U.S. Catholic Bishops Adopt New Accountability Measures

The U.S. Conference of Catholic Bishops announced yesterday that during its June 11-14 General Assembly it has adopted additional measures to deal with clergy accountability for sex abuse:

The first vote, Protocol Regarding Available Non-Penal Restrictions on Bishops, passed by 212 to 4 with 1 abstention. This form of accountability provides protocols for imposing limitations on former bishops who were removed from office for grave reasons. It also empowers the USCCB president to restrict bishops removed or resigned for reasons related to sexual abuse or abuse of power.

A second vote, Acknowledging Our Episcopal Commitments passed by 217 to 1 with 2 abstentions. This accountability measure implements a bishop code of conduct, including the affirmation that the Charter for the Protection of Children and Young People is expanded to include bishops as well as priests and deacons.

The third vote, Directives for the Implementation of the Provisions of Vos estis lux mundi Concerning Bishops and their Equivalents, presents a plan for optimal implementation of Pope Francis’s recent Motu proprio in the United States, including an outline for lay involvement. It passed by 218 to 1 with 2 abstentions.

Yesterday, the body of bishops passed another bishop accountability reform, voting for the establishment of a Third-Party Reporting System for receiving confidentially, by phone and online, reports of possible violations by bishops of Vos estis lux mundi. The action item commits to activating the system no later than May 31, 2020.

Bauer Reappointed To USCIRF

In a press release issued this week, the U.S. Commission on International Religious Freedom announced that President Trump has reappointed Commissioner Gary L. Bauer to an additional two year term.

New York Ends Religious Exemption From Vaccination Requirements

Yesterday New York's Gov. Andrew Cuomo signed into law A2371 (full text) repealing Pub. Health Law Sec. 2164, subd. 9 which has provided a religious exemption from mandatory vaccination requirements. In a press release announcing Cuomo's signing of the bill, the Governor's office said in part:

The United States is currently experiencing the worst outbreak of measles in more than 25 years, with outbreaks in pockets of New York primarily driving the crisis. As a result of non-medical vaccination exemptions, many communities across New York have unacceptably low rates of vaccination, and those unvaccinated children can often attend school where they may spread the disease to other unvaccinated students. This new law will help protect the public amid this ongoing outbreak....

Governor Cuomo said. "While I understand and respect freedom of religion, our first job is to protect the public health and by signing this measure into law, we will help prevent further transmissions and stop this outbreak right in its tracks."

USA Herald reports on the new law.

Church Sues Over Its Removal As Polling Place

A suit was filed this week in a California federal district court by a Unitarian Church that was removed by election officials as a polling place because the church displayed two Black Lives Matter banners on its property and would not remove them for election day.  The complaint (full text) in Unitarian Universalist Church of Fresno v. Orth, (ED CA, filed 6/10/2019) contends that eliminating the church as a voting location violates its First Amendment free expression rights. Religion News Service reports on the lawsuit.

$4.1M Damages Awarded To Muslim Comedian Against Neo-Nazi Website

Religion News Service reports that in a suit by Muslim comedian Dean Obeidallah against the publishers of the neo-Nazi website the Daily Stormer, an Ohio federal district court awarded plaintiff $4.1 million in damages for defamation.  In Obeidallah v. Anglin, (SD OH, June 13, 2019), the court awarded damages implementing its earlier determination that defendants acted with actual malice when they falsely claimed that Obeidallah was part of ISIS and was the mastermind behind the 2017 bombing of a concert that killed 22 people. The court also issued an injunction directing defendants to forthwith remove from its website, Twitter and other social media accounts any reference to Obeidallah that describes him as a terrorist or a member of ISIS.

Hung Jury In Trial of Activist For Aiding Aliens

AP reports that a mistrial was declared Tuesday after an Arizona federal court jury was unable to reach a verdict in the prosecution of Scott Warren, a volunteer with the humanitarian group No More Deaths. Warren was charged with concealing and harboring aliens after he offered aid to two migrants near the U.S.-Mexico border. Warren's defenses included a claim that his actions were protected by the Religious Freedom Restoration Act. (See prior posting.) [Thanks to Stephanie Inks for the lead.]

