Pennsylvania Appeals Court Reverses Statute of Limitations Dismissal of Clergy Abuse Case

In Rice v. Diocese of Altoona-Johnstown, (PA Super., June 11, 2019), a 3-judge appellate panel allowed plaintiff, who was a victim of clergy sexual abuse in the 1970's and 1980's, to move ahead with her suit alleging that the Diocese and its bishops committed fraud, constructive fraud, and civil conspiracy to protect their reputations and that of her childhood priest and alleged abuser. She sued after a Pennsylvania grand jury report detailed clergy abuse.  The trial court dismissed on statute of limitations grounds. However the appeals court reversed holding that only a jury may determine whether, for purposes of tolling of the statute of limitations, plaintiff reasonably investigated the Diocesan Defendants for their intentional torts.  It also held that since the statute of limitations may be tolled by fraudulent concealment, the Church's silence may constitute fraudulent concealment when a jury finds that plaintiff had a fiduciary relationship with a religious institution or its leadership. The Pittsburgh Post-Gazette yesterday reported that the Diocese will seek en banc review.

Trump Speaks to Faith and Freedom Conference

President Trump yesterday spoke for an hour to those attending the Faith and Freedom Coalition “Road to Majority” 2019 Conference in Washington, D.C. (Full text of remarks.)  In his wide ranging comments on the accomplishments of his Administration, he said in part:

And we are once again defending and promoting our great American values.  And we’re saying, “Merry Christmas” again.  Do you notice?  Remember?  Remember?  (Applause.)   I usually save that for November, December, but I was just thinking — as I mentioned, I was saying, we’re going to say, “Merry Christmas.”  They were all taking it down off the department stores — everything.  You’d see a big red — they’d say, “Happy Holidays.”  No “Merry Christmas.”  They’re saying, “Merry Christmas,” again.  It’s very interesting.  And they’re proud of it.  (Applause.)...

And now, by the way, because of what we did with respect to the Johnson Amendment — you know what I’m talking about — our leaders, like all of the people that have been so supportive — our pastors, our ministers, our priests, our rabbis — all of our religious leaders — every — we’re allowed to speak again.  We’re allowed to talk without having to lose your tax exemption, your tax status, and being punished for speaking.  (Applause.)  And the people that we most want to hear, our great clergy, is now able to speak without fear of retribution....

We’re cherishing our nation’s religious heritage once again.  My administration has taken historic action to protect religious liberty. (Applause.)  We are protecting the conscience rights of doctors, and nurses, and teachers, and groups like the Little Sisters of the Poor.  We’re with them.  (Applause.)....

Americans’ belief in God has forged the character of our country and made our nation a light unto the world.  We are respected again as a nation, I will tell you that.  And I’m not only talking about from a religious standpoint.  Our country is respected again.  (Applause.)

Minnesota Diocese Settles With Abuse Victims In Bankruptcy Proceeding

The Diocese of New Ulm, Minnesota announced yesterday that along with area parishes it has reached a settlement in its bankruptcy proceeding with victims and survivors of sexual abuse.  The Diocese and area parishes, along with their insurance companies, will pay $34 million which will be distributed to claimants. The Diocese has also agreed to disclose the names of all clergy with credible claims of abuse against them. The eventual bankruptcy court order will bar all other claims that arose before confirmation of the plan of reorganization. AP reports on the settlement.

Survey Finds Increased Support for Religious-Based Refusals To Serve Small Business Customers

On Tuesday, the Public Religion Research Institute released the results of its survey finding increased public support for allowing small businesses to refuse service to various minority groups because of the business owner's religious views. (Full text of survey results.) The report finds 30% say it should be permissible to refuse service to gays or lesbians on religious grounds, while 29% say the same for refusals to serve transgender individuals. 24% support allowing refusal to serve atheists; 22% say this should be allowed as to Muslims.19% say it should be allowed as to Jews. 15% say small businesses should be able to refuse service to African-Americans if it conflicts with religious beliefs.

District Court, Citing 1st Circuit Precedent, Upholds Maine's School Funding Plan

In Carson v. Makin, (D ME, June 26, 2019), the Maine federal district court rejected a 1st Amendment challenge to Maine's program for paying tuition to private high schools for students in districts which do not operate their own high schools. The program excludes sectarian schools from participating. The district court approved Maine's plan on the basis of prior 1st Circuit decisions, despite challengers' argument that the Supreme Court's decision in Trinity Lutheran Church v. Comer should change the result. The district court said in part:

My decision not to decide the ultimate question the parties and amici pose—whether Trinity Lutheran has changed the outcome in Eulitt—is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court. In the First Circuit, the parties can argue their positions about how Trinity Lutheran affects Eulitt. I congratulate them on their written and oral arguments in this court. I hope that the rehearsal has given them good preparation for their argument in the First Circuit (and maybe even higher). My prompt decision allows them to proceed to the next level expeditiously.

(See prior related posting.) Maine Public Radio reports on the decision.

