Republic, Nigeria, Russia, Syria, Uzbekistan, and Vietnam. USCIRF also placed 12 countries on its "Tier 2" list for less serious violations of religious liberty. The report details the conditions in each of these 28 nations. 

Additionally the Report recommends five non-state entities be designated "entities of particular concern" because of their suppression of religious freedom. Also USCIRF makes various policy recommendations to the Administration and to Congress.

ADL Releases 2018 Audit of Anti-Semitic Incidents

Yesterday, the Anti-Defamation League released its annual Audit of Anti-Semitic Incidents for 2018. The organization summarized its findings:

The U.S. Jewish community experienced near-historic levels of anti-Semitism in 2018, including a doubling of anti-Semitic assaults and the single deadliest attack against the Jewish community in American history... ADL’s annual Audit of Anti-Semitic incidents recorded a total of 1,879 attacks against Jews and Jewish institutions across the country in 2018, the third-highest year on record since ADL started tracking such data in the 1970s.

In a year marked by the white supremacist shooting spree at a Pittsburgh synagogue, which claimed 11 lives, and punctuated by a dramatic surge in white supremacist propaganda activity nationwide, ADL’s Audit identified 59 people who were victims of anti-Semitic assaults in 2018, up from 21 in 2017. While the overall number of incidents represents a 5 percent decline from 1,986 incidents reported in 2017, the number of incidents last year remained at near-historic levels – 48 percent higher than the total for 2016 and 99 percent higher than in 2015.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In In re Alief Vietnamese Alliance Church and Phan Phung Hung, (TX App., April 30, 2019), a Texas state appellate court held that a defamation claim by a church's former interim pastor, Paul Nguyen, against the Church and its senior pastor Phan Phung Hung should be dismissed under the ecclesiastical abstention doctrine.  At issue were statements by Hung that Nguyen had committed adultery with a female church member. In a 2-1 decision, the majority said in part:

We conclude that Hung's allegedly defamatory statements are ... "inextricably intertwined" with matters relating to an internal struggle between a current and former leader of the Church over Church governance, the standard of morals required of leaders of the Church, and the reason for Nguyen's leaving or being expelled from the Church....

Even if there is a dispute over Hung's motivation in making the statements—either as part of a disciplinary procedure due to the alleged adultery or merely out of vindictiveness towards Nguyen, who had criticized Hung's pastoring decisions—these statements were made in the context of expelling a member and former leader of the Church, or, alternatively, the Church member's voluntarily quitting his leadership positions and quitting the Church—and then refusing to meet with Church leadership to resolve the dispute—either version of which is inherently an ecclesiastical concern as a matter of law.

Judge Landau filed a dissenting opinion.

Latest NYC Emergency Measles Order Upheld

In C.F. v. New York City Department of Health and Mental Hygiene, 2019 NYLJ LEXIS 1419 (Kings Cty. Sup. Ct., April 3, 2019), a New York state trial court judge has upheld the latest version of New York City's declaration of a public health emergency to combat the measles outbreak.  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 and issuing the attendant orders challenged herein. The evidence in this regard is largely uncontroverted. The unvarnished 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. It has already begun to spread to remote locations....

The court went on to reject petitioner's scientific, religious and moral objections to the orders issued by the Department of Health:

Petitioners' medical experts opine, variously, that the MMR vaccine is ineffective, is of greater risk than non-vaccination and that the MMR vaccine itself propagates the very disease it was designed to prevent. These contentions are completely unsupported by studies, medical literature or other acceptable evidence....

The religious objection exemption contained in Public Health Law 2164(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. Even if it did apply, the affidavits ... are entirely unsupported by an affidavit of a religious official (priest, rabbi, etc.) or other doctrinal documentation tending to support their opinion....

Petitioners have raised various moral objections seemingly centered around a claim that the order(s) would compel forced vaccination. An examination of the orders indicates, and respondents concede that they do not require forcible vaccination. Accordingly, this court need not address the issue of forcible vaccination....