District Court Nominee Withdraws Amid Controversy Over Brief In 1st Amendment Case

The Hill and the Kansas City Star report that Michael Bogren, a Trump judicial nominee for a seat on the federal district court for the Western District of Michigan, has withdrawn himself from consideration amid claims that he is anti-Catholic.  Three Republican members of the Senate Judiciary Committee indicated their opposition to Bogren because of a brief he filed in a 2017 case defending the City of East Lansing. Vendor Guidelines for East Lansing's Farmers' Market required vendors to comply with the civil rights ordinance as a general business practice. The Catholic owner of Country Mill Farms was denied a vendor permit because, while the Farm hosts weddings at its orchard, it refuses on religious grounds to host same-sex weddings.  (See prior posting.) In the brief, Bogren argued that the First Amendment does not create an exception for discrimination based on religious beliefs any more than it does for a member of the Ku Klux Klan refusing to serve African Americans.

Members of Bogren's law firm, Plunkett Cooney, wrote a letter (full text) on June 7 strongly defending Bogren, saying that criticism of him is misinformed. Michigan's two Democratic Senators supported Bogren.  But Missouri Republican Senator Josh Hawley, one of Bogren's chief critics, argued: "He could have given a vigorous defense to his client without stooping to calling this Catholic family equivalent to members of the KKK, comparing them to radical Islamic jihadists."

Court Says Conversion Therapy Provider Violated Injunction

In Ferguson v. JONAH, (NJ Super. Ct., June 10, 2019), a New Jersey state trial court judge held that the organization JONAH (Jews Offering New Alternatives for Healing), its founder and a counselor, have violated a permanent injunction issued in 2015. JONAH provided "conversion therapy" that it falsely claimed could change an individual from gay to straight.  Instead of appealing the decision, defendants entered a confidential settlement agreement and agreed to the issuance of a permanent injunction requiring JONAH to cease operations and liquidate. (See prior posting.) The court held that defendants' new organization, JIFGA (Jewish Institute for Global Awareness), is a mere continuation of JONAH. NJ.com  reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Lesbian Couple Has Standing To Challenge Grants To Catholic Foster Care Agency

In Marouf v. Azar, (D DC, June 12, 2019), the U.S. District Court for the District of Columbia held that a lesbian couple (as well as an organizational plaintiff) lack taxpayer standing to challenge federal grants to a Catholic non-profit organization which refuses to place unaccompanied refugee children for foster care with same-sex couples.  However, the court held that the couple does have individual standing to pursue their Establishment Clause, Equal Protection and Due Process challenges to the grants.  The court said in part:

According to the Federal Defendants, a federal agency cannot be held to account for a grantee’s known exclusion of persons from a federally funded program on a prohibited ground. That is an astonishing outcome. Surely, the government would not take this position if, say, Plaintiffs here were excluded from fostering a child based on their gender (both are women), national origin (Marouf is the daughter of Egyptian and Turkish immigrants), or religious faith (Marouf was raised a Muslim, Esplin a Mormon). Yet, despite conceding that there is no agency policy that prevents child placement with same sex couples ..., the Federal Defendants in this case wish to avoid the responsibility that comes with being good stewards of federal funds. They cannot do so.

Cert. Petition Filed In Challenge To Restrictions On Abortion Clinic Sidewalk Counseling

Last week (June 7), a petition for certiorari (full text) was filed in Price v. City of Chicago. In the case, the U.S. 7th Circuit Court of Appeals (full text of decision) upheld Chicago's floating "bubble zone" ban on sidewalk counseling outside abortion clinics. The 7th Circuit relied on a 2000 U.S. Supreme Court decision which has not been overruled. However the 7th Circuit said that the 2000 case has been "unsettled" by later Supreme Court decisions. Thomas More Society issued a press release announcing the filing of the petition seeking Supreme Court review.

Botswana Court Strikes Down Ban on Homosexuality

New York Times reports that yesterday Botswana's High Court struck down the country's ban on homosexuality.  The Court held unconstitutional Section 164 of the Botswana Penal Code that prohibits having "carnal knowledge ... against the order of nature."  Homosexuality was first outlawed in the late 1800's when the Botswana was the British colony of Bechuanaland.

Texas Governor Signs "Save Chik-fil-A" Law

On Monday, Texas Gov. Greg Abbott signed into law S.B. 1978 (full text) which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. According to KXAN News:

The bill was brought forward by Republicans after San Antonio City Council voted in March to exclude Chik-fil-A from having airport concessions in their city because of the fast-food chain's owners' record on LGBT issues, specifically over donations to the Fellowship of Christian Athletes, the Salvation Army, and a George youth home; whose leaders advocate for marriage to be between one-man and one-woman.