9th Circuit, Over Dissents, Denies En Banc Rehearing In Ministerial Exception Case

In Biel v. St. James School, (9th Cir., June 25, 2019), the U.S. 9th Circuit Court of Appeals denied a rehearing en banc in an ADA case brought by a 5th grade teacher at a Catholic elementary school. The panel, in a 2-1 decision, held that the teacher is not a "minister" for purposes of the ministerial exception doctrine. (See prior posting.)  Nine judges dissented from the denial of an en banc  rehearing in a 24-page opinion written by Judge Nelson, saying in part:

By declining to rehear this case en banc, our court embraces the narrowest construction of the First Amendment’s “ministerial exception” and splits from the consensus of our sister circuits that the employee’s ministerial function should be the key focus.

[Thanks to Jeff Pasek for the lead.] 

Workplace Hate Crime Meets Commerce Clause Threshold

In United States v. Hill, (4th Cir., June 13, 2019), the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that the federal Hate Crimes Prevention Act can constitutionally be applied to the assault of a co-worker who was preparing packages for interstate sale and shipment.  Defendant boastfully admitted to assaulting the coworker because of his sexual orientation. Finding that the commerce clause was broad enough to authorize federal coverage in this case, the majority said in part:

[W]hen Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interferes with or affects that activity.

Judge Agee dissented, arguing:

To allow Congress to exercise its Commerce Clause power over the noneconomic offense of a bias-motived punch would allow Congress to exercise its Commerce Clause power based on such indirect—and often, as here, non-existent—connection to commerce that it converts the Clause into a federal police power.

House Holds Hearing On "Do No Harm" Act

The U.S. House Education and Labor Committee held a hearing yesterday on H.R. 1450, the "Do No Harm" Act. The hearing was titled Do No Harm: Examining the Misapplication of the 'Religious Freedom Restoration Act'. A video of the full 3 hour and 45 minute hearing plus transcripts of the prepared testimony of the committee chairman and the witnesses are all available from the committee's website.   The Opening Statement by Committee Chairman Robert C. “Bobby” Scott reads in part"

The passage of RFRA was meant to re-instate a broader protection of free exercise rights. It was not meant to erode civil rights under the guise of religious freedom. Importantly, it did not change the First Amendment’s Establishment Clause, which ensures that the government cannot elevate certain religious or moral beliefs above the law.

No sooner than RFRA was enacted, the floodgates began to open and RFRA has since been used to: • Legitimize housing discrimination against single mothers and minorities, • Shield church groups from paying child abuse victims, and • Impose extreme emotional harm on schoolchildren based on their gender identity.

Since the beginning of the Trump administration, this troublesome trend has only gotten worse. On May 4th, 2017, the Trump administration issued an Executive Order, undermining RFRA’s original intent and allowing individuals to use 'conscience-based objections' to override civil rights protections....

We must pass legislation that restores RFRA’s original intent. H.R. 1450, the Do No Harm Act, would help ensure that our right to religious liberty does not threaten fundamental civil and legal rights.

Specifically, the bill would prevent RFRA from being used to deny: • Equal opportunity and protection against discriminatory laws; • Workplace protections and protections against child abuse; • Health care access, coverage, and services; and, • Contracted services.

Christian School Sues Over Exclusion From State Funding Programs

Suit was filed on Monday in a Maryland federal district court by a preschool- 8 Christian school that was excluded from Maryland's scholarship program for low-income students, as well as the state's textbook and technology and its aging schools programs.  The complaint (full text) in Bethel Ministries, Inc. v. Salmon, (D MD, filed 6/24/2019), alleges that the school does not discriminate in admissions on the basis of sexual orientation, but that it was nevertheless disqualified because of its policy on transgender students and on same-sex marriage.  According to the complaint:

50. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that marriage is the union of one man and one woman. 

51. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that biological sex as either male or female is an immutable gift from God, and therefore identify with, dress in accordance with, conduct themselves in keeping with, use the pronouns associated with, and use the facilities provided for, their biological sex....

53. Bethel’s conduct policy prohibits any communication of a sexual nature, such as identifying as the opposite sex, or expressing romantic attraction towards another student.

The school alleges that disqualifying it on this basis violates its 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

State Department Issues 2018 International Religious Freedom Report

On June 21, the U.S. State Department released its 2018 Report on International Religious Freedom, saying:

The annual Report to Congress on International Religious Freedom – the International Religious Freedom Report – describes the status of religious freedom in every country. The report covers government policies violating religious belief and practices of groups, religious denominations and individuals, and U.S. policies to promote religious freedom around the world. The U.S. Department of State submits the reports in accordance with the International Religious Freedom Act of 1998.

Universal Life Church Sues Over Tennessee Ban On Solemnization of Marriages By Those Ordained Online

In a press release, Universal Life Church Ministries announced that it filed suit in a Tennessee federal district court on June 21 challenging the constitutionality of an amendment to the Tennessee Code scheduled to go into effect on July 1. The new law (full text) prohibits individuals who have received online ordinations from solemnizing marriages in the state. The Universal Life Church Ministries  has ordained more than 20 million individuals worldwide during the past 40 years through its online ordination. The lawsuit, brought on behalf of three ministers in Tennessee, alleges violations of the 1st and 14th Amendments and Art. I Sec. 3 of the Tennessee Constitution.  In its press release, ULMC says in part:

In the year 1454, Johannes Gutenberg – after years of painstaking work and near financial ruin – changed the world forever when he utilized his brilliant new printing press to successfully print the Bible. This Earth-shattering technological innovation arguably marked one of the first steps in a long chain of events that would bring about the Protestant movement, and for the first time in centuries return the power of religion to common women and men. People were finally free to pray, read, learn, commune, and question in a manner of their choosing – and the world is better off for it.

