Recent Articles of Interest

From SSRN:

• Kristina Michelle Campbell, Sanctuary, Temporary Protected Status, and Catholic Social Teaching, (University of Detroit Mercy Law Review, Vol. 96, No. 1, 2018).
• Thea Raymond-Sidel, I Saw the Sign: NIFLA v. Becerra and Informed Consent to Abortion, (Columbia Law Review, Vol. 119, No. 8, 2019).
• Robert Kahn, The Long Road Back to Skokie: Returning the First Amendment to Mask Wearers, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 19-14 (2019)).
• Robert Leckey, ‘Repugnant’: Homosexuality and Criminal Family Law, (University of Toronto Law Journal, Forthcoming).
• Ayako Hatano, Can Strategic Human Rights Litigation Complement Social Movement? - A Case Study of the Movement against Racism and Hate Speech in Japan, (May 1, 2019).
• Shahnawaz Ahmed Malik, Minority Rights Protection in India; From Sachar Committee Recommendations to Mob Lynching, (Review Of Research Journal, 2018).
• Muhammad Munir, Multiplying Zeroes: (In)Validity of Promises in Marriage Contracts under Pakistani Case Law, (LUMS Law Journal, Vol. 6 (2019), pp. 1-14).

State Department Sanctions Two Russians For Persecution of Jehovah's Witnesses

Last week the State Department publicly designated two investigative officials in Russia's western Siberian city of Surgut as ineligible to enter the United States because of their involvement in persecution of Jehovah's Witnesses.  The State Department's press release said in part:

The Department is publicly designating Vladimir Petrovich Yermolayev, the Head of the Investigative Committee in the city of Surgut, Russia, and Stepan Vladimirovich Tkach, Senior Investigator at the Investigative Committee of Surgut, Russia, under Section 7031(c) of the FY2019 Department of State, Foreign Operations, and Related Programs Appropriations Act, due to their involvement in gross violations of human rights.  Section 7031(c) provides that, in cases where the Secretary of State has credible information that foreign officials have been involved in significant corruption or a gross violation of human rights, those individuals and their immediate family members are ineligible for entry into the United States.

... On February 15, 2019, officers of the Surgut Investigative Committee, led by Yermolayev and Tkach, subjected at least seven Jehovah’s Witnesses to suffocation, electric shocks, and severe beatings during interrogation at the Committee’s headquarters.  This brutality stands in marked contrast to the peaceful practices of the Jehovah’s Witnesses who have been criminally prosecuted for their religious beliefs in Russia since a 2017 Supreme Court decision affirming their wrongful designation as an “extremist organization.”

California Legislature Tells Clergy How To Treat LGBTQ Community

On September 9, the California legislature gave final passage to Assembly Concurrent Resolution 99  which calls on Californians-- and particularly its religious leaders-- to treat members of the LGBT community with greater respect.  The Resolution reads in part:

WHEREAS, The stigma associated with being LGBTQ often created by groups in society, including therapists and religious groups, has caused disproportionately high rates of suicide, attempted suicide, depression, rejection, and isolation amongst LGBTQ and questioning individuals; and...

WHEREAS, In a pluralistic society, people differing along spectrums of political and religious perspectives share a common responsibility of protecting the health and well-being of all children and vulnerable communities; now, therefore, be it...

Resolved, That the Legislature calls upon religious leaders to counsel on LGBTQ matters from a place of love, compassion, and knowledge of the psychological and other harms of conversion therapy; and be it further

Resolved, That in addressing the stigma often associated with persons who identify as LGBTQ, we call on the people of California–especially its counselors, pastors, religious workers, educators, and legislators–and the institutions of California with great moral influence–especially its churches, universities, colleges, and other schools, counseling centers, activist groups, and religious centers–to model equitable treatment of all people of the state....

Christian Post reports on the Concurrent Resolution.

Canadian Court Says Assisted Suicide Law Is Unconstitutionally Restrictive

In Truchon v. Procureur General du Canada, (Quebec Superior Ct., Sept. 11, 2019) [opinion in French], a Quebec trial court judge held that portions of the Canadian and of Quebec's assisted suicide laws are unconstitutional because they are too restrictive. As summarized by Canadian Press:

Justice Christine Baudouin found in favour of two Quebecers struck by incurable degenerative diseases who'd argued they were denied a medically assisted death under laws that are discriminatory.

Baudouin ruled invalid the Criminal Code requirement that a natural death be "reasonably foreseeable" before someone can be eligible for assisted death. The condition has prevented some people from accessing the end-of-life procedure. She also invalidated a section of the Quebec law that says people must "be at the end of life."

But the court granted an exemption to Truchon and Gladu [the plaintiffs], allowing them to seek medical aid in dying during this period if they satisfy other conditions in the law.

New York City To Make A Strategic Retreat On Its Broad Conversion Therapy Ban

As previously reported, in January the Christian advocacy organization Alliance Defending Freedom filed suit in a New York federal district court challenging New York City's broad ban on conversion therapy.  The city's ban, unlike bans in other jurisdictions, covers provision of conversion therapy to adults as well as minors. ADF filed the suit on behalf of an Orthodox Jewish physician, almost all of whose patients are Orthodox Jews. Now, according to yesterday's New York Times, New York City Council, with the support of LGBT activists, is about to repeal its ban.  The move is an attempt to prevent decisions from the Second Circuit or the U.S. Supreme Court that could give constitutional protection to conversion therapy. The gay speaker of City Council, Corey Johnson, was to introduce the repeal measure yesterday. Conversion therapy for minors will remain illegal under a New York state ban. (See prior posting.)

Texans Sue Under the "Save Chick-fil-A" Law

As previously reported, in June Texas Gov. Greg Abbott signed a bill 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. The law was aimed at San Antonio's exclusion of Chick-fil-A from operating at the San Antonio's airport.  The restaurant chain has been criticized for its contributions to organizations that oppose same-sex marriage. Last week, five Texas residents filed suit in a state trial court under the new law seeking an injunction to prevent the city from continuing to exclude Chick-fil-A from the airport. The complaint (full text) in Von Dohlen v. City of San Antonio, (TX Dist. Ct., filed 9/5/2019), alleges in part:

The law of Texas prohibits governmental entities from taking “adverse action” against corporations based on their contributions to a religious organization. See Texas Gov’t Code § 2400.002. The City of San Antonio is violating this statutory command by excluding Chick-fil-A from the San Antonio airport on account of its donations to Christian organizations such as the Salvation Army and the Fellowship of Christian Athletes. 

20. For years, liberal activists have been attacking Chick-fil-A because it gives money to Christian organizations that accept the Bible as the Word of God.

21. Because these Bible-believing Christian organizations derive their notions of morality from the Bible rather than modern-day cultural fads, they oppose homosexual behavior and same-sex marriage.

San Antonio Family Association issued a press release announcing the filing of the lawsuit.

Virginia School Board Expands Non-Discrimination Policy

The Stafford County, Virginia school board yesterday voted 4-3 to update its anti-discrimination policy to cover discrimination on the basis of race, color, national origin, political affiliation, religion, sex, pregnancy, childbirth or related medical conditions, marital status, mental or physical disability, genetic information, sexual orientation, gender identity, or any other characteristic prohibited by state and/or federal law. (Full text of updated policy). As reported by Shareblue Media, the expanded policy resulted from the school's handling of an active shooter drill last year. While other students were sent to wait in their locker rooms, the transgender student was left to wait in the gym because staff did not know which locker room to assign her to.

Cert. Filed In Florist's Refusal To Provide Same-Sex Wedding Flowers

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Arlene's Flowers, Inc. v. State of Washington, (Sup. Ct., cert. filed 9/11/2019).  In the long-running case, 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. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Michigan City Adopts Ban on Conversion Therapy For Minors

The City of East Lansing on Tuesday passed an ordinance banning provision to minors of conversion therapy relating to sexual orientation or gender identity.  The City Council vote of approval was 3-2, after amendments to the version as proposed were adopted.  The original proposal and a video of City Council meeting including discussion and amendments are available on the city's website. Fox47 News reports on the passage of the ordinance.

Indian Tribe Sues Over Exclusion From Committee Dealing With Ancestors' Remains

A lawsuit was filed yesterday in a Texas federal district court by a non-federally recognized Indian tribe against Texas officials involved in redevelopment of the Alamo complex complaining about the tribe's exclusion from a committee dealing with human remains found at the site. Plaintiffs say their ancestors are among those buried there, and some of the tribes allowed on the committee are responsible for the deaths of those buried in the cemetery.