The law has become known as the "Save Chik-fil-A bill."

Justice Department Files Statement of Interest In Challenge To Maine's Exclusion of Parochial Schools From State Program

The Justice Department announced on Monday that it has filed a Statement of Interest in a suit brought in a Maine federal district court by parents and students claiming unconstitutional discrimination against religious schools.  In Maine, small school districts that do not operate their own high schools or contract with a specific school for educational purposes, pay tuition for residents to attend a high school elsewhere in the state.  The suit challenges the Maine law that bars paying tuition for students to attend sectarian schools under this program. (See prior posting.) The Justice Department said in part:

Today’s filing addresses issues set forth in the Department of Justice’s Guidance on Federal Law Protections for Religious Liberty issued on Oct. 6, 2017, at the direction of President Trump’s  May 4, 2017, Executive Order Promoting Free Speech and Religious Liberty.

AP reports on DOJ's action. [Thanks to Tom Rutledge for the lead.]

Israel's Supreme Court Approves Disputed Sales of Greek Orthodox Church Properties

Jerusalem Post and AFP report on a decision of the Israeli Supreme Court on Monday approving the 2004 sale (or in one case, the 99-year lease) by the Greek Orthodox Church of three properties in the Old City of Jerusalem to the Jewish organization Ateret Cohanim. The goal of Ateret Cohanim is to extend Jewish ownership over property in East Jerusalem by purchasing Palestinian-owned property through front companies. Ateret Cohanim paid over $1.8 million for the properties.  The Greek Orthodox Patriarchate claims that the sales were made by its director of finance, Nicholas Papadimas, without proper authorization. It also claimed that Papadimas was bribed to advance the sales. Disclosure of the sales led to the Church's dismissal of Patriarch Irineos I and his replacement by Patriarch Theophilos III. The 3-judge panel of the Supreme Court affirmed the trial court's decision upholding the legality of the sales.

Two More Suits Challenge Expanded Religious Accommodation For Health Care Providers

Suit was filed yesterday in New York federal district court challenging rules recently adopted by the U.S. Department of Health and Human Services (see prior posting) expanding the protection of conscience rights for health care providers.  The 63-page complaint (full text) in National Family Planning and Reproductive Health Association v. Azar, (SD NY, filed 6/11/2019) alleges that:

The Final Rule encourages and authorizes discrimination by unlawfully granting a wide swath of institutions and individuals broad new rights to refuse to provide health care services and information.

The complaint elaborates:

The Rule will exacerbate existing systemic barriers by endangering Plaintiffs’ members’ ability to provide care to already underserved populations. For example:

• By requiring the absolute accommodation of an employee’s refusal to provide certain information and services, the Final Rule could at any time force Plaintiffs to reduce the availability or scope of services they provide or even eliminate them entirely, particularly in small locations that may rely on a single staff member to perform multiple job functions.
• By prohibiting Plaintiffs from even asking job applicants whether they are willing to perform basic job requirements, and because the Final Rule does not require employees who intend to refuse to so notify their employers or their patients, neither Plaintiffs nor their patients may be aware when a staff member is denying a patient access to needed care or information;
• By prohibiting those of Plaintiff NFPRHA’s members who are state and local governmental Title X grantees from requiring sub-recipients to comply with the statutory and regulatory requirements of Title X’s abortion counseling and referral, the Final Rule will systematically undermine the integrity of the Title X program, further jeopardizing the ability of Plaintiffs’ patients to access necessary health care and make voluntary, informed decisions about their reproductive health.

The ACLU issued a press release announcing the filing of the lawsuit.

Separately, Planned Parenthood filed a similar lawsuit. (Full text of complaint in Planned Parenthood Federation of America, Inc. v. Azar, (SD NY, filed 6/11/2019). Courthouse News Service reports on this lawsuit.

A similar challenge to the new Rule was filed last month by a number of states and cities. (See prior posting.)

During LGBTQ Pride Month, Vatican Issues Document On Gender Theory In Education

The Vatican's Congregation for Catholic Education yesterday issued a 32-page document titled Male and Female He Created Them: Towards a Path of Dialogue on the Question of Gender Theory in Education. (Full text). The document says in part:

There is a need to reaffrm the metaphysical roots of sexual difference, as an anthropological refutation of attempts to negate the male-female duality of human nature, from which the family is generated. The denial of this duality not only erases the vision of human beings as the fruit of an act of creation but creates the idea of the human person as a sort of abstraction who “chooses for himself what his nature is to be. Man and woman in their created state as complementary versions of what it means to be human are disputed. But if there is no pre-ordained duality of man and woman in creation, then neither is the family any longer a reality established by creation. Likewise, the child has lost the place he had occupied hitherto and the dignity pertaining to him”.