Much like Johannes Gutenberg, the Universal Life Church Ministries argues that it has always embraced the remarkable power of technology to bring people together in a global spiritual community and to push the conversation forward in pursuit of ever-higher levels of enlightenment.

Supreme Court Says Ban on Immoral or Scandalous Trademarks Violates 1st Amendment

The U.S. Supreme Court today in Iancu v. Brunetti, (US Sup. Ct., June 24, 2019), held that the Lanham Act’s ban on registration of "immoral" or "scandalous" trademarks violates the First Amendment's free expression provisions.  The court's opinion written by Justice Kagan, and joined by Justices Thomas, Ginsburg, Alito, Gorsuch and Kavanaugh, concluded that the ban amounts to viewpoint discrimination.  In the case, the PTO had refused to register the trademark "FUCT" as the brand name for a line of clothing. Justice Kagan gave examples of the discriminatory manner in which the Act has been applied, including the following:

[T]he PTO refused to register trademarks associating religious references with products (AGNUS DEI for safes and MADONNA for wine) because they would be “offensive to most individuals of the Christian faith” and “shocking to the sense of propriety.” ... But once again, the PTO approved marks—PRAISE THE LORD for a game and JESUS DIED FOR YOU on clothing—whose message suggested religious faith rather than blasphemy or irreverence.

Justice Alito also filed a concurring opinion, stating in part:

Our decision does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas. The particular mark in question in this case could be denied registration under such a statute. The term suggested by that mark is not needed to express any idea and, in fact, as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary.

Three separate opinions dissenting in part were filed-- one by Chief Justice Roberts, one by Justice Breyer and one by Justice Sotomayor joined by Justice Breyer.  They all argued that while the ban on "immoral" trademarks violates the First Amendment, the ban on "scandalous" marks can be given a narrow construction that would save the provision. They contend it should be read to ban only obscene, vulgar or profane marks.  CNN reports on the decision.

Supreme Court Asks SG For Views On Catholic Diocese Pension Case

The U.S. Supreme Court today called for the Solicitor General to file a brief expressing the views of the United States in Archdiocese of San Juan v. Feliciano, (Docket No. 18-921). (Order List.)   The case poses the question of whether Puerto Rico courts can get to the assets of numerous related Catholic entities in Puerto Rico to satisfy pension obligations to Catholic school employees. The petition describes the question presented as: "Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability." Here is the SCOTUSblog case page for the case linking to all the filings in the case.

Factional Dispute In Ethiopian Orthodox Church Dismissed

In Ambellu v.  Re’ese Adbarat Debre Selam Kidist Mariam, (D DC, June 21, 2019), the D.C. federal district court dismissed a suit brought by former members of the Ethiopian Orthodox Tewhado Church alleging that a group of current members and priests conspired to take control of the Church through means that violate the Racketeer Influenced and Corrupt Organizations Act. The court held that the 1st Amendment precludes it from hearing the claim for intentional infliction of emotional distress, saying:

Whether someone may worship at a church is plainly a matter of ecclesiastical cognizance.

The court also dismissed complaints about the way dues money is spent, saying in part:

How a church spends worshippers’ contributions is, like the question of who may worship there, central to the exercise of religion. And placing its assets in trust for the Parishioners at the expense of the Current Leaders would constitute an impermissible judicial interference with the Church’s ability to make governance and spending decisions. Indeed, evaluating the Parishioners’ claims would require the Court to decide who is rightfully empowered to make financial decisions for the Church. The Free Exercise Clause requires that the Court to decline to do so.

The court held that while the 1st Amendment does not deprive it of jurisdiction over claims of fraud and breach of fiduciary duty, it held that plaintiffs had not adequately pleaded these claims.

Recent Articles of Interest

From SSRN:

• Joshua D. Dunlap, A Venerable Bulwark: Reaffirming the Primacy Approach to Interpreting the Free Exercise Clause in the Maine Declaration of Rights, (June 7, 2019).
• Steve Sanders, The Cultural Politics of Dan Quayle and Mike Pence, (Indiana Law Review, Vol. 52, No. 1, 2019).
• Anthony Gill, The Comparative Endurance and Efficiency of Religion: A Public Choice Approach, (June 6, 2019).
• Sohail Wahedi, Exporting the Revolution to Africa: The Nigerian Experience, (Law, Religion and Human Flourishing in Africa, in M. Christian Green (Ed.), 2019).
• Stephen Matthew Feldman, Having Your Cake and Eating It Too? Religious Freedom and LGBTQ Rights, 9 Wake Forest Journal of Law & Policy 35 (2018).
• Rafael Domingo, Why Spirituality Matters for Law: An Explanation, (June 14, 2019).
• Rivka Weill, Women’s and LGBTQ Social Movements and Constitutional Change -- On Geoffrey Stone’s Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century, (Jerusalem Review of Legal Studies, Forthcoming).
• Aaron Gordon, Establishment and Endorsement, (May 12, 2019).
• Jennifer Levi & Kevin M. Barry, Transgender Tropes & Constitutional Review , (Yale Law & Policy Review, Vol. 37, No. 589, 2019).
• Louis Cholden-Brown, The Reproductive Rights Charter, (University of Detroit Mercy Law Review, Forthcoming).
• Michael Quinlan, Born (Again) This Way: Why the Inherent Nature of Religiosity Requires a New Approach to Australia's Discrimination Laws, (from Augusto Zimmerman (ed) A Commitment To Excellence (Connor Court, 2018) 96-147).Ahmed Souaiaia, Hope Springs Eternal: Reforming Inheritance Law in Islamic Societies, (June 10, 2019).
• Adeel Hussain, Muslim Nationality in Late Colonial India: From Law to Sacrifice, (Pakistan Journal of Historical Studies (2018) Vol 3, no. 2).
• Marija Tesla, Hollow Promises in the Face of Slaughter: The Yazidi Genocide and the Path Toward Justice, (May 1, 2019).
• Rehana Anjum, An Introduction of Intellectual Property Rights in Islamic Law,(April 18, 2019).

From SmartCILP:

• Paul T. Babie & Arvind P. Bhanu, Freedom of Religion and Belief in India and Australia: An Introductory Comparative Assessment of Two Federal Constitutional Democracies, 39 Pace Law Review 1-41 (2018).
• Kelly Shackelford, Religious Liberty: An Update from the Frontlines, [Abstract], 23 Texas Review of Law & Politics 335-344 (2018-2019).

IRS Urged To Accommodate Amish On Child Tax Credit Claims

As required by the Internal Revenue Code, last week the National Taxpayer Advocate released her FY2020 Objectives Report to Congress.  One of the recommendations of the Report is that the IRS reconsider its position on the application of the Religious Freedom Restoration Act to the requirement that taxpayers include the Social Security Number for each child for which they claim a Child Tax Credit.  The requirement disadvantages members of the Amish community who often refuse, on religious grounds, to obtain Social Security numbers.

Specified Alabama Religious Schools and Church Can Create Their Own Police Forces

As reported last week by WBRC, Birmingham, Alabama's Briarwood Presbyterian Church has issued a press release expressing appreciation for the Governor's recent signing of HB 309 (full text) which adds Madison Academy  and Briarwood Presbyterian Church and its integrated auxiliary Briarwood Christian School to the list of colleges that can create their own police forces.  Both of the added schools are preK-12 Christian schools. According to MSN News, the Alabama ACLU is concerned that this could give the schools the ability to avoid reporting to outside authorities criminal activity that takes place on their premises. [Thanks to Tom Rutledge for the lead.]

Early Analysis of Supreme Court's Bladensburg Cross Ruling

Here are some early commentaries on yesterday's U.S. Supreme Court decision in American Legion v. American Humanist Association:

• Amy Howe, Justices Allow "Peace Cross" To Stand
• Harvey Weiner, The Cross May Stand, Though It Offends
• Ira Lupu and Robert Tuttle, A Splintered Court Leaves the Bladensburg Cross Intact
• Adam Bonin, Supreme Court Effectively Grandfathers In Most Older Religious Displays On Public Land

9th Circuit Lifts Injunctions On Title X Abortion Counseling Ban

In State of California v. Azar, (9th Cir., June 20, 2019), the U.S. 9th Circuit Court of Appeals granted a stay of the injunctions that had been issued by three district courts that had prevented Trump Administration regulations on family planning grants from going into effect. As described by the court:

Under the Final Rule, Title X grantees are prohibited from providing referrals for, and from engaging in activities that otherwise encourage or promote, abortion as a method of family planning.... Providers are required to refer pregnant women to a non-abortion prenatal care provider, and may also provide women with a list of other providers (which may not be composed of more abortion providers than non-abortion providers). 

Relying on a 1991 Supreme Court decision the 9th Circuit concluded that the Final Rule is a reasonable interpretation of Title X, and that two intervening laws did not change that conclusion. CBS News, reporting on the decision, points out that the new regulations also ban clinics that receive federal funds from sharing office space with abortion providers-- a provision apparently aimed at Planned Parenthood which says it will seek reconsideration of the decision by the 9th Circuit.

Court Rejects Free Exercise Defense To Infliction of Emotional Distress Claim

In Lawrence v. Treybig, (TX App., June 20, 2019), a Texas state appeals court affirmed a trial court jury's award of nominal damages and a permanent injunction against Arthur Lawrence who had been hired by a wealthy family as a basketball coach for their son, Cody Treybig, when he was nine years old. Lawrence remained in that position for six years during which time he convinced Cody of Lawrence's paranoid religious views:

Lawrence ... told Cody that Jimmy Treybig, Cody’s father, was a high-level member of an evil society called the Illuminati; that Cody’s school, his hometown of Austin, and colleges in general were full of evil Illuminati members; that the rapture was imminent; that Cody’s parents intended to have an RFID5 chip implanted into Cody’s body, which would damn him to hell; that the RFID chip would control Cody’s mind and would contain cyanide that could be used to kill him if he resisted; and that Cody’s parents and brother hated him and were evil.