The complaint (full text) in Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., (WD TX, filed 9/10/2019), contends that requirements of the San Antonio's zoning laws that refer to the National Historic Preservation Act are not being followed in dealing with a cemetery on the redevelopment site. Instead authorities are applying the Native American Grave Protection Act which excludes non-recognized tribes. The complaint alleges in part:

Defendants are ignoring the City of San Antonio’s Unified Development Code and arbitrarily applying NAGPRA for the purpose of excluding the Plaintiffs and other lineal descendants from participation. The reason for this is obvious, the Defendants are planning to conduct their archaeological activities in a manner that violates local, state and federal laws in an attempt to reduce cost and time.

Plaintiffs also complain that they were denied use of the Alamo Chapel for their annual Sunrise Memorial Ceremony. Courthouse News Service reports on the lawsuit.

Ann Arbor Concedes Narrow View of Public Accommodation

Last week, the city of Ann Arbor, Michigan settled a suit brought by a conservative political consulting and marketing firm challenging the city's attempt to apply its public accommodation law to the firm. Ann Arbor Code § 9:151(22) defines a public accommodation as including:

[A] business or other facility of any kind, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold or otherwise made available to the public....

The Stipulated Dismissal (full text) in ThinkRight Strategies, LLC v. City of Ann Arbor, (ED MI, filed 9/5/2019), asserts that:

While ThinkRight advertises to and receives requests for its services from the general public, ThinkRight will not fulfill any request if doing so involves promoting messages, views, policies, platforms, or causes contrary to ThinkRight’s conservative or religious principles.

The city of Ann Arbor conceded:

Ann Arbor does not consider ThinkRight to be a place of public accommodation as defined by Ann Arbor Code § 9:151(22).That is because ThinkRight will only provide its services in ways that promote, or are not contrary to, its conservative political beliefs and therefore limits the platforms, views, policies, causes, events, or messages it will convey or promote through its services.

ADF issued a press release announcing the settlement.

Recent Articles of Interest

From SSRN:

• Hashika Durai & K. Niranjana, A Study on Religious Laws and Religious Crimes in India, (August 26, 2019).
• Cyra Akila Choudhury, Reflections on the Christchurch Massacre: Incorporating a Critique of Islamophobia and TWAIL, (TWAILR: Reflections - 9/2019).
• Perry Dane, Echad: A D’var Torah on Parshat Vaetchanan, (August 17, 2019).
• Mark Kelman, What is in a Name?, (Taxation and Regulation Across Constitutional Domains (Carolina Academic Press, 2019)).
• Richard W. Garnett, The Communitarian Work and Vision(s) of Robert Cochran (and Thomas Shaffer), (Pepperdine Law Review, Vol. 46, 2019).
• Thomas Charles Berg, Religious Freedom and the Common Good: A Summary of Arguments and Issues, (15 University of St. Thomas Law Journal 517 (2019)).
• Etienne Wain, The Blessing of Same Gender Relationships in the Anglican Church of Aotearoa New Zealand and Polynesia: A Mixed Blessing?, (Victoria University of Wellington Legal Research Paper (Sept. 2019)).
• Khaled Beydoun, The Ban and the Borderlands Within: The Travel Ban As a Domestic War on Terror Tool, (Stanford Law Review, Vol. 71, 2019).
• Shahnawaz Ahmed Malik, Minority Rights Protection in India; From Sachar Committee Recommendations to Mob Lynching, (Review Of Research Journal, 2018).
• Douglas NeJaime, The Constitution of Parenthood, (Stanford Law Review, Vol. 72, Forthcoming).

From SmartCILP:

• L. Darnell Weeden, A Functional Free Exercise Clause Analysis Requires a State To Prove a Compelling Interest Before Interfering With an Individual's Faith-Based Same-Sex Marriage Participation Objections, [Abstract], 18 Appalachian Journal of Law 113-150 (2018-2019).
• Rabea Benhalim, The Case for American Muslim Arbitration, [Abstract], 2019 Wisconsin Law Review 531-591.

Prof's Objections To Referring To Students By Preferred Gender Rejected

In Meriwether v. Trustees of Shawnee State University, (SD OH, Sept. 5, 2019), an Ohio federal magistrate judge recommended dismissing challenges brought by a faculty member against his university claiming that the school's nondiscrimination policy violates his 1st and 14th Amendment rights as well as his rights under the state constitution.  Shawnee State requires faculty to refer to students using pronouns that reflect the student's gender identity even when that is different that the gender assigned to the student at birth. Plaintiff alleges that he is an evangelical Christian with the religious belief that gender cannot be changed after the moment of conception. He contends that the University's policy forces him to communicate an ideological message regarding gender that conflicts with his beliefs. Among other things, the judge in a 63-page opinion, rejected plaintiff's compelled speech, viewpoint discrimination and free exercise claims. [Thanks to Glenn Katon for the lead.]

Former Priest Charged With Lying To FBI

The U.S. Attorney's Office for the Eastern District of Pennsylvania announced yesterday that it has charged former Catholic priest Robert Brennan with four counts of making false statements in order to  obstruct an investigation into complaints that he sexually abused a child when he was serving as a priest in Philadelphia. AP reports on the indictment. State criminal charges against Brennan had been dropped after his alleged victim died in 2013 of a drug overdose.

Procedures For Inclusion On Terrorist Watch List Are Unconstitutional

In Elhady v. Kable, (ED VA, Sept. 4, 2019), a Virginia federal district court held that the procedures for including individuals in the U.S. government's Terrorist Screening Data Base ("Watchlist") violate plaintiffs' constitutional rights. The court held that plaintiffs' liberty interests are implicated by their inclusion in the Terrorist Watch List, and the process used to place a person on the list poses a substantial risk of erroneous deprivation of their rights to domestic and international travel, as well as interference with their reputational interests. RNS reporting on the decision notes that the case was brought by CAIR on behalf of 23 Muslim U.S. citizens who say they were wrongly placed on the list.

Doctor Sues Over Hospital's Limits On Providing Aid-In-Dying Medications

Last month, a doctor and her terminally ill patient filed a lawsuit in a Colorado state court against Centura Health's St. Anthony Hospital challenging its religion-based policy of refusing to allow its physicians to prescribe medication for patients under the state's End of Life Options Act, or to assist in qualifying a patient for use of aid-in-dying medication. The complaint (full text) in Mahoney v. Morris, (CO Dist. Ct., filed 8/21/2019), alleges that the hospital's policy goes beyond the opt-out permitted by the Colorado statute which only permits hospitals to bar their physicians from writing prescriptions for assisted-suicide medications that will be used on hospital premises.

Last week, Centura Health fired plaintiff Dr. Barbara Morris, and filed a petition to remove the case to federal court, contending that the hospital, sponsored by Catholic and Seventh Day Adventist ministries, cannot be barred from dismissing an employee who violates its policy.  The Notice of Removal (full text) in Mahoney v. Morris, (D CO, filed 8/30/19) alleges that the hospital's rights under the Free Exercise and Establishment clauses would be violated if it cannot discipline its doctors for acting in opposition to its religious doctrines. It also invokes 42 U.S. Code § 2000e–1, the exemption from Title VII for religious institutions. Kaiser Health News reports on these developments. [Thanks to Michael Peabody for the lead.]

Ecclesiastical Abstention Doctrine Prevents Decision On Church Demolition

In Friends to Restore St. Mary's, LLC v. Church of St. Mary, Melrose, (MN App., Sept. 3, 2019), a Minnesota state appellate court held that the ecclesiastical abstention doctrine precludes a civil court from adjudicating a dispute over whether an arson-damaged church building is a “historical resource” protected under Minnesota Environmental Rights Act.  Plaintiffs sought an injunction to prevent demolition of the church building after the Bishop and the Diocesan Building Council recommended demolition and building of a new structure. The court concluded:

On the record before us, the decision to remove features of religious significance and demolish the church building is an internal decision that affects the faith and mission of the church. Appellant’s MERA claim cannot be adjudicated without violating the ecclesiastical abstention doctrine.