According to Vatican News:

The new document is intended as an instrument to help guide Catholic contributions to the ongoing debate about human sexuality, and to address the challenges that emerge from gender ideology.

As reported by CBS News,  the document, issued during LGBTQ Pride Month, was criticized by LGBTQ advocacy groups.

Another Suit Filed Against Masterpiece Cakeshop For Refusal To Create Cakes For LGBT Events

Another lawsuit has been filed against Masterpiece Cakeshop owner Jack Phillips, this time over his refusal on religious grounds to create a pink birthday cake with blue icing for a transgender female customer.  The complaint (full text) in Scardina v. Masterpiece Cakeshop, Inc., (CO dist. Ct., June 5, 2019), contends that the refusal violates Colorado's anti-discrimination and deceptive practices acts. This suit was filed by the aggrieved customer after litigation over the same issue between Phillips and the Colorado Civil Rights Commission was dropped. (See prior posting.)  Last year the U.S. Supreme Court on narrow grounds ruled against the Colorado Civil Rights Commission in its attempt to issue a cease and desist order against Masterpiece Cakeshop for its refusal to provide a wedding cake for a same-sex marriage. (See prior posting.) Christian Post reports on the most recent lawsuit.

Arkansas Supreme Court OKs Limits On Leaders of Prison Religious Services

In Mutaqim v. Lay, (AR Sup. Ct., June 6, 2019), the Arkansas Supreme Court rejected challenges by a Nation of Islam inmate to two separate prison policies. The Court upheld the denial in 2013 to 2015 of several issues of the NOI publication The Final Call because they suggested that readers "rise up and strike out at their oppressors." These were censored to protect prison safety and security. The court also upheld a policy barring religious services from being led by inmates, and allowing them to be led by outsiders only if they are credentialed volunteers who are responsible for the orthodoxy of the religion or sect. NOI volunteers could not be found.  The Court said in part:

During the hearing, ADC’s chaplain testified that this policy is designed to protect prison security and order by preventing the dissemination of unorthodox or heretical views to the respective religion or sect, which could result in violence.  As indicated above, prison security is the most compelling government interest in the prison setting.

Air Force Grants Religious Accommodation To Sikh Airman

In a press release last week, the ACLU announced that for the first time, the U.S. Air Force has granted a religious accommodation to a Sikh active duty airman to allow him to wear a turban, beard, and unshorn hair.  The U.S. Army had previously granted similar accommodations. (See prior posting.)

Cert. Denied In Challenge To "In God We Trust" On Currency

Yesterday the U.S. Supreme Court denied review in New Doe Child #1 v. United States, (Docket No. 18-1297, certiorari denied 6/10/2019). (Order List). In the case, the U.S. 8th Circuit Court of Appeals in interesting opinions rejected a constitutional challenge to the placement of the motto "In God We Trust" on U.S. coins and currency.  (See prior posting.) Washington Times reports on the decision.

Washington Supreme Court OK's Anti-Discrimination Law Enforcement Against Florist Opposed To Gay Marriage

In an important and wide-ranging 76-page opinion yesterday, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner.  This is the second time the case has been before the Washington Supreme Court.  After the first decision, the U.S. Supreme Court granted certiorari, vacated the state court's judgment and  remanded for further consideration in light of the U.S. Supreme Court's Masterpiece Cakeshop decision. (See prior posting.) Yesterday in State of Washington v. Arlene's Flowers , Inc., (WA Sup. Ct., June 6, 2019), in a unanimous decision, the court concluded that the state adjudicatory bodies involved acted with religious neutrality. It refused to allow the challengers to expand their claims to allege selective enforcement based on religion by the Washington attorney general.

The Washington Supreme Court went on to hold that challengers cited no authority to support their argument that the state's public accommodation law protects proprietors of public accommodations to the same extent as it protects their patrons, and that a balancing test should be used. The court then rejected the florist's free speech claims, saying:

The decision to either provide or refuse to provide flowers for a wedding does not inherently express a message about that wedding. 