In the suit against Lawrence for intentional infliction of emotional distress, the court rejected Lawrence's free exercise defense:

Lawrence argues that the jury could not determine whether his conduct was extreme and outrageous without weighing the veracity of his religious beliefs and that the trial court therefore should have dismissed Cody’s claims. However, whether Lawrence’s views are sincerely held or whether he believed that he was helping to save Cody from damnation is irrelevant under the facts of this case, in which Lawrence’s conduct, no matter its motivation, was extreme and outrageous.

The court affirmed the award of damages of $4 and an injunction barring Lawrence from coming within 1,000 feet of Cody or contacting Cody or his family.

Roy Moore To Run Again For Senate

Roy Moore, former Chief Justice of the Alabama Supreme Court, announced yesterday that he will once again run for the U.S. Senate seat from Alabama. CNN, reporting on Moore's announcement, said in part:

Moore has long been a controversial figure in the state. He was twice elected as Alabama chief justice but was removed both times, for installing a giant statue of the Ten Commandments in the state judicial building and for ordering lower court judges to refuse to marry same-sex couples.

"We have every right to recognize God," Moore said. "That'll be a main factor in my race."

Senate Republicans generally hope that Moore will be defeated in the Republican primary.

Supreme Court Allows Bladensburg Cross To Remain In Flurry of Opinions

The U.S. Supreme Court today, in a case generating seven separate opinions spanning 87 pages, rejected an Establishment Clause challenge to the 94-year old Bladensburg Cross that serves as a Veterans War Memorial on public land in Maryland.  In American Legion v. American Humanist Association, US Sup. Ct., June 20, 2019), Justice Alito delivered an opinion for the Court that was joined by Chief Justice Roberts and Justices Breyer, Kagan and Kavanaugh. As summarized by the Court's syllabus, the majority held:

At least four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. First, these cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult.... Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply.... Even if the monument’s original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. Third, the message of a monument, symbol, or practice may evolve.... Familiarity itself can become a reason for preservation. Fourth, when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality.

Another portion of Justice Alito's opinion was joined only by Chief Justice Roberts and Justices Breyer and Kavanaugh. They explicitly rejected the notion that the Lemon test should be applied to all Establishment Clause challenges, saying that instead the Court has sometimes used other approaches.

Justice Breyer filed a separate concurrence joined by Justice Kagan, saying:

The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I.... Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land.

Justice Kavanaugh wrote a concurring opinion in which he said that the majority was applying a "history and tradition" test.

Justice Kagan also filed a concurring opinion, explaining why the portions of Justice Alito's opinion which she did not join go too far in rejecting the Lemon test.

Justice Thomas filed an opinion concurring only in the judgment, and taking the position that the Establishment Clause applies only to the federal government and is not incorporated by the 14th Amendment to apply to the states. He went on to contend that even if the Establishment Clause does apply to the states, the Bladensburg Cross is constitutional.

Justice Gorsuch wrote a separate opinion concurring in the judgment, joined by Justice Thomas.  He argues that the American Humanist Association lacks standing, and rejects the "offended observer" theory of standing.

Justice Ginsburg, joined by Justice Sotomayor, wrote a 20-page dissent, saying in part:

As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content....

The Commission urges in defense of its monument that the Latin cross “is not merely a reaffirmation of Christian beliefs”; rather, “when used in the context of a war memorial,” the cross becomes “a universal symbol of the sacrifices of those who fought and died.”... The Commission’s “[a]ttempts to secularize what is unquestionably a sacred [symbol] defy credibility and disserve people of faith.”

AP reports on the decision. SCOTUSblog has further analysis of the decision.

Judicial Oversight of FLDS Land Trust Ended

According to AP, a Utah state court judge on Tuesday agreed to end the 14-year judicial oversight of the United Effort Plan Trust that holds property of members of the polygamous FLDS Church. The Trust has resold over 200 homes and buildings to former FLDS members. Those seeking continued judicial oversight say that favoritism is shown by the community board that determines who may purchase property from the Trust. (See prior related posting.)

Senate Confirms Controversial Nominee For Texas Federal Court Seat

As reported by Bloomberg Law, the U.S. Senate yesterday confirmed the nomination of Matthew Kacsmaryk for a seat on the U.S. District Court for Northern District of Texas by a vote of 52-46. The controversy surrounding Kacsmaryk's nominations is summarized by Courthouse News:

Kacsmaryk has since 2014 served as deputy general counsel at the First Liberty Institute, a legal group that offers free representation to people raising religious liberty claims in court....

His time at the group has put him at the center of several high-profile clashes between gay rights and religious liberty, which has become an increasing flashpoint in federal courts in recent years.

