State False Advertising Ban Does Not Apply To Catholic Schools

In State of West Virginia ex. rel. Morrisey v. Diocese of Wheeling-Charleston, (WV Cir. Ct., Nov. 6, 2019), a West Virginia Trial Court held that West Virginia's Consumer Credit and Protection Act does not apply to religious institutions' advertising or sale of educational or recreational services.  In the case, plaintiffs contended that the Diocese engaged in deceptive acts or practices by failing to disclose that in the past it had knowingly employed some priests and laity that had sexually abused children while it advertises a safe learning environment in its schools and camps. The court also held that application of the Act to religious schools would involve an unconstitutional excessive entanglement of church and state. After reaching its conclusions, the trial court stayed the action and certified the questions raised in the case to the West Virginia Supreme Court. The Intelligencer reports on the decision. [Thanks to Mark Chopko for the lead.]

Court Invalidates HHS Conscience Rules

In State of New York v. U.S. Department of Health and Human Services, (SD NY, Nov. 6, 2019), a New York federal district court vacated a 2019 rule promulgated by HHS which, as summarized by the court:

purports to interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection. [See prior posting].

The court summarized the conclusions it reached in its 147-page opinion:

With respect to the Church, Coats-Snowe, and Weldon Amendments, HHS was never delegated and did not have substantive rule-making authority.....

 With respect to all Conscience Provisions, HSS was never delegated and did not have authority to promulgate a Rule authorizing, as a penalty available to the agency for a recipient’s non-compliance, the termination of all of the recipient’s HHS funds....

With respect to all Conscience Provisions, the Rule is contrary to law... insofar as (1) in its application to the employment context, it conflicts with Title VII of the Civil Rights Act of 1964 ... to prescribe a framework governing the circumstances under which an employer must accommodate an employee’s religion-based objections; and (2) in its application to emergencies, it conflicts with the 1986 Emergency Medical Treatment and Labor Act....

With respect to all Conscience Provisions, HHS acted arbitrarily and capriciously in promulgating the Rule,... because (1) HHS’s stated reasons for undertaking rulemaking are not substantiated by the record before the agency, (2) HHS did not adequately explain its change in policy, and (3) HHS failed to consider important aspects of the problem before it.

With respect to all Conscience Provisions, HHS did not observe proper rulemaking procedure in promulgating the Rule... insofar as portions of the Rule that define “discriminate or discrimination” were not a “logical outgrowth” of HHS’s notice of proposed rulemaking....

With respect to all Conscience Provisions, the Rule’s authorization ... as a penalty ... in the event of a recipient’s non-compliance of the termination of all of the recipient’s HHS funds, violated the Separation of Powers and the Spending Clause of the Constitution, U.S. Const. art. I, § 8, cl. 1.

Reuters reports on the decision.

UPDATE: A press release from the Washington state Attorney General's office reports that on Nov. 7 a federal district court in Washington also found the new conscience rules invalid.

New York Trial Court Upholds Vaccination Requirement

The Rochester Democrat & Chronicle reports that a New York state trial judge in Seneca County has rejected a challenge by an Amish family to New York's requirements that students be vaccinated in order to attend public or private school. The suit claimed that the immunization requirement violates the protection of religious freedom set out in the state constitution. The court wrote in part:

the free exercise clause of the New York Constitution would yield to a valid exercise of the state’s police powers.

Recent Articles of Interest

From SSRN:

• Shaakirrah Sanders, Religious Healing Exemptions and the Jurisprudential Gap Between Substantive Due Process and Free Exercise Rights, (8 U.C. Irvine L. Rev. 633 (2018)).
• Farnush Ghadery, 'Sticking to Their Guns': The United Nations' Failure to See the Potential of Islamic Feminism for the Promotion of Women's Rights in Afghanistan, (October 8, 2019).
• Robin S. Maril, From Piggie Park v. Newman to Masterpiece Cakeshop v. Colorado Civil Rights Commission: Application of the Outward Facing Actions Test to LGBTQ Nondiscrimination Provisions, (Rutgers Journal of Law and Religion, Forthcoming).
• Rafael Domingo & John Witte, Christianity and Global Law: Introduction,(October 10, 2019).
• Brenda Bauges, Balancing Religious Liberties and Anti-Discrimination Interests in the Public Employment Context: The Impact of Masterpiece Cakeshop and American Legion, (54 U. Rich. L. Rev., Forthcoming).
• Sabah Mofidi, Christianity, Women’s Rights and Feminist Ethics; in an Interview With Prof. Cristina Traina, (October 12, 2019).
• Shahbaz Ahmad Cheema, Non-Repugnancy Decisions of the Federal Shariat Court of Pakistan: An Analysis of Politico-legal Ramifications, (October 13, 2019).
• Shahbaz Ahmad Cheema, An Unlikely Champion of Women’s Rights under Muslim Personal Law: Mawdudi on Anglo-Muhammadan Law, (October 13, 2019).
• Pauline Ridge, When Is the Advancement of Religion Not a Charitable Purpose?,(Canadian Journal of Contemporary and Comparative Law (Summer 2020, Forthcoming)).
• Charles A. Sullivan, Retaliation and Requesting Religion Accommodation, (Case Western Reserve Law Review, Vol. 70, 2020).
• Dustin N. Sharp, Prickles and Goo: Human Rights and Spirituality, (October 18, 2019).
• Christos Makridis, Human Flourishing and Religious Liberty: Evidence from Over 150 Countries, 2006-2018, (October 21, 2019).