The Court also rejected challengers' religious free exercise claims under the U.S. and Washington state constitutions. It concluded that even if the state constitution requires strict scrutiny, that test is met:

[P]ublic accommodations laws do not simply guarantee access to goods or services. Instead, they serve a broader societal purpose: eradicating barriers to the equal treatment of all citizens in the commercial marketplace. Were we to carve out a patchwork of exceptions for ostensibly justified discrimination, that purpose would be fatally undermined.

Seattle Times reports on the decision. A press release by ADF says the floral shop owners will again ask for review by the U.S. Supreme Court. [Thanks to Tom Rutledge for the lead.]

Feds Settle Suit With Old Order Amish Woman Over Photo In Residency Application

According to the Indy Star, government agencies have settled a lawsuit brought by an Old Order Amish couple.  Under the settlement, the wife will be able to become a permanent U.S. resident without submitting photos of herself in the application for residency. She will also be able to cross the border without photographic identification.

Administration Limits Research Using Fetal Cells

Politico reports:

The Trump administration Wednesday imposed new restrictions on federal use of fetal tissue obtained from abortions, barring government scientists at NIH from doing such research, and canceling an existing HIV research contract with the University of California, San Francisco....

“Promoting the dignity of human life from conception to natural death is one of the very top priorities of President Trump’s administration,” HHS said in a statement. “[NIH internal] research that requires new acquisition of fetal tissue from elective abortions will not be conducted.”

From SSRN:

• Angela Carmella, Catholic Thought on the Common Good: A Place for Establishment Clause Limits to Religious Exercise, (University of St. Thomas Law Journal, Vol. 15, No. 3, 2019).
• Bernd M.J.van der Meulen, The Ultimate Truth. Demons, Dogma, Dominance, Definitions and Democracy - Farewell Address, (European Institute for Food Law Work;ing Paper Series 2019/02).
• Sohail Wahedi, The Health Law Implications of Ritual Circumcisions, (Quinnipiac Health Law Journal, Vol. 22, No. 2, 2019).
• Christen Hammock, Mary Doe ex rel. Satan?: Parody, Religious Liberty, & Reproductive Rights,  Columbia Journal of Gender and Law, Forthcoming).
• Carlo Pedrioli, Pope Francis, Poverty, and the Third Persona, (21 Iowa J. Gender, Race & Just. 367 (2018)).
• Michael Schearer, Ideological Origins of William Penn's 'Holy Experiment', (May 5, 2019).
• Jeremy J. Patrick, Evidence of Absence in the Ruddock Report, (Australian Law Journal, Volume 93, Part 9, 2019).
• Caroline Mala Corbin, Opportunistic Originalism and the Establishment Clause, (Wake Forest Law Review, Vol. 53, 2019).
• William E. Forbath, Constitutionalism, Human Rights and the Genealogy of Jewish Liberalism, (Forthcoming, Law of Strangers: Jewish Lawyering and International Legal Thought in Historical Perspective, Eds. James Loeffler, Moria Paz (Cambridge University Press, 2019)).
• Assaf Likhovski, The Eagle and the Dove: Jewish Law Scholars and Roman Law during the Interwar Period,, (in Pensiero giuridico occidentale e giuristi romani: Eredità e genealogie (Pierre Bonin, Nader Hakim, Fara Nasti and Aldo Schiavone eds., Torino: G. Giappichelli, 2019)).
• Noah Chauvin, Establishment Clause Standards and Standing, (April 29, 2019).

Ecclesiastical Abstention Doctrine Applies To Controversy Over Rental of Catholic Community Center

In Sacred Heart Knanaya Catholic Community Center Building Board v. St. Thomas Syromalabar Diocese of Chicago, 2019 IL App (2d) 180792-U (IL App., May 30, 2019), an Illinois appellate court held that the ecclesiastical abstention doctrine applies to a suit against a Catholic diocese by a Catholic community center board for tortious interference with a business relationship. The diocese barred use of the community center by another Catholic church that had contracted to rent the Center for a Spanish Latin Rite Mass.

NOTICE TO READERS REGARDING PUBLICATION SCHEDULE

FROM MAY 23 TO JUNE 10, POSTINGS ON RELIGIOUS CLAUSE BLOG WILL BE INTERMITTENT AND SPORADIC. LOOK FOR MORE REGULAR POSTINGS TO RESUME ON JUNE 11.