British Appeals Court Upholds Order For Payments Until A "Get" Is Granted

In Moher v. Moher, (EWCA, Aug. 21, 2019), Britain's Court of Appeal upheld an order issued by a trial court in a divorce action requiring the husband to pay £22,000 per year until the husband granted the wife a get (Jewish divorce decree). British statutes specifically allow courts to order that the civil divorce decree will not become final until the marriage has been dissolved under Jewish law. The appeals court concluded that this does not prevent other types of orders directed at obtaining a get. The appeals court pointed out that "a Get obtained by compulsion is invalid in Jewish law," but concluded that:

the structure of the order in the present case does not compel the husband to act in a certain way. The court order provides only that until he grants a Get he has to pay periodical payments to the wife.

Family Law Week reports on the decision.

City's Special Events Ordinance Partly Upheld

In Shook v. City of Lincolnton, NC, (WD NC, Aug.29, 2019). a North Carolina federal district court agreed with only part of a challenge by a group of Christian street preachers to a city's Special Event and Unnecessary Noise Ordinances. the court said in part:

[T]he Court will grant Plaintiff’s preliminary injunction [as to] the portion of the Special Events Ordinance prohibiting “[a]ny conduct deemed to be disruptive . . . to participants or attendees of the special event” and “[a]busive . . . language that disrupts a special event or festival.” However, the City may still enforce the ... [ban on] "language ... that abuses or threatens another person in a manner likely to cause a fight or brawl at a special event or festival,” “... conduct deemed to be ... dangerous to participants or attendees of the special event,” and “threatening language that disrupts a special event or festival.”

The court also upheld the city's Unnecessary Noise ban.

Ecclesiastical Abstention Doctrine Requires Dismissal of Pastor's Contract Claim

In In re First Christian Methodist Evangelistic Church, (TX App., Aug. 30, 2019), a Texas state appellate court held that the ecclesiastical abstention doctrine, as a matter of constitutional law, prevented civil courts from adjudicating a pastor's claim that he was entitled to 6 months severance pay under his employment contract. The court said in part:

[T]o determine if the Church was required to pay the Senior Pastor severance under the contract, the trial court will be required to determine why the Senior Pastor was terminated and, if the termination was for misconduct, the court will be required to determine if the Senior Pastor was properly terminated for misconduct as defined by the Church’s Book of Discipline and ecclesiastical rules.... The ecclesiastical nature of the dispute cannot be severed from the contractual issues asserted by the Senior Pastor. 

County Settles Suit Over Invocation Policy

According to yesterday's Carroll County Times, the Carroll County, Maryland, Board of Commissioners voted unanimously yesterday to settle a lawsuit, originally filed in 2013, challenging the Commissioners' policy on invocations.  Prayers that were often sectarian were delivered by members of the County Commission, on a rotating basis, rather than by invited clergy or a chaplain.  The Commissioners decided to settle the case after the 2017 decision by the U.S. 4th Circuit Court of Appeals in Lund v. Rowan County, North Carolina finding a similar practice unconstitutional. (See prior posting.) At yesterday's Board meeting, a number of citizens objected to the settlement.

Pence To American Legion:VA Hospitals Will Not Be "Religion-Free Zones"

On Wednesday, Vice President Mike Pence addressed the American Legion's National Convention in Indianapolis (full text of remarks). Among the accomplishments of the Trump Administration which Pence reviewed in his 35-minute speech, was the following:

You might’ve heard even today that there’s a lawsuit to remove a Bible that was carried in World War II from a Missing Man Table at a VA hospital in New Hampshire.  There’s a lawsuit underway.  It’s really no surprise because, under the last administration, VA hospitals were removing Bibles and even banning Christmas carols in an effort to be politically correct.  But let me be clear: Under this administration, VA hospitals will not be religion-free zones.  (Applause.)

We will always respect the freedom of religion of every veteran of every faith.  And my message to the New Hampshire VA hospital is: The Bible stays.  (Applause.)

Pence ended his speech thanking veterans, alluding to language from Psalm 18 and Psalm 144 in doing so:

As the Psalmist wrote, you “trained your hands for war,” and we thank Him who gave you the grace “to advance against a troop” and come home safe to serve all of those who also serve.

Baptist Leader Sued In Myanmar Over Meeting With Trump

According to The Irrawaddy, in Myanmar a member of the military's northern command stationed in Kachin province filed a lawsuit Monday in the Myitkyina Township Court against a Baptist pastor for his remarks at a White House meeting. In July, Kachin Baptist Convention President Rev. Dr. Hkalam Samson attended a U.S. State Department meeting of victims of religious persecution from around the world. As part of the event, he and others met with President Donald Trump in the Oval Office.  Irrawaddy reports:

The legal complaint cites a live broadcast of the conversation between the religious leader and the US president on the Facebook page of World News Now....

... Samson told Trump there was no religious freedom in Myanmar and that oppression and torture were still common in the country, where fighting between ethnic armed organizations and the Myanmar military continues despite a return to civilian rule. 

He also requested Trump support Myanmar’s transition to “genuine” democracy and federalism. 

... Samson also thanked the US for imposing sanctions against Myanmar military commander-in-chief Senior-General Min Aung Hlaing and other leaders over extrajudicial killings of Rohingya Muslims. The sanctions bar the officers from entry to the US.

New Jersey Assisted Suicide Law Reinstated By Appeals Court

In Glassman v. Grewal, (NJ App.,  Aug. 27, 2019), a New Jersey state appeals court lifted the temporary restraining order entered by a trial courtearlier this month (see prior posting) preventing the state's Aid in Dying for the Terminally Ill Act from being enforced.The appeals court said in part:

Here, plaintiff failed to establish that injunctive relief was necessary to prevent irreparable harm and preserve the status quo.... The only harm identified by the court was the Executive Branch's failure to adopt enabling regulations. Neither the court nor plaintiff, however, identified how the absence of such regulations harmed him, irreparably or otherwise.... 

Further, as the Act makes clear, participation by physicians like plaintiff is entirely voluntary. The only requirement the Act imposes on health care providers who, based upon religious or other moral bases, voluntarily decide not to treat a fully-informed, terminally-ill patient interested in ending their lives, is to transfer any medical records to the new provider selected by the patient. See N.J.S.A. 26:16-17(c). We fail to discern how the administrative function of transferring those documents constitutes a matter of constitutional import, or an act contrary to a physician's professional obligations. In this regard, we note that a physician has long been required to transfer a patient's records on request, see N.J.A.C. 13:35-6.5, and does so without personal assent to any subsequent medical procedures.

A few hours later, the New Jersey Supreme Court refused to vacate the appeals court decision. (Full text of Supreme Court Order.) NorthJersey.com reports on the decisions.

9th Circuit: FLDS Towns Discriminated Against Non-Church Members

In United States v. Town of Colorado City, Arizona, (9th Cir., Aug. 26, 2019), the U.S. 9th Circuit Court of Appeals upheld an injunction issued by an Arizona federal district court, finding that the FLDS-controlled town of Colorado City engaged in a pattern or practice of discriminating against non-members of the Fundamentalist Latter Day Saints.  In affirming a finding that the city violated 34 U.S.C. § 12601, the court concluded that the statute imposes liability on governments for patterns of unconstitutional conduct by their officers and agents.  In the suit, the United States charged that Colorado City (as well Hildale, Utah) "functioned as an arm of the Church and conspired with FLDS leaders to use the Towns’ municipal resources to advance Church interests." AP reports on the decision.

Suit Challenges North Carolina County's Refusal To Recognize Marriages Performed By Universal Life Clergy

Suit was filed this week in a North Carolina federal district court challenging the refusal by the Cleveland County, North Carolina marriage official to issue marriage licenses to couples whose weddings were performed by Universal Life Church (ULC) ministers. ULC ordains anyone "who feels the call" as a minister. Ordination takes place online for free and credentials are sent to applicants by mail. North Carolina Gen. Stat. §51-1 allows "an ordained minister of any religious denomination to officiate at weddings.  The complaint (full text) in Universal Life Church Monastery Storehouse v. Harnage, (WD NC, filed 8/26/2019), alleges violation of the Establishment, Equal Protection and Free exercise clauses, as well as of Art. VI and of the North Carolina constitution, saying in part:

Defendant’s apparent policy of refusing to recognize the validity of marriages performed by ULC Monastery ministers officially prefers certain religions or religious denominations over ULC Monastery by allowing other religious leaders to solemnize marriages but declining to extend that same benefit to ULC Monastery ministers.