This includes work on the case of a couple that owns a bakery in Oregon and refused to make a custom cake for a same-sex wedding.

Christian Music Teacher Sues Over School's Transgender Policy

A former music teacher in a Brownsburg, Indiana school has sued the school claiming failure to accommodate his religious beliefs as required by Title VII of the 1964 Civil Rights Act as well as violation of his 1st and 14th Amendment rights.  The complaint (full text) in Kluge v. Brownsburg Community School Corp., (SD IN, filed 6/18.2019), alleges that plaintiff, John Kluge, is a Christian whose religious beliefs include the belief that it is sinful to promote transgender behavior. He was forced to resign because of his refusal to comply with school policy requiring that he use transgender students' preferred names. For a while the school provided an accommodation that allowed him to address all students only by their last names, but that concession was then withdrawn. The suit seeks an injunction to bar enforcement of the school's policy, as well as back pay for plaintiff. Indiana Lawyer reports on the lawsuit.

Former Scientology Adherent Sues Claiming False Imprisonment, Human Trafficking and More

A lawsuit was filed on Tuesday in a California state trial court against the Church of Scientology and its leader David Miscavige by a woman who was born to Scientologist parents and escaped the organization only as an adult.  The complaint (full text) in Doe v. Church of Scientology International, (Los Angeles Super. Ct., filed 6/18/2019), alleges causes of action for false imprisonment, kidnapping, stalking, defamation, invasion of privacy, infliction of emotional distress, human trafficking, violations of California's labor laws, and fraud. The complaint alleges in part:

The Church of Scientology presents a façade to the outside world to disguise what in reality is nothing more than a cult built on mind control and destruction of the independence and self-control of those drawn into its sphere. Scientology and its leaders use religious rhetoric to lure trusting and unsuspecting individuals seeking to better themselves into its corporations. Once in CSI, members are isolated from the outside world, their access to information is heavily monitored and controlled, and they are subject to physical, verbal, psychological, emotional and/or sexual abuse and/or assault. Their assets are also targeted by CSI, which calibrates its member services according to the wealth of each member.

NBC News reports on the lawsuit.

Tony Perkins Elected USCIRF Chair

On Monday, the U.S. Commission on International Religious Freedom elected Tony Perkins as Chair for the 2019-2020 term. (Press release.) Perkins, an ordained minister, has served as the president of the Family Research Council. (Full bio.)

FFRF Foregoes Cert Petition In Challenge To Parsonage Allowance

In a press release last week, the Freedom From Religion Foundation explained why it had not sought Supreme Court review of the 7th Circuit's decision in Gaylor v. Mnuchin.  In the case, the circuit court rejected an Establishment Clause challenge to Internal Revenue Code Sec. 107(2) which excludes from taxable income housing allowances paid to members of the clergy. (See prior posting.)  FFRF said in part:

After “counting heads,” we concluded that any decision from the current court would put the kibosh on challenging the housing allowance for several generations.

We began this challenge years ago, when the composition of the Supreme Court was very different. We have (secular) faith that someday the Supreme Court composition will again favor the Establishment Clause and be willing to scrutinize this preferential code and declare it unconstitutional. By ending our challenge at this time, the Freedom From Religion Foundation is making it possible for another challenge to be taken in the future, and we hope to be part of that.

Church That Is Potential Trust Beneficiary Lacks Standing To Seek Independent Trustee

In In re Trust of Mary Baker Eddy, (NH Sup. Ct., June 14, 2019), held that a Christian Science church in Australia that is a potential beneficiary of a trust created under the will of Christian Science founder Mary Baker Eddy lacks standing to seek the appointment of an independent trustee. The New Hampshire Supreme Court concluded that the Australian congregation failed to show that it had a sufficient special interest in the trust to create standing. Sentinel & Enterprise News reports on the decision.

Parents Ask Court To Bar Publication of Data On Vaccination Rates In Individual Schools

Suit was filed last week in a Connecticut state trial court to prohibit the state Department of Public Health from continuing to post information on vaccination rates in individual schools. The complaint (full text) in Festa v. State of Connecticut Department of Public Health, (CT Super. Ct., filed 6/12/2019), says that publication of the information has led to "hateful and vitriolic statements regarding nonvaccinated students and parents" appearing on the Internet, creating mental and emotional distress to plaintiffs. Plaintiffs are parents of a student in a private school for children with autism and have claimed a religious exemption from vaccination.  Connecticut Mirror reports on the lawsuit.

Quebec Enacts Ban On Public Employees Wearing Religious Symbols

On June 16 in Canada, Quebec's Parliament passed and the Lieutenant Governor signed (legislative history) Bill 21 (full text as introduced; adopted amendments), a controversial law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. However it prohibits any other accommodations from being granted under the law. The new law also requires an extensive list of public employees to carry out their functions with their face uncovered. It also requires persons who seek public services to present themselves with their face uncovered if necessary for identification or security. Parliament invoked the "notwithstanding clause" of the Canadian Constitution to prevent constitutional challenges.