Supreme Court Denies Cert In Challenge To Bus Ad Restrictions

The U.S. Supreme Court today denied review in American Freedom Defense Initiative v. Washington Metropolitan Transit Authority, (Docket No. 18-1000, certiorari denied 6/3/2019) (Order List).  In the case, the D.C. Circuit Court of Appeals remanded  a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that decry supposed Sharia adherent Islamists who want to enforce Islamic blasphemy laws in the United States. (See prior posting.)

Supreme Court Denies Stay Sought By Presbyterian Church In Defamation Suit

Today the U.S. Supreme Court in Presbyterian Church v. Edwards, (Docket No. 18A1126, June 3, 2019) (Order List) denied an application to stay enforcement while a petition for certiorari is filed of an order by the Kentucky Supreme Court (see prior posting).  The Kentucky Supreme Court allowed discovery to proceed in a defamation suit against the Presbyterian Church to the extent necessary to determine if the church is entitled to ecclesiastical immunity. The Church claims that the ecclesiastical abstention doctrine precludes this.

Supreme Court Says Title VII Charge-Filing Prerequisite Is Not Jurisdictional

In Fort Bend County v. Davis, (US Sup. Ct., June 3, 2019) today the U.S. Supreme Court in a Title VII religious discrimination case held unanimously that the statutory requirement that an EEOC claim be filed before commencing suit in court is not jurisdictional.  Therefore defendant may forfeit this defense through undue delay in asserting it. Courthouse News Service reports on the decision.

Tax Court Denies Deduction For Evangelist's Expenses

In Oliveri v. Commissioner (US Tax Ct., May 28, 2019), the U.S. Tax Court rejected claims by a Catholic evangelist that the disallowance of a charitable deduction for many of his evangelistic activities violated his rights under the First Amendment and RFRA:

Petitioner contends that respondent is characterizing his evangelism as if it were not a religious activity and that respondent’s characterization violates the First Amendment. Petitioner mischaracterizes respondent’s position, which is that petitioner’s expenses for evangelistic activities are not deductible as charitable contributions under section 170, not that they are not religious activities. Not all religious activities are services “to or for the use of” a religious organization for purposes of section 170....

Petitioner contends that disallowance of his section 170 deductions violates his right to the free exercise of religion by placing a substantial burden on his evangelization, in that it would result in his having less money to evangelize. We disagree. In Hernandez v. Commissioner, 490 U.S. 680, 699 (1989), the Supreme Court said that “we need not decide whether the burden of disallowing the §170 deduction is a substantial one, for our decision in Lee establishes that even a substantial burden would be justified by the ‘broad public interest in maintaining as ound tax system’”. 

The Tax Court also rejected petitioner's claim that "three audits of his Federal income tax returns within 10 years resulted in excessive Government entanglement with his exercise of religion."

Maine Ends Vaccination Exemptions

Last week, Maine's governor signed into law a bill (full text) eliminating religious and philosophical exemptions to vaccination requirements.  ABC13 reports on the new law. [Thanks to Tom Rutledge for the lead.]

Certiorari Denied In Challenge To Kaporos Ritual

The U.S. Supreme Court on Monday denied review in Alliance to End Chickens as Kaporos v. New York City Police Department, (Docket No. 18-1322, certiorari denied 5/28/2019). (Order List.)  In the case, New York state's highest court agreed that a petition for a writ of mandamus to require enforcement of public health and animal cruelty laws against the Jewish pre-Yom Kippur ritual of kaporos should be denied. (See prior posting).

Supreme Court Upholds Part of Indiana Abortion Law; Denies Review On Injunction For Part

The U.S. Supreme Court Monday in Box v. Planned Parenthood of Indiana and Kentucky, (May 28, 2019), handed down a per curiam opinion on a petition for certiorari before briefing on the merits, but with several amicus briefs having been filed, The court upheld Indiana's law prohibiting fetal remains from abortions being disposed of as medical waste. However the Court denied certiorari as to Indiana's law prohibiting sex-, race- or disability selective abortions, leaving in effect the permanent injuinction approved by the 7th Circuit. (Full text of 7th Circuit opinion.) Justice Thomas filed a separate concurring opinion, but wrote at length criticizing the use of abortion for eugenics purposes. Justices Sotomayor and Ginsburg would have denied review on both issues, with Justice Ginsburg writing a short opinion expressing her views. AP reports on the decision.