California Bishops Prevail In Part On Anti-SLAPP Defense To Abuse Concealment Claims

In Emens v. California Catholic Conference, (CA Super. Ct., April 17, 2019), a California state trial court granted a portion of an anti-SLAPP motion filed by the bishops of California's 11 dioceses seeking to strike a broad complaint filed against them charging that they have concealed clergy sex abuse. The complaint in the case (full text) filed last October charges that the concealment actions by the various bishops amount to a public nuisance, a private nuisance and civil conspiracy.  It asked for an order requiring release of the names of all clergy accused of child molestation and their history of abuse. California's anti-SLAPP law allows courts to strike a complaint that arises from acts in furtherance of free speech on a public issue unless plaintiff establishes there is a probability that he or she will prevail.

Finding that plaintiff has not established the probability of prevailing on the merits, the court struck portions of the complaint which allege actions in furtherance of free speech rights, but allowed plaintiff to move ahead on those claims that are not based on the exercise of free expression, saying in part:

Some of the conduct alleged does implicate the right of free speech, including the right not to speak. This would include the right not to publicly disclose the names of priests against whom allegations were made which were determined to be unfounded or lack credibility, and disclosing the names of priests against who allegations were made of conduct in the 1950’s where there was no investigation and where the priests have passed away.

The allegation that defendants attacked the credibility of victims does implicate free speech. Defendants may address the credibility of those making accusations against priests. 

Allowing child molesters to live in the community without notice to the community and transferring alleged molesters to new parishes without warning of the general public has First Amendment free speech implications. The actions are not permitting molesters to live in the community and transferring accused molesters, but doing this without notice to the affected communities. There are no allegations that the priests at issue had been convicted of any crime, or that notice was mandated. This would include accusations made against priests which were determined to lack credibility and to be without merit.

Concealing information regarding the actions of defendants and their agents from victims of past abuse also implicates free speech, as it is a general allegations as to all information regarding any reports of abuse, whether that information is connected to the abuse of a particular victim or there was any relation between the time of the abuse and the time of the information, and without regard to the credibility of the information. 

The remaining allegations do not involve the right to free speech or petition. There is no right to conceal sexual assaults from authorities. Protecting abusers from criminal prosecution is neither free speech nor petition. Making affirmative representations of the fitness of priests for assignments which included working with children while concealing information regarding the sexual misconduct of those priests is not an issue of free speech, but an issue of false speech.

Pacific Standard reports on the press conference held yesterday by the plaintiff and his attorneys who see the decision as a victory since it allows plaintiff to move ahead on some of his allegations.

Washington Catholic Hospitals Settle Suit Charging Them With Failure To Provide Charity Care

Washington state's attorney general yesterday announced the filing of a consent decree (full text) in State of Washington v. Franciscan Health System, (WA Super. Ct., April 29, 2019).  The settlement grows out of a lawsuit filed in 2017 against eight CHI Franciscan hospitals alleging that they violated the state's Consumer Protection Act by failing to make charity care available to tens of thousands of patients who were entitled to it under state law. As summarized by the AG's press release, the hospitals "will forgive as much as $20 million in debt, pay $2.22 million in refunds, pay the Attorney General’s Office $2.46 million, and rehabilitate the credit of thousands of patients who qualified for charity care between 2012 and 2017 but did not receive it."  The Consent Decree also requires detailed changes in the hospitals' procedures for providing financial assistance to patients.

Certiorari Denied In Church Trademark Dispute

The U.S. Supreme Court yesterday denied review in Universal Church, Inc. v. Toellner, (Docket No. 18-1159, certiorari denied 4/29/2019).  In the case, the U.S. Second Circuit Court of Appeals rejected a claim that the Universal Life Church had infringed the trademark of the Universal Church.  In Universal Church, Inc. v. Toellner, (2d Cir. Nov. 2, 2018), the court held that the term  "Universal Church" is generic in referring to religious counseling and evangelistic and ministerial services.

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....