The new law additionally sets out broader principles of secularism for the province:

CHAPTER I: AFFIRMATION OF THE LAICITY OF THE STATE

1. The State of Québec is a lay State.

2. The laicity of the State is based on the following principles: (1) the separation of State and religions; (2) the religious neutrality of the State; (3) the equality of all citizens; and (4) freedom of conscience and freedom of religion.

The new law also amends Sec. 9.1 of Quebec's Charter of Human Rights and Freedoms to  to add "State laicity" as one of the permissible factors to consider in limiting freedoms.  Montreal Gazette reports on the legislation. Chatelaine summarizes the new law and its enactment:

After a long debate, the bill was passed at 10:30 p.m. on June 16 with support from the Parti Québécois. The Quebec Liberal Party and Québec Solidaire voted against the bill. Bill 21 formally bans teachers, police officers, judges and many others from wearing items like hijabs, turbans, kippas, and crucifixes in the course of their duties. It also doubles down on pre-existing legislation that requires citizens to uncover their faces when accessing public services like municipal transit and the legal system.

One day after the law was enacted, the National Council of Canadian Muslims and the Canadian Civil Liberties Union filed suit to declare the law invalid and to obtain an interim order staying its operation while the litigation is pending.  The complaint (full text) in Hak v. Attorney General of Quebec, (Quebec Super. Ct., file 6/17/2019), contends that the law exceeds the powers of the province, is impermissibly vague and contravenes the "internal architecture" of the Canadian Constitution. CTV News reports on the lawsuit.

Suit By Purchasers of Former PTL Club Properties May Move Forward

MorningStar Fellowship Church v. York County South Carolina, (D SC, June 17, 2019), involves a dispute between a South Carolina county and a large Christian evangelical church that had purchased properties once owned by PTL Club's Jim and Tammy Faye Bakker.  Jim Bakker resigned in the wake of a sexual scandal and was ultimately convicted and imprisoned for fraud. (Background.)  Plaintiff, MorningStar Fellowship, claims that the county prevented it from completing development of an $11 million building, known as the Tower, because of religious animus against the former owners, the Bakkers.  The development agreement between the county and MorningStar Fellowship called for demolition of the Tower if performance and payment bonds were not obtained within 180 days of approval of the site plan for the development. MoruningStar Claims that the county concealed its approval of the site plan in order to create a default.

The court dismissed on statute of limitations grounds MorningStar's claim for damages flowing from violation of its free exercise, due process and equal protection rights. However the court allowed plaintiff to move ahead on claims under the South Carolina constitution and the South Carolina Religious Freedom Act. It also allowed plaintiff to amend its complaint to add substantial burden and discrimination claims under the federal Religious Land Use and Institutionalized Persons Act.

Certiorari Denied In Contraceptive Mandate Case

The U.S. Supreme Court today denied review in Little Sisters of the Poor v. California, (Docket No. 18-1192, certiorari denied 6/17/2019). (Order List).  In the case, the U.S. 9th Circuit Court of Appeals in a 2-1 decision affirmed in part a preliminary injunction issued by a California federal district court against enforcement of the Trump Administration's Interim Final Rules expanding religious and moral exemptions to the Affordable Care Act Contraceptive Coverage Mandate. (See prior posting.) The Interim Rules have now been replaced by Final Rules. (See prior posting.)

Supreme Court Vacates and Remands Same-Sex Wedding Cake Case

The U.S. Supreme Court today granted certiorari, vacated the judgment of the Oregon Court of Appeals and remanded for further consideration the case of Klein v. Bureau of Labor & Industries, (Docket No. 18-547, 6/17/2019). (Order List). In the case, the Oregon Court of Appeals agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. (See prior posting.)  The Supreme Court ordered reconsideration in light of its decision in Masterpiece Cakeshop last year.

Recent Articles of Interest

From SSRN:

• Reuben Guttman, Religion and Regulation, (Emory Corporate Governance and Accountability Review, Issue 6 Vol I (2019).
• John M. Breen & Lee J. Strang, Academic Freedom and the Catholic University: An Historical Review, a Conceptual Analysis, and a Prescriptive Proposal, (University of St. Thomas Law Journal, Vol. 15, No. 2, 2019).
• Andrew M. Koppelman, This Isn’t About You: A Comment on Smith’s Pagans and Christians in the City, (56 San Diego Law Review 393 (2019)).
• Nicholas Aroney, Can Australian Law Better Protect Freedom of Religion?, (Australian Law Journal, Vol. 19 (2019)).
• Elizabeth Sepper & Jessica L. Roberts, Sex, Religion, and Politics, or the Future of Healthcare Antidiscrimination Law, (19 Marquette Benefits & Soc. Welfare L. Rev. 217 (2018)).
• Sohail Wahedi, Freedom of Religion and Living Together, (California Western International Law Journal, Vol. 49, No. 2, 2019).
• Perry Dane, Ironies in the City: Reflections on Stephen Smith's Pagans and Christians in the City, (Journal of Catholic Legal Studies, 2019).
• Tally Kritzman-Amir & Java Ramji-Nogales, Nationality Bans, (University of Illinois Law Review, Vol. 2019, No. 2, 2019).
• Raphael Cohen-Almagor, Racism and Hate Speech – A Critique of Scanlon’s Contractual Theory, (First Amendment Studies, 2019).
• Elizabeth Bartholet, Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection, (Forthcoming, Arizona Law Review, Vol. 62, No. 1, 2020).
• Melanie Kalmanson & Riley Erin Fredrick, Finding Abortion in Equality After Obergefell, (New York University Journal of Legislation and Public Policy, Vol. 22, No. 2, 2019).
• Florence Ashley, Don’t Be So Hateful — The Insufficiency of Anti-Discrimination and Hate Crime Laws in Improving Trans Wellbeing, ((2018) University of Toronto Law Journal, 68(1), pp. 1–36).