Michigan Charges Five Priests On Criminal Sexual Conduct

Michigan Attorney General Dana Nessel last week announced:

Five men who were priests have been charged with a total of 21 counts of criminal sexual conduct, Michigan Attorney General Dana Nessel announced at a news conference this morning in Lansing.  Four of the men have been arrested; one awaits extradition in India. A sixth Michigan priest is facing an administrative complaint and his license as a professional educationally limited counselor has been summarily suspended by the Michigan Department of Licensing and Regulatory Affairs (LARA). 

Proposed HHS Rule Would Eliminate Transgender Protections

Last week the Department oj Health and Human Services issued a proposed rule (full text) that would eliminate protections against discrimination in health care where the discrimination is on the basis of gender identity or termination of pregnancy.  Health Leaders reports on the proposed rule.

Russian Appeals Court Upholds Sentence of Jehovah's Witness

Moscow Times reports today that a 3-judge panel of a Russian appellate court has upheld the 6-year sentence of a Danish Jehovah's Witness adherent who was convicted of organizing a banned "extremist group".  According to the Times:

Armed police detained Dennis Christensen, a builder, in May 2017 at a prayer meeting in Oryol, some 200 miles (320 kilometers) south of Moscow after a court in the region outlawed the local Jehovah's Witnesses a year earlier.

Priest Sexual Assault Case Settled

The Fresno Bee this week reports on the settlement of a claim by a woman that she was sexually assaulted by a Catholic priest:

A Woodland woman has received a $200,000 settlement from the Sacramento Catholic Diocese and the current pastor of a Woodland church after filing a lawsuit in 2017 accusing a former priest of sexual assault and claiming church officials largely ignored her pleas for help.

Senior Community Management Sued Over Ban on Bible Study Groups and Public Prayer

A lawsuit was filed this week in a Virginia federal district court by a retired pastor and his wife against a senior living community where they lived.  The complaint (full text) in Hauge v. Community Realty Company, Inc., (ED VA, filed 5/21/2019), alleges that the community's management discriminated against plaintiffs on the basis of religion by acceding to demands of other residents to bar plaintiffs' followers from publicly saying grace before their meals, and prohibiting plaintiffs from hosting Bible Study anywhere in the living complex.  The suit contends that management's actions violated federal and state fair housing laws.  First Liberty issued a press release announcing the filing of the lawsuit.

States and Cities Sue Administration Over Expanded Health Care Conscience Rules

Yesterday 19 states, the District of Columbia as well as New York City, Chicago and Cook County, Illinois together filed suit in a New York federal district court challenging rules recently adopted by the Department of Health and Human Services (see prior posting) expanding the protection of conscience rights of health care providers. The rules were formally published in the Federal Register yesterday. The 80-page complaint (full text) in State of New York v. U.S. Department of Health and Human Services, (SD NY, filed 5/21/2019) alleges in part:

This lawsuit challenges a U.S. Department of Health and Human Services regulation that – in an unprecedented and unlawful expansion of nearly thirty federal statutory provisions – would compel the Plaintiff States and local jurisdictions to grant to individual health providers the categorical right to deny lawful and medically necessary treatment, services, and information to patients, based on the provider’s own personal views.... [I]t will undermine the Plaintiffs’ ability to administer their health care systems and deliver patient care effectively and efficiently.

[T]he Final Rule seeks to coerce the Plaintiffs to comply with the Department’s overbroad application of federal law by subjecting the Plaintiffs to ... denial of potentially all federal health care funds if the Department determines... that the Plaintiffs... have failed to comply with the Final Rule... [T]his financial exposure could amount to hundreds of billions of dollars each year.

...The Final Rule far exceeds in scope and substance the underlying federal health care statutes...; conflicts with federal statutes regarding access to health care, informed consent, the provision of emergency medical services, and religious accommodations; violates constitutional safeguards that assign the spending power to Congress and prohibit the Executive Branch from coercing states to implement preferred federal policies; and violates the Establishment Clause by imposing a categorical requirement that Plaintiffs accommodate the religious objections of their employees, whatever the cost.

New York's Attorney General issued a press release announcing the law suit.

Separately, the state of California filed a similar challenge. The complaint (full text) in State of California v. Azar. (ND CA, filed 5/21/2019) is discussed in this press release from the California Attorney General.