Charlotte Observer reports on the lawsuit.

Part of Missouri's New Abortion Law Is Preliminarily Enjoined

In Reproductive Health Services of Planned Parenthood of the St. Louis Region, Inc. v. Parson, (WD MO, Aug. 28, 2019), a Missouri federal district court granted a preliminary injunction against enforcement of provisions in Missouri law (full text) that wold have gone into effect today that would have banned all abortions (except in cases of medical emergencies) after 8, 14, 18 or 20 weeks of pregnancy. The court ultimately refused to enjoin another section of Missouri's law that bans any abortion if the provider knows that the woman is seeking the abortion because of the sex or race of the child or because of a prenatal diagnosis of Down Syndrome. The court held that while such provisions as they apply to non-viable fetuses are likely unconstitutional, plaintiffs have not shown that a preliminary injunction pending final resolution of the issue is necessary to prevent some demonstrable real-life harm. NPR reports on the decision.

Suit Challenges Illinois Waiver Form To Allow Drivers License Photo With Head Covering

Suit was filed this week in an Illinois federal district court on behalf of a Muslim woman who wears a hijab challenging the disclaimer that Illinois administrative rules require to be filed in order to allow a driver's license photo to be taken wearing a head covering. The complaint (full text) in Bicksler v. Illinois Secretary of State, (ND IL, filed 8/26/2019),contends that plaintiff's free exercise rights under the 1st Amendment and Illinois' Religious Freedom Restoration Act and the Illinois Human Rights Act were violated when she was required to sign this statement:

In observation of my religious convictions, I only remove my head dressing in public when removal is necessary (such as for a medical examination or a visit to a hair dresser or barber). I do not remove the head dressing in public as a matter of courtesy or protocol (such as when entering a professional office or attending a worship service). I acknowledge that if the Director of the Driver Services Department is provided with evidence showing I do not wear a religious head dressing at all times while in public, unless circumstances require the removal of the head dressing, my driver’s license or identification card may be canceled.

CAIR Chicago issued a press release announcing the filing of the lawsuit.

Nuclear Protesters' RFRA Defense Rejected

In United States v. Kelly, (SD GA, Aug. 26, 2019), a Georgia federal district court refused to dismiss indictments against seven Catholics who are members of the Plowshares Movement, an activist group opposed to nuclear weapons.  Defendants were indicted for trespass and destruction of government property after they broke into a highly secured Naval Submarine Base and in protest of nuclear weapons poured blood on the ground, hung banners and painted messages. Defendants contended that their actions were protected by the Religious Freedom Restoration Act. The court said:

Because Defendants' actions at Kings Bay were exercises of their sincerely held religious beliefs that they should "take action in opposition to the presence of nuclear weapons at Kings Bay,"... Defendants' actions at Kings Bay were engaged in for religious reasons and were thus "religious exercises" within the meaning of RFRA....

It went on, however:

The government has established that it has compelling interests in the safety of those on Kings Bay Naval Submarine Base, the security of the government assets housed there, and the smooth operation of the base.

NY Court Rejects Challenge To Vaccination Exemption Repeal

In F.F. on behalf of her minor children v. State of New York, (Albany Cty. Sup. Ct., Aug. 23, 2019), a New York state trial court judge rejected a class action challenge to recently enacted New York legislation that repeals the religious exemption to vaccination requirements for school children. The repeal was enacted in response to a measles outbreak earlier this year. The suit was brought by 55 families. The court refused to issue a preliminary injunction, finding that plaintiffs were unlikely to prevail on the merits of their free exercise, equal protection or compelled speech claims. The court concluded that the vaccination law was a neutral law of general applicability, and that the repeal was not action showing hostility to religious belief. The court concluded that plaintiffs did have a colorable argument that elevated scrutiny might be required under the hybrid rights theory, but that even if that is the case the state had a compelling interest in repealing the exemption:

Protecting public health, and children's health in particular, through attainment of threshold inoculation levels for community immunity from communicable diseases is unquestionably a compelling state interest....

Gothamist reports on the decision. (See prior related posting.)

Suit By Mennonite Group Over Lockers For Homeless Is Settled

The Rocky Mountain Collegian yesterday reported on the settlement of a lawsuit brought by the Fort Collins Mennonite Fellowship against the city of Fort Collins after City Council added restrictions on the Fellowship's locker program for the homeless.  The city limited the hours of operation and required constant supervision of the lockers during those hours.  The Fellowship sued claiming that the restrictions are unreasonable, vague, overly burdensome and prevent the church from practicing its religious obligation of helping those less fortunate. According to the paper's report, a negotiated settlement has been reached, but must still be approved by City Council at its Sept. 3 meeting:

The City will pay a negotiated amount of $60,000 to FCMF’s lawyers to cover some of the costs incurred during the lawsuit.

As for the locker program, access hours are expanded to 6 a.m. to 9 p.m., and a church representative no longer has to supervise during all hours of operation. Lockers will still be physically restricted outside those hours, but guests may access their belongings if a church representative unlocks the lockers for them. 

The church’s surveillance camera, installed early on in the program, will continue running 24/7. Footage will be retained for seven days.

Israel's Courts Wrestle With Sex-Segregated Cultural Events

In Israel, the controversy over gender-segregated events sponsored by municipalities continues. Times of Israel reports that on Sunday a Haifa district court ordered cancellation of a performance by ultra-Orthodox singers Mordechai Ben David and Motty Steinmetz which was to be open only to men. The ruling came in a suit filed by a women's rights group.  The court said in part:

The ultra-Orthodox public in Haifa is entitled to funding for cultural activities like every other public group, but when it comes to public money, there is a need to act in accordance with instructions from the attorney general and the government. It’s important to remember that in regards to the entrance to public places, there is a law that forbids discrimination in products, services and entrances to entertainment venues and public areas, 

Earlier this month, the High Court of Justice banned a similar sex-segregated performance in the city of Afula, but its ruling came too late to actually prevent the performance from going ahead. In response to the Afula case, Israel's Attorney General Avichai Mandelblit provided guidance on when municipal authorities can organize gender-segregated cultural events.  As reported separately by Times of Israel:

Mandelblit published guidelines for authorities saying that gender-segregation could be permissible if the separation were voluntary and desired by the target audience, men and women had equal conditions, and separation did not unduly impact those opposed to it.

“The greater the voluntary component, the less the difficulty in gender segregation, and when it comes to a completely voluntary segregation in which every person chooses his place without being directed, there is no difficulty,” Mandelblit said.

Amicus Briefs In SCOTUS Gay and Transgender Title VII Discrimination Cases Now Available

Dozens of amicus briefs have been filed with the U.S. Supreme Court and are now available from the SCOTUSblog case page in R.G. & G.R. Harris Funeral Homes, Inc. v. EEOC. At issue is whether Title VII of the 1964 Civil Rightts Act prohibits discrimination against transgender people based on their transgender status or on a "sex stereotyping" theory.  The 6th Circuit held that discrimination on the basis of transgender status violates Title VII. (See prior posting.) the Supreme Court will hear oral arguments in the case on Oct. 8.

Similarly, numerous amicus briefs are available in Bostock v. Clayton County, Georgia, (consolidated with Altitude Express, Inc. v. Zarda) which will also be argued on Oct. 8. These cases raise the question of whether Title VII prohibits sexual orientation discrimination. The 2nd Circuit in Altitude Express  held that Title VII does cover such discrimination. (See prior posting.) In the Clayton County case, the 11th Circuit held that Title VII does not ban sexual orientation discrimination.

RLUIPA Allows Inmate To Grow Fist-Length Beard

In Sims v. Inch, (ND FL, Aug. 23, 2019), a Florida federal district court, in a 19-page opinion, extended the U.S. Supreme Court's 2015 holding in Holt v. Hobbs which allowed a Muslim inmate to grow a half-inch beard for religious reasons.  In the case decided last week, the district court held that RLUIPA similarly entitles a Muslim prisoner to grow a fist-length beard (and trim his mustache) when his religious requires it. The court concluded that "a fist-length beard can be accommodated as easily as a half-inch beard-- or nearly so." [Thanks to Glenn Katon for the lead.]