2nd Circuit Allows Christian Adoption Agency To Continue Ongoing Cases Pending Appeal On Anti-Discrimination Law

In New Hope Family Services, Inc. v. Poole, (2d Cir., Nov. 4, 2019), the U.S. 2nd Circuit Court of Appeals issued a preliminary injunction allowing a Christian adoption agency, pending a decision on appeal of a lower court order, to continue to provide adoption services that are under way and ongoing without complying with New York's law barring discrimination on the basis of sex, sexual orientation, gender identity or marital status against applicants for adoption services. At the same time, the agency agreed to stop accepting all new clients while the appeal is pending. In May, the district court had rejected the agency's 1st and 14th amendment challenges to New York's anti-discrimination provisions. The Court of Appeals said in part:

On the motion record here, the court can conclude only that New Hope may succeed on the merits of its appeal; the likelihood of such success cannot confidently be predicted in advance of reviewing the circumstances and law as more fully presented by the parties in their merits briefs.

What can be determined even on the motion record, however, is that New Hope will suffer irreparable injury without the requested preliminary injunction pending appeal.

ADF issued a press release announcing the decision.

European Court Criticizes Greece's Procedure For Exemptions From Compulsory Religion Courses

In Papageorgiou and Others v. Greece, (ECHR, Oct. 31, 2019), the European Court of Human Rights in a chamber judgment held that Greece's system of exemptions of children from compulsory religious education classes in public schools violates freedom of education provisions and freedom of thought conscience and religion protected by the European Convention on Human Rights and Protocol Number 1 to the Convention.  Children who are not Orthodox Christians may be excused from the course. The court said in part:

the current system of exemption of children from the religious education course is capable of placing an undue burden on parents with a risk of exposure of sensitive aspects of their private life and that the potential for conflict is likely to deter them from making such a request, especially if they live in a small and religiously compact society, as is the case with the islands of Sifnos and Milos, where the risk of stigmatisation is much higher than in big cities. The applicant parents asserted that they were actually deterred from making such a request not only for fear of revealing that they were not Orthodox Christians in an environment in which the great majority of the population owe allegiance to one particular religion..., but also because, as they pointed out, there was no other course offered to exempted students and they were made to lose school hours just for their declared beliefs.

The Court also issued a Press Release summarizing the decision.

Hate Crime Charges Filed In Plot To Bomb Synagogue

Yesterday, the U.S. Attorney's Office in Colorado announced that a criminal complaint was filed charging a Colorado man with federal hate crimes for plotting to blow up a synagogue:

Richard Holzer, 27, of Pueblo, Colorado, was charged by criminal complaint with intentionally attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs, through force and the attempted use of explosives and fire, in violation of Title 18, United States Code, Section 247.  

According to the affidavit in support of the criminal complaint, Holzer planned to destroy Temple Emanuel, a synagogue in Pueblo, Colorado, that is listed on the National Register of Historic Places. After visiting Temple Emanuel and observing Jewish congregants, Holzer, who self-identifies as a skinhead and a white supremacist, told undercover FBI agents that he wanted to do something that would tell Jewish people in the community that they are not welcome in Pueblo, and they should leave or they will die. The affidavit states that during a meeting with the undercover agents, Holzer repeatedly expressed his hatred of Jewish people and his support for RAHOWA, shorthand for a racial holy war. Holzer went on to suggest using explosive devices to destroy the Synagogue and “get that place off the map.” The affidavit notes that Holzer’s actions meet the federal definition of domestic terrorism in that his actions involve criminal acts dangerous to human life that are intended to intimidate or coerce a civilian population.