3rd Circuit Hears Arguments In Contraceptive Mandate Case

Yesterday the U.S. 3rd Circuit Court of Appeals heard oral arguments (audio of full arguments) in Commonwealth of Pennsylvania v. President of the United States. In the case, a Pennsylvania federal district court granted a nationwide preliminary injunction  against enforcement of the Interim Final Rules issued by the Trump Administration that expanded exemptions from the Affordable Care Act's contraceptive coverage mandate for those with religious or moral objections. (See prior posting.) Courthouse News Service reports on the oral arguments.

House Passes Equality Act To Ban LGBTQ Discrimination

The U.S. House of Representatives last Friday passed H.R. 5, the Equality Act (full text) by a vote of  236-173 (largely along party lines). The bill, which now goes to the Senate, amends various federal anti-discrimination laws to provide that the ban on sex discrimination includes sexual orientation and gender identity. Roll Call reports on the House action.

New Rules For Federal Workers' Comp Time To Make Up For Religious Observance

This month's issue of the Justice Department's publication Religious Freedom in Focus calls attention to rules adopted last month by the Office of Personnel Management allowing federal employees to earn compensatory time in order to take off from work on their religious days of rest.  The new rules, which implement 5 USC § 5550a, clarify prior more skeletal provisions that were previously in force. (Full text of Rules effective May 29, 2019).

Certiorari Denied In California Reparative Therapy Ban Challenge

The U.S.Supreme Court today denied review in Pickup v. Newsom, (Docket No. 18-1244, certiorari denied 5/20/2019). (Order List). In the case, the 9th Circuit Court of Appeals upheld the constitutionality of California's ban on state-licensed mental health providers engaging in sexual orientation change efforts with patients under 18. (See prior posting.)

Review Denied In Deportation of Iraqi Christian

The U.S. Supreme Court today denied review in Shabo v. Barr, (Docket No. 18-827, certiorari denied 5/20/2019). (Order List).  In the case, the U.S. 6th Circuit Court of Appeals refused to grant relief under the Convention Against Torture to an Iraqi in the United States who was being deported after serving 5 years in prison for a drug conviction.  Appellant claimed that as a Chaldean Christian he would be subject to torture if he returned to Iraq. National Law Journal reports on the case.

British Divorce Case Poses Catch-22 For Jewish Husband

The Daily Mail reported last week on arguments in Britain's Court of Appeal in a divorce case involving a Jewish couple in which the husband claims that the trial court's order creates problems under Jewish religious law.  In order to force the millionaire husband Alan Moher to grant his wife a Jewish bill of divorce, the trial court ordered that he pay maintenance of £1,850 per month until he grants his wife a Get. Moher argues however that a Get is invalid under Jewish law if it is not granted freely, and this means the maintenance order prevents him from providing a valid Get.  According to the husband's attorney:

The imposition of a financial sanction on a party, in a bid to force them to grant a Get, invalidates the Get under religious law.

[Thanks to Law & Religion UK for the lead.]

Florida Enacts New School Voucher Program [Corrected]

On May 10, Florida's Governor Ron DeSantis signed Senate Bill 7070 (full text) (legislative history).  Among other things, the bill creates a Family Empowerment Scholarship Program which offers school vouchers to students from low-income families.  The awards may be used at sectarian as well as non-sectarian private schools.  Reporting on the new law, Blog from the Capital points out that the Florida Supreme Court ruled a similar law unconstitutional in 2006.

FLDS Bishop Convicted By Canadian Court In Marriage of His Minor Daughter

In Regina v. Oler, (B.C. Sup. Ct., May 17, 2019), a British Columbia trial court found Fundamentalist Church of Jesus Christ of Latter-Day Saints (FLDS) Bishop James Oler guilty under Canadian Criminal Code §273.3(1)(b) of removing his 15-year old daughter from Canada for purposes of sexual exploitation. As summarized by the court:

The Crown alleges that upon receipt of instructions from Warren Jeffs on June 23, 2004, Mr. Oler facilitated the removal of his daughter C.E.O. from Canada and transported her together with others to Cedar City, Utah, on June 24, 2004, and then to Mesquite, Nevada where C.E.O. was married to James Leroy Johnson on June 25, 2004, by Warren Jeffs in the presence of Mr. Oler. In doing so, Mr. Oler foresaw that upon her marriage, C.E.O. would be the subject of sexual contact which, if it had occurred in Canada, would be prohibited by s. 153 of the Code.

Lethbridge News reports on the case.

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.