Recent Articles of Interest

From SSRN:

• Ashutosh A. Bhagwat, The Conscience of the Baker: Religion and Compelled Speech, (William & Mary Bill of Rights Journal, Forthcoming).
• Tipu Makhdoom, Politics of Religion in Pakistani Law, (January 1, 2016).
• Nancy J. Knauer, The Politics of Eradication and the Future of LGBT Rights, (Georgetown Journal of Gender and the Law, Vol. 21, No. 2, 2020).
• Elizabeth Katz, 'Racial and Religious Democracy': Identity and Equality at Mid-Century, Stanford Law Review, Forthcoming.
• Christian Lee Gonzalez Rivera, A Government by Men, Not Nature: A Natural Law Case for Limits on the Judicial Enforcement of Natural Law and Unenumerated Rights under the Constitution, 24 Trinity L. Rev. 1 (2019).
• Robert J. Miller, Nazi Germany and American Indians, (August 14, 2019).

From SmartCILP:

• Steven K. Green. The "Irrelevance" of Church-State Separation In the Twenty-First Century, [Abstract], 69 Syracuse Law Review 27-68 (2019).
• Mark Strasser, Masterpiece of Misdirection?, 76 Washington & Lee Law Review 963-1010 (2019).

From Academia.edu:

• Studia Gilsoniana, The State, Law, Religion, and Justice in Cicero’s The Republic and The Laws: An Aristotelian-Thomistic Interpretation, (Studia Gilsoniana 8, no. 3 (July –September 2019): 645 –680.
• Zachary Purvis, Religion, Revolution, and the Dangers of Demagogues: The Basel "Troubles" (Wirren) and the Politics of Protestantism, 1830-1833, (Church History 88, no. 2 (June 2019): 409–439, 2019).

8th Circuit Vindicates Wedding Videograhers' 1st Amendment Claims

In Telescope Media Group v. Lucero, (8th Cir., Aug. 23, 2019), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, held that the 1st Amendment protects wedding videographers who refuse on religious grounds to produce videos of same-sex weddings. Minnesota contended that the refusal violates two provisions of Minnesota's Human Rights Act.  Judge Stras, writing for the majority, said in part:

Minnesota’s interpretation of the MHRA interferes with the Larsens’ speech in two overlapping ways. First, it compels the Larsens to speak favorably about same-sex marriage if they choose to speak favorably about opposite-sex marriage. Second, it operates as a content-based regulation of their speech....

Laws that compel speech or regulate it based on its content are subject to strict scrutiny....

... [R]egulating speech because it is discriminatory or offensive is not a compelling state interest, however hurtful the speech may be.

The majority also concluded that because the state's action burdens religiously motivated speech, the hybrid rights doctrine requires strict scrutiny. The majority remanded the case to the district court for it to decide whether the videographers are entitled to a preliminary injunction.

Judge Kelley dissenting, said in part:

 ... [T]he court tries to recharacterize Minnesota’s law as a content-based regulation of speech, asserting that it forces the Larsens to speak and to convey a message with which they disagree. Neither is true. The Larsens remain free to communicate any message they desire—about same-sex marriage or any other topic—or no message at all. What they cannot do is operate a public accommodation that serves customers of one sexual orientation but not others. And make no mistake, that is what today’s decision affords them license to do.

Reuters reports on the decision.

Kentucky Supreme Court Hears Oral Arguments On Refusal To Print Pride Festival T-Shirts

On Friday, the Kentucky Supreme Court heard oral arguments (video of full arguments) in Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals.  In the case, the Kentucky Court of Appeals concluded that a business which prints customized T-shirts was not in violation of a county's public accommodation law when it refused because of religious beliefs to print T-shirts for a local LGBT Pride Festival. (See prior posting.) WFPL News reports on yesterday's oral arguments. [Thanks to Tom Rutledge for the lead.]

3rd Circuit Upholds Pennsylvania Legislative Prayer Policy

In Fields v. Speaker of the Pennsylvania House of Representatives, (3d Cir., Aug. 23, 2019), the U.S. 3rd Circuit Court of appeals, in a 2-1 decision, upheld the invocation policy of the Pennsylvania House of Representatives.  The state's legislative chamber invites guest chaplains to open sessions with prayer, but excludes non-theists.  It also posts a sign asking visitors to rise during the prayer.  Judge Ambro, writing for the majority said in part:

A group of nontheists have challenged the theists-only policy under the Establishment, Free Exercise, Free Speech, and Equal Protection Clauses of our Constitution. As to the Establishment Clause, we uphold the policy because only theistic prayer can satisfy the historical purpose of appealing for divine guidance in lawmaking, the basis for the Supreme Court taking as a given that prayer presumes a higher power. For the Free Exercise, Free Speech, and Equal Protection Clauses, we hold that legislative prayer is government speech not open to attack via those channels.

The nontheists also challenge as unconstitutionally coercive the requests to “please rise” for the prayer. We hold that the single incident involving pressure from a security guard is moot. As for the sign outside the House chamber and the Speaker’s introductory request that guests “please rise,” we hold that these are not coercive.

Judge Restrepo, dissenting as to the exclusion of non-theists, said in part:

[B]y virtue of the fact that the history and tradition of legislative prayer in this country is thus devoid of any history of purposeful exclusion of persons from serving as chaplains based on their religions or religious beliefs, the Pennsylvania House’s guest-chaplain policy—which purposefully excludes adherents of Plaintiffs’ religions and persons who hold Plaintiffs’ religious beliefs from serving as guest chaplains—does not fit “within the tradition long followed in Congress and the state legislatures” and therefore violates the Establishment Clause.

[Thanks to Adam Bonin for the lead.]

6th Circuit Decides 2 Cases Growing Out of Kim Davis' Marriage License Refusals

In Ermold v. Davis, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals held that sovereign immunity protects former Rowan County, Kentucky Clerk Kim Davis, and her successor in office, from suit for damages in their official capacity. However, the court went on, Davis may still be sued in her individual capacity, and she is not entitled to qualified immunity in that suit. The case grew out of the widely-publicized refusal of Davis to issue marriage licenses to same-sex couples, even after the U.S. Supreme Court's Obergefell decision. (See prior posting.) Two same-sex couples who were denied marriage licenses sued.

The 3-judge panel split 2-1 in their analysis of why Davis was not entitled to qualified immunity.  Judge Griffin, joined by Judge White, held that Obergefell clearly established a right for same-sex marriage and eliminated the need to use a tiers-of-scrutiny analysis in cases such as this.  Judge Bush held that a tiers-of-scrutiny analysis should be used, but that Davis' conduct does not survive even rational basis review.

In a related case, Miller v. Caudill, (6th Cir., Aug. 23, 2019), the U.S. 6th Circuit Court of Appeals affirmed the award of $222,695 in attorneys' fees to several same-sex couples who had obtained a preliminary injunction against Davis' policy, but litigated no further after Davis' deputy clerks agreed to issue the licenses.  The 6th Circuit concluded that plaintiffs qualified as a "prevailing party" entitled to attorneys' fees under 42 USC §1988, and that these fees should be paid by the state of Kentucky rather than Rowan County.  The Court said in part:

A win is a win—regardless of whether the winner runs up the score. To prevail, then, plaintiffs didn’t need to obtain duplicative relief in every form that they originally sought it. They wanted the opportunity to obtain marriage licenses in Rowan County, and the preliminary injunction gave them exactly that.

Louisville Courier Journal reports on this decision. [Thanks to Tom Rutledge for the lead.]

Deputy Sheriff Sues Over Refusal To Accommodate His Practice of the "Billy Graham Rule"

Christianity Today reports on a federal lawsuit filed last month by a deputy sheriff who was fired after he refused to train a female deputy because it would require him to spend significant amounts of time alone with her in his patrol car.  The suit, filed on July 31 in the Eastern District of North Carolina, says that deputy Manuel Torres, a Baptist deacon, practices the so-called "Billy Graham Rule" under which he will not be alone with a member of the opposite sex except for his wife.

First International Day For Victims of Anti-Religious Violence

Yesterday was the International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief, as created by a United Nations Resolution (full text) adopted earlier this year. The U.S. Commission on International Religious Freedom issued a statement (full text), saying in part:

Commemorating victims of violence based on religion or belief is critical, but that’s only the beginning of the world’s work to achieve justice for the survivors of past tragedies, like the genocide of Yazidis, Christians and Shi’a Muslims in Iraq by ISIS...