From SSRN (Islam and Islamic Law)::

• Nikos Koumoutzis & Chrisroa Papastylianos, Human Rights Issues Arising from the Implementation of Sharia Law on the Minority of Western Thrace—ECtHR Molla Sali v. Greece, Application No. 20452/14, 19 December 2018 (May 24, 2019). Religions 2019, 10, 300).
• Akinyemi Akinniyi, Islamic Identity, (May 6, 2019).
• Leti Volpp, Protecting the Nation from 'Honor Killings': The Construction of a Problem, 34 Constitutional Commentary 133 (2019).
• Darin Johnson, The Problem of the Terror Non-State: Rescuing International Law from ISIS and Boko Haram, (Brooklyn Law Review , Vol. 84, No. 2, 2019).
• Dr. Ahmad Shaikh, In the Modern Culture the Protection of Women’s Rights and the Islamic Shariah Rules: A Critical Analysis, (April 29, 2019).
• Engy Abdelkader, The Victimization of Muslim American Women and the Challenges of Imperial Feminism in Comparative Context, (Oxford University Press (2020 Forthcoming)).
• Muhammad Ahmad, The Hanafi Legal Theory: Some Significant Issues, (Peshawar Islamicus, Vol. 8, Issue 2 (2017), pp 1-14).

From SmartCILP:

• Lawrence G. Sager & Nelson Tebbe, The Reality Principle, 34 Constitutional Commentary 171-192 (2019).
• Jonathan R. Cohen, Lawyers Serving Gods, Visible and Invisible, (53 Gonzaga Law Review 187-206 (2017/18).
• Lorraine K. Bannai, Korematsu Overruled? Far From It: The Supreme Court Reloads the Loaded Weapon, 16 Seattle Journal for Social Justice 897-911 (2018).
• Religious Freedom: Liberty, Legislation, and Litigation. Introduction by Student Symposium Editors Emily Gait, Stefani Roman; articles by Charlotte Garden, Michael A. Helfand, Adrienne Fulco, Christopher C. Lund. 50 Connecticut Law Review 849-985 (2018).
• Allan W. Vestal. Removing State Constitution Badges of Inferiority, 22 Lewis & Clark Law Review 1151-1198 (2018).
• Patrick J. McNulty & Joseph F. Moser, Absolution for Opting Out of the Contraception Mandate: Substantial Burden Gone Awry, 67 Drake Law Review 89-136 (2019).
• Samuel J. Levine, The Constitution as Poetry, 49 Seton Hall Law Review 737-754 (2019).
• Monastic Governance in South and Southeast Asia. Introduction by Ben Schonthal; articles by Matthew Walton, Aung Tun, Monica Lindberg Falk, Hiroko Kawanami, Ben Schonthal, Thomas Borchert, Susan M. Darlington, Michael R. Chladek, Gregory Kourilsky, Patrice Ladwig. 3 Buddhism Law &. Society 1-242 (2017-2018).

German Court Rejects City's Ban On"Burkini"

Breibart News today reports:

The ban on the sharia-compliant swimwear known as the “burkini” has been overturned by the higher administrative court in the German federal state of Rhineland-Palatinate after a judge decided the ban violated the constitution.

The ban originated in the city of Koblenz and began on the 1st of January but was challenged by a Syrian asylum seeker who claimed that she required the swimwear for religious reasons and also needed to use the swimming pool because she suffers from back problems...

 According to the Higher Administrative Court, the ban violated the German constitution’s requirement for equal treatment. The city had argued that the burkini made it impossible to know whether or not those wearing them suffered from any hygienic issues or diseases....

Suit In Canada Seeks To Move Election Day To Avoid Jewish Holiday

A lawsuit was filed last week in federal court in Canada seeking to move the upcoming federal election from Oct. 21 to Oct. 28.  According to Vos Iz Neias:

Shemini Atzeret comes out this year on Election Day, Oct. 21, which would prevent observant Jews from casting their ballots. Of the four advance polling days, three are on other Jewish holidays or Shabbat....

Chani Aryeh-Bain, the Conservative Party candidate for the Toronto-area district of Eglington-Lawrence, and voter Ira Walfish of York Centre, also a Toronto-area district, filed the suit claiming that the election date discriminates against observant Canadian Jews.

Aryeh-Bain is an observant Jew and therefore would not be able to campaign on Election Day, the lawsuit says....

[Thanks to Steven H Sholk for the lead.]

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.]