Ministerial Exception Requires Dismissal of Elementary Teacher's Pregnancy Discrimination Suit

In Hutson v. Concord Christian School, LLC, (ED TN, Nov. 4, 2019), a Tennessee federal district court dismissed an employment discrimination suit brought by an elementary teacher at a Baptist school.  The teacher's contract was not renewed after she became pregnant out of wedlock. The court held that the ministerial exception doctrine requires dismissal of plaintiff's claims.

HHS To Allow Grantees To Refuse To Serve LGBT Clients

On Nov. 1, the U.S. Department of Health and Human Services announced actions that effectively allow agencies receiving HHS grants, including foster care and adoption agencies, to refuse to serve gay, lesbian and transgender individuals and families on religious grounds. First, HHS issued a Notice of Non-Enforcement of  rules adopted in 2016 that prohibit such discrimination. The non-enforcement decision was based on "significant concerns about compliance with the Regulatory Flexibility Act" in the promulgation of the 2016 rules.  HHS then issued a Notice of Proposed Rulemaking that would repromulgate the rules with narrower anti-discrimination protections. The proposed new rules would replace this section:

(c) It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.

(d) In accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples. This does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law as something other than a marriage.

The new rules will instead provide:

(c) It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.

(d) HHS will follow all applicable Supreme Court decisions in administering its award programs.

In its announcement, HHS said in part:

The proposed rule would better align its grants regulations with federal statutes, eliminating regulatory burden, including burden on the free exercise of religion.

New York Times reports on the HHS action.

Bankruptcy Court Upholds Order To Sell Church Property

In In re: Sindesmos Hellinikes-Kinotitos of Chicago, (ED IL Bkrpt., Oct. 25, 2019), an Illinois federal bankruptcy court refused to vacate a prior order for the sale of the Greek Orthodox Holy Trinity Church in Chicago which was $8.2 million in debt to a bank lender. A group of parishioners sought to have the order vacated, claiming that the local church lacked authority to sell the property because the sale had not been approved by a Parish Assembly vote.  The court said in part:

Here, the parties do not contest that the Debtor is subject to the hierarchy of the Greek Orthodox Diocese of America and is so bound by its Uniform Parish Regulations..... Those Uniform Regulations provide that a

Parish may purchase real and person property, or sell, mortgage, or otherwise encumber its real property . . . upon approval of two-thirds (2/3) of the parishioners in good standing present at a Parish Assembly duly called (with at least ten (10) days prior written notice) for that purpose, provided that approval from the respective Hierarch is received . . . .

The crux of the Concerned Parishioners' argument is, however, that while such approval may have been obtained, as the approval of two-thirds of the parishioners was not, the sale is unauthorized.... According to the Opposing Parties, such procedure is one of convenience for the Hierarch but is not an actual vested right of the parishioners....

[F]or the court to conclude that the church intended to vest in its parishioners a property right sufficient to require service under Bankruptcy Rule 6004(c) and sufficient to create a pecuniary interest in the outcome of the sale, the court must attempt to answer fundamental questions of the church's treatment of its parishioners.

Interpreting that ambiguity and resolving those fundamental questions would require this court to probe into the allocation of power within the church, to attempt to posit the church's intent and polity regarding the rights of its parishioners. That, quite simply, cannot happen.

Organization Lacks Standing To Claim Sexual Orientation Discrimination By Christian Business Owners

In Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals, (KY Sup. Ct., Oct. 31, 2019), The Kentucky Supreme Court dismissed on standing grounds a suit against a small business whose Christian owners refused on religious grounds to print T-shirts for a Pride Festival. The court held that because the discrimination complaint was filed only by a gay-rights organization, plaintiff lacks statutory standing:

[B]ecause an “individual” did not file the claim, but rather an organization did, we would have to determine whether the organization is a member of the protected class, which we find impossible to ascertain. No end user may have been denied the service who is a member of the protected class, or perhaps one was. If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden under KRS 446.350. But without an individual, as required by Section 2-32(2)(a), this analysis cannot be conducted.

Justice Buckingham filed a concurring opinion, arguing that the Human Rights Commission had unconstitutionally attempted to compel the business to express ideas with which it disagreed. [Thanks to Tom Rutledge for the lead.]

"Prosperity Gospel" Minister Joins White House Staff

New York Times reported last week that Florida-based evangelist Paula White will join the White House staff in an official capacity. She will work in the Office of Public Liaison as an adviser to the administration's Faith and Opportunity Initiative. White has been part of President Trump's informal religious advisers.  As a proponent of the "prosperity gospel", White is controversial among some Evangelicals.

NOTE TO READERS: RELIGION CLAUSE WILL