Hung Jury In Pro-Life Tax Objector's Trial

KGW8 News reports that the federal court trial of an Oregon man, Michael Bowman, on misdemeanor charges of willful failure to file a tax return has ended in a mistrial.  Bowman has not filed a return since 1999 because he refuses to have any of his funds go toward funding abortions. Charges were filed against him in 2017. Bowman argues that the 1st Amendment, RFRA and the Oregon Constitution protect his decision on religious grounds to refuse to pay taxes. A jury could not reach a verdict after 11 hours of deliberation.

Challenge To California Order Requiring Health Plan Abortion Coverage Is Unsuccessful

In Missionary Guadalupanas of the Holy Spirit, Inc. v. Rouillard, (CA Ct. App., Aug. 6, 2019), a California state appellate court held that the state's Department of Managed Health Care did not violate the state Administrative Procedure Act when it notified seven health care service plans that they must cover abortions. The state statute does not require compliance with the rule-making process for a  regulation "that embodies the only legally tenable interpretation of a provision of law." A California statute requires insurance plans to cover "basic health care services." The court said in part:

We hold that an abortion is one of two medically necessary options for the treatment of a woman’s pregnancy. A pregnant patient may elect medical services necessary to deliver a baby, or to terminate the pregnancy. Because California law guarantees every woman the right to choose whether to bear a child or obtain an abortion, the only legally tenable interpretation of the law is that abortions are basic health care services, which health care service plans are required to cover.

This case did not present a question of whether requiring abortion coverage violates the religious freedom rights of the Catholic organization filing suit. Los Angeles Times reports on the decision.

9th Circuit Dismisses Suit After Prison Recognizes Humanism As Faith Group

In Espinosa v. Dzurenda,  (9th Cir., Aug. 22, 2019), the U.S. 9th Circuit Court of Appeals dismisse as moot a challenge to a prison’s failure to recognize Humanism as a Faith Group. While the appeal was pending, the prison changed its policy and permanently recognized Humanism on an equal basis with other faith groups.  Nevada Independent reports on the decision.

38 Abuse Victims Sue Over Yeshiva University High School's Failure To Supervise

Relying on New York's Child Victims Act which has created a one-year window for old child sex abuse cases to be filed, 38 men filed a lawsuit today against Yeshiva University High School and its parent organization, Yeshiva University, as well as various administrators of the schools. The suit alleges repeated sexual molestation of plaintiffs by a high administrator (who eventually became principal), a Judaic studies faculty member and a dorm counselor. The 120-page complaint (full text) in Twersky v. Yeshiva University, (NY Cty. Sup. Ct., filed 8/22/2019) alleges that the schools and their administrators were negligent in supervising and retaining the abusers, and in failing to provide a safe and secure environment for students. The Forward, reporting on the case, notes that a similar suit filed before enactment of the Child Victims Act was dismissed on statute of limitations grounds in 2014.

Catholic High School Sues Over Restrictions On Athletic Field Use

A Madison, Wisconsin Catholic high school has filed suit challenging the manner in which the city's zoning code is being applied to the school.  The complaint (full text) in Edgewood High School of the Sacred Heart, Inc. v. City of Madison, Wisconsin, (WD WI, filed 8/21/2019), alleges violations of RLUIPA as well as various other federal, state and local constitutional and statutory provisions. Because a master plan filed by the school in connection with the renovation of its athletic field stated that it would be used for team practices and physical education classes, zoning authorities contend that it cannot be used for athletic contests, even though the field had been used for nearly a century to host such games. The complaint alleges:

All of the City’s public high schools and the University of Wisconsin-Madison share the same zoning classification as Edgewood, yet the City is imposing these restrictions on Edgewood alone....

The City has treated Edgewood on less than equal terms with the non-religious institutions located and operating within the City’s Campus-Institutional District. 

 Wisconsin State Journal, reporting on the case, explains:

Edgewood’s attorneys have contended that [the master plan] wasn’t meant to be an exhaustive list of uses, while residents have suggested games were intentionally left out to allay neighbors frustrated with the increased use of the field since it was upgraded in 2015.

Residents of the surrounding Dudgeon-Monroe neighborhood have organized against Edgewood’s attempts to bring further improvements to the field — especially a 2017 plan that would have added stadium seating, lights, a sound system and permanent bathrooms — arguing that the field disrupts their quiet neighborhood. Many put signs in their yard reading, “No new stadium.”

3rd Circuit: Abortion Clinic Buffer Zone Challenge Remanded For Trial

In Turco v. City of Englewood, New Jersey, (3d Cir., Aug. 19, 2019), the U.S. 3rd Circuit Court of Appeals held that neither side was entitled to summary judgment in a challenge to Englewood's ordinance creating an 8-foot buffer zone around abortion clinics. The ordinance was enacted in response to aggressive anti-abortion protests that regularly occurred outside one clinic. In reversing the district court's grant of summary judgment to plaintiff and remanding the case for further proceedings, the appeals court said in part:

This record contains a multitude of contradicting factual assertions. Some facts suggest that the buffer zones imposed a significant restraint on the plaintiff’s ability to engage in constitutionally-protected communication. Others support Englewood’s position that the buffer zones hardly affected plaintiff’s ability to reach her intended audience. Some facts support plaintiff’s argument that the City had foregone less restrictive options to address the chaotic environment outside of the clinic. Others show that Englewood considered these options and reasonably rejected them or found them to be ineffective. In short, the record does not conclusively demonstrate that either party is entitled to summary judgment on the narrow tailoring claim.

North Jersey Record reports on the decision. [Thanks to Tom Rutledge for the lead.]

Cardinal Pell's Conviction Upheld

In Australia, the Victoria Court of Appeal has affirmed the conviction of Cardinal George Pell for sexual offenses.  The court has published a summary of the judgment in Pell v. The Queen, (Victoria Ct. App., Aug. 21, 2019) indicating that the court , by a 2-1 vote, dismissed the appeal. (Case page.) The court's summary says in part:

Cardinal Pell’s conviction and this appeal have attracted widespread attention, both in Australia and beyond. He is a senior figure in the Catholic Church and is internationally well known. As the trial judge, Chief Judge Kidd, commented when sentencing Cardinal Pell, there has been vigorous and sometimes emotional criticism of the Cardinal and he has been publicly vilified in some sections of the community. There has also been strong public support for the Cardinal by others. Indeed, it is fair to say that his case has divided the community.

Catholic News Service reports on the decision.

Author's Suit Against Libraries and Media Is Dismissed

In Egli v. Chester County Library System, (ED PA, Aug. 12, 2019), a Pennsylvania federal district court dismissed a pro se lawsuit brought by the author of a book on anti-Semitism against several libraries, and radio and television stations.  The libraries refused plaintiff's offer to present book talks, and the media defendants refused to interview him on air. The court said in part:

Libraries are not required to accommodate every book or proposed talk, but instead must determine based on their professional judgment which materials are deemed to have “requisite and appropriate quality” to occupy the limited space available. There is nothing in the Complaint to suggest that either MCLS or CCLS had policies or customs that are inconsistent with this constitutionally permissible discretion or that target certain viewpoints.

Pennsylvania Record reports on the decision.

Rules On Tribal Possession of Eagle Remains Are Liberalized

The U.S. Fish and Wildlife Service announced last week that it has revised its policy on handling of bald and golden eagle remains found on lands of recognized Indian tribes. Under previous rules, the remains would be transferred to the National Eagle Repository.  Now, federally recognized tribes that wish to keep eagle remains found on their land will be able to do so once they report the find to law enforcement officials and officials determine that the eagle was not taken intentionally and does not pose human health risks:

Under the updated policy, a federally recognized Tribe must receive a permit prior to possessing eagle remains found within Indian Country. When a Tribal member or an employee of a federally recognized Tribe discovers eagle remains, he or she must report it immediately to Tribal or Service law enforcement officials.

Eagle remains found and reported may be eligible for return to the federally recognized Tribe for religious purposes after the Service completes any activities it deems necessary for law enforcement or for scientific management reasons.

Salt Lake Tribune reports on the rule change.

California Priest Sues Accusers In Defamation Lawsuit

A defamation lawsuit was filed earlier this month in a California state trial court by Fresno, California, Catholic priest Msgr. Craig Harrison who has been accused of sexually assaulting an altar boy, as well as of other sexual misconduct. The complaint (full text) in Harrison v. Roman Catholic Faithful, Inc., (CA Super. Ct., filed 8//6/2019), alleges that the organization Roman Catholic Faithful and its president Stephen Brady at a press conference falsely accused Harrison of sexually abusing two high school students. An investigation by the Bakersfield police department has cleared Harrison, but a press release from the organization Church Militant contends that the investigation ignored numerous witnesses against Harrison who has served as the police department's chaplain.

Suit Over Use of Civic Center For Religious Worship Is Settled

A joint consent decree (full text) was filed yesterday in a South Carolina federal district court in Redeemer Fellowship of Edisto Island v. Town of Edisto Beach, South Carolina, (D SC, Aug. 19, 2019), settling a lawsuit over restrictions on the use of the Edisto Beach Civic Center.  The decree reflects the town's action rescinding its prohibition on renting out space in the Civic Center for “religious worship services.” The town also agreed to pay $3112 in damages plus plaintiff's attorney's fees. As explained in a press release from ADF:

Shortly after the lawsuit began, the U.S. Department of Justice filed a statement of interest in the case in favor of the church. The lawsuit argued that the town’s previously amended guidelines were inconsistent and amounted to viewpoint discrimination—allowing some groups “to engage in singing, teaching, social interaction, and similar expressive activities” at the center while denying “access to those groups that engage in those same activities from a religious viewpoint.”

Bibles Are Excluded From Tariffs On Chinese Goods

Christianity Today reported last week that Bibles and other religious books have been removed from the list of items produced in China that will be subject to U.S. tariffs. Printing companies in China are the world's largest supplier of Bibles, publishing millions of copies each year. A statement from SBC’s Ethics and Religious Liberty Commission points out that "Bibles contain a large amount of text that must be formatted to a bound book on thin paper. China has been specializing in this printing technology for decades..."

EEOC Wins Settlement of Suit Brought On Behalf of Seventh Day Adventists

EEOC last week announced the settlement of a lawsuit it had filed against an  Ooltewah, Tennessee, senior and assisted living community.  Garden Plaza at Greenbriar Cove required two Seventh Day Adventist employees to work on Saturdays, and asked them to resign when they refused to do so.  In the settlement, Garden Plaza will pay $92,586.50 in damages, and enter a 2-year consent decree requiring it to train employees on Title VII matters.

Recent Articles and Forthcoming Books of Interest

From SSRN:

• Micah Schwartzman & Jocelyn Wilson, The Unreasonableness of Catholic Integralism, (Virginia Public Law and Legal Theory Research Paper No. 2019-43 (2019)).
• Steven F. Friedell, Jewish Law in Israel — Hope and Renewal, (August 9, 2019).
• Robert C. Blitt, The International Religious Freedom Act: Non-State Actors and Freedom from Sovereign Government Control, (August 9, 2019).
• Mohammad Fadel, The Challenges of Islamic Law Adjudication in Public Reason, (Public Reason and Courts, edited by Langvatn et al., Cambridge University Press, Forthcoming).
• Carl H. Esbeck, The World War I Memorial Cross Case: U.S. Supreme Court Takes a New Approach with the Establishment Clause, (University of Missouri School of Law Legal Studies Research Paper No. 2019-15 (2019).
• Courtney G. Joslin, Autonomy in the Family, (66 UCLA Law Review 912 (2019)).
• Abner S. Greene, Barnette and Masterpiece Cakeshop: Some Unanswered Questions, (13 FIU L. Rev. 667 (2019)).

Forthcoming Books:

• Adriano Prosperi, Crime and Forgiveness: Christianizing Execution in Medieval Europe, (Harvard Univ. Press, May 2020).
• Magda Teter, Blood Libel: On the Trail of an Antisemitic Myth, (Harvard Univ. Press, Jan. 2020).
• Ian Coller, Muslims and Citizens: Islam, Politics, and the French Revolution, (Yale Univ. Press, Jan. 2020).
• Edward E. Curtis IV, Muslim American Politics and the Future of US Democracy, (NYU Press, Dec. 2019).
• P. Peter Sarros, U.S.-Vatican Relations, 1975–1980: A Diplomatic Study, (Notre Dame Univ. Press, Dec. 2019).

Texas Limit On Marriage Officiants Upheld

In Center for Inquiry, Inc. v. Warren, (ND TX, Aug. 16, 2019), a Texas federal district court rejected a number of constitutional challenges to a Texas law that limits those who can officiate at marriage ceremonies to clergy and specified government official. It does not allow other secular celebrants. The court, applying the Lemon test held that the law does not violate the Establishment Clause, saying in part:

The Statute does not discriminate among religions nor does it have the primary objective of favoring religion over nonreligion. At most, the Statute provides a benefit to religion that is indirect or incidental in light of the historical context of this Statute; however, this does not make the Statute unconstitutional.... The Statute still provides for civil, nonreligious ceremonies performed by judges, while also allowing those who wish to be married in a religious ceremony to do so.

The court also rejected an equal protection challenge, saying in part:

The Statute in this case rationally serves that purpose by limiting secular officiants to current and retired judges and by leaving it up to the religious organization—any religious organization—to determine who is authorized in accordance with its belief system to solemnize marriages. The fact that the Statute does not allow every secular individual trained to solemnize marriages to legally solemnize marriages in Texas does not make this statute unconstitutional. Instead, there is a rational basis for the Statute’s limitation based on both the historical practice of allowing judicial and religious officials to solemnize marriages, and because these individuals and their respective organizations can reasonably be expected to ensure the prerequisites to marriage are met and that the ceremony contains the necessary level of respect and solemnity without the need for significant involvement and oversight by the state.

Court Temporarily Enjoins New Jersey's Assisted Suicide Law

Fox29 News reports that on Wednesday, a New Jersey state trial court judge issued a temporary restraining order preventing the state's Aid in Dying for the Terminally Ill Act from being enforced.  The bill took effect on Aug. 1. (Background).  The suit challenging the Act was brought by an Orthodox Jewish physician who says that the law is an affront to religious doctors.  Sec. 26-16-17(c) of the Act provides:

If a health care professional is unable or unwilling to carry out a patient's request under P.L.2019, c.59 (C.26:16-1 et al.), and the patient transfers the patient’s care to a new health care professional or health care facility, the prior health care professional shall transfer, upon request, a copy of the patient's relevant records to the new health care professional or health care facility.

The lawsuit alleges that this requirement to transfer records violates doctors' rights to practice medicine without breaching the fiduciary duties of their patients as well as doctors' rights "to freely practice their religions in which human life is sacred and must not be taken." A hearing in the case is set for October.

6th Circuit: City Did Not Ban All Mention of Religion At Council Meeting On Mosque Construction

In Youkhanna v. City of Sterling Heights, (6th Cir., Aug. 14, 2019), the U.S. 6th Circuit Court of Appeals rejected challenges to the manner in which the city of Sterling Heights, Michigan conducted a raucous city council meeting at which settlement of a RLUIPA lawsuit was being considered.  At issue was the city's settlement of a zoning dispute under which the American Islamic Community Center was permitted to build a mosque in the city.  City Council placed limits on the scope of comments that citizens could make during the meeting, and eventually cleared the meeting room when the audience became disruptive.

Plaintiffs objected that their 1st Amendment rights were infringed when the mayor told the audience at the meeting:

We do not need any comments about anybody’s religion, that is not the purpose of this meeting tonight and any comments regarding other religions or disagreements with religions will be called out of order.

The court responded:

This was not, as plaintiffs would have, a ban on talking about religion. This is clear from the fact that comments mentioning religion—including comments mentioning Islam specifically—were allowed when they were relevant to zoning issues....

The court also rejected a number of other challenges to the conduct of the meeting, including an Establishment Clause claim.  Detroit News reports that plaintiffs intend to seek en banc review of he decision.

Pro-Life Advocate Nominated For Missouri Federal District Judgeship

On Wednesday the White House announced a number of intended judicial, US Attorney and US Marshall nominations. Among these are the nomination of  Sarah Pitlyk for a judgeship on the U.S. District Court for the Eastern District of Missouri. The St. Louis Post-Dispatch details her past work on pro-life and religious liberty issues:

Pitlyk is special counsel to the Chicago-based Thomas More Society, a not-for-profit law firm "dedicated to restoring respect in law for life, family, and religious liberty." At the society, she worked to defeat an "abortion sanctuary city" ordinance in St. Louis, and on "several landmark pro-life and religious liberty cases." ...

Pitlyk was involved in a dispute over whether a divorced St. Louis County couple's frozen embryos were property or "unborn children" under Missouri law; a civil lawsuit filed against Planned Parenthood by a man acquitted of a bomb threat charge; and the defense of a man accused in California of making a false exposé claiming Planned Parenthood was selling fetal tissue....

Pitlyk graduated summa cum laude from Boston College before receiving master’s degrees in philosophy from Georgetown University and in applied biomedical ethics from the Katholieke Universiteit Leuven in Belgium, where she was a Fulbright Scholar...

She graduated from Yale in 2008 ... [where she] founded Yale Law Students for Life.

Money Damages Unavailable Under RFRA

In Ajaj v. United States, (SD IL, Aug. 13, 2019), an Illinois federal district court, passing on an issue on which several circuits are split, held that money damages are not available in suits under the Religious Freedom Restoration Act against federal officials in their individual capacities. The suit was brought by a Muslim inmate who claims prison officials burdened his religious practices. The court said in part:

[T]he Religious Land Use and Institutionalized Persons Act (RLIUPA)—RFRA’s “sister statute” that applies against the states ... contains nearly the exact same operative language as RFRA....But the Supreme Court has already held that damages against the states were not “appropriate relief” under that statute because Congress must “give clear direction that it intends to include a damages remedy” against a State for one to be available.....

While Ajaj says that the Court should treat RLIUPA and RFRA differently because Congress enacted RLIUPA under the Spending Clause, that looks like a red herring. “Given that RFRA and RLUIPA attack the same wrong, in the same way, in the same words, it is implausible that ‘appropriate relief against a government’ means something different in RFRA, and includes money damages.”

Labor Department Proposes Religious Exemption Clarification For Government Contractors

Executive Order 11246 requires that all federal government contracts contain a provision barring the contractor from discriminating against employees on various grounds, including religion. The Executive Order, however, contains an exemption for "a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." Today the Department of Labor published in the Federal Register proposed rules (full text) to clarify the scope of this exemption. Among other things, the proposal clarifies the kinds of entities covered by the exemption:

Religious corporation, association, educational institution, or society means a corporation, association, educational institution, society, school, college, university, or institution of learning that is organized for a religious purpose; holds itself out to the public as carrying out a religious purpose; and engages in exercise of religion consistent with, and in furtherance of, a religious purpose. To qualify as religious a corporation, association, educational institution, society, school, college, university, or institution of learning may, or may not: have a mosque, church, synagogue, temple, or other house of worship; be nonprofit; or be supported by, be affiliated with, identify with, or be composed of individuals sharing, any single religion, sect, denomination, or other religious tradition.

According to Axios, opponents of the rule change argue that it would allow government contractors to fire LGBTQ employees, or unmarried employees who are pregnant, on the basis of the employer's religious views.

Suit Challenges Virginia Fair Housing Act Provision Barring Religious Language In Ads

Suit was filed in a Virginia state trial court yesterday challenging a provision in the state's Fair Housing Code which provides that advertisements using "words or symbols associated with a particular religion.... shall be prima facie evidence of an illegal preference under this chapter which shall not be overcome by a general disclaimer." The complaint (full text) in Carter v. Virginia Real Estate Board, (VA Cir. Ct., filed 8/14/2019) contends that realtor Hadassah Hubbard Carter's free exercise, free speech and due process rights were infringed when the Virginia Real Estate Board claimed that she had violated the Fair Housing Code by use of a religious phrase in her e-mail signature line, and a Biblical quotation and a recitation of her religious beliefs on her business website. ACLJ issued a press release announcing the filing of the lawsuit.

Pro-Life Group Wins Challenge To University's Student Fee Allocation Process

In Apodaca v. White, (SD CA, Aug. 13, 2019), a California federal district court held that California State University- San Marcos cannot use mandatory student fees from objecting students to fund programs and speakers until the University adopts specific and detailed neutral standards for determining which funding applications will be granted. The suit was filed by a pro-life student group that was seeking funding for a lecture about abortion. ADF issued a press release announcing the decision.

Challenge To New York's Elimination of Religious Exemption From Vaccination Is Argued In Court

Media (such as Newsday, Gothamist, New York Law Journal) covered yesterday's oral arguments in a New York state trial court in a case challenging the constitutionality of New York's recent law that eliminated religious exemptions from vaccination requirements for school children. Robert F. Kennedy, Jr., a skeptic of vaccines, was one of the attorneys who argued the case for 55 families who are plaintiffs in the case.  They contend that the new law violates their religious freedom protections, and that legislators were motivated by hostility toward specific religious groups. The law was passed after an outbreak of measles in recent months. The state argued that the legislature was motivated by public health concerns.

Suits Filed As New York's Window For Old Child Sex Abuse Cases Opens

AP reports on the numerous lawsuits that were filed yesterday as the state's recently enacted Child Victim Act opened for the first time a one-year window for previously time-barred child sex abuse lawsuits. Defendants in various cases include the Catholic Church, Jehovah's Witnesses, Boy Scouts, Jeffrey Epstein, Rockefeller University and various public schools. Meanwhile, WBFO reports that statewide, 45 judges have been designated to hear Child Victim Act cases.

Georgia's Prisoner Grooming Policy Struck Down

In Smith v. Dozier, (MD GA, Aug. 7, 2019), (on remand from the 11th Circuit) a Georgia federal district court in an 18-page opinion held that the Georgia Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act. The state's policy allows inmates only to grow a beard up to one-half inch in length. No religious exemption from the requirement is provided.  The court went on to hold that for inmates who qualify for a religious exemption, the state must allow beards up to three inches in length. In its opinion, the court examined and rejected several justifications offered by the state for its challenged policy. Law.com reports on the decision.

Sex Abuse Lawsuit Against Jehovah's Witnesses To Be Filed Today

The provision in Sec. 3 of New York's Child Victims Act that creates a one-year window for filing previously time-barred child sex abuse lawsuits is triggered as of today.  New York Post reports that two former Jehovah's Witnesses will file suit in state court today:

Lawyers for Heather Steele, 48, and John Michael Ewing, 47, alleged at a press conference Monday that the Witnesses and its eight-member leadership council even maintain a database of church sex offenders that it’s kept secret....

Ewing claims in his lawsuit that a Jehovah’s Witness elder molested him “approximately four to six times per week” for four years, starting when he was 14 — including while his abuser was on vacation with his family.

Steele, who grew up in New York and is now living in Orlando, Florida, claims she was still in diapers when Jehovah’s Elder Donald Nicholson, a family friend, started molesting her in the mid-1970s.

Saudi Arabia Relaxes Legal Restrictions On Women

Human Rights Watch reported earlier this month on significant changes that Saudi Arabia has made to its restrictions on women's rights:

The legal changes, adopted by a Council of Ministers decision and endorsed by royal decree M.134, will allow Saudi women to obtain passports without the approval of a male relative, register births of their children, and benefit from new protections against employment discrimination. Saudi official sources have announced that women over 21 will no longer require male guardian permission to travel abroad, but the Council of Ministers decision makes no reference to women’s freedom to travel....

The Council of Ministers decision on July 31, 2019, published in the official gazette on August 1, amend the Travel Documents Law, the Civil Status Law, and the Labor Law.

White House Already Planning For Christmas

The White House issued a press release yesterday announcing that planning for the 2019 Christmas season is already under way at the White House.  It invites applications from individuals interested in volunteering to decorate the White House or act as greeters during Holiday Open Houses.  It also invites musicians including high school bands, choirs, and Christmas-themed entertainers to apply to perform during the Holiday Open Houses in December.

Homeless Shelters Excluded From City's Anti-Discrimination Ordinances

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Aug. 9, 2019), an Alaska federal district court issued a preliminary injunction barring enforcement of two of Anchorage's anti-discrimination ordinances against a faith-based homeless shelter for women which admits only individuals who were determined to be female at birth. Thus transgender men may be admitted, but transgender women may not.  The court concluded that homeless shelters are not covered by either the fair housing or public accommodation provisions of the city's code. ADF issued a press release announcing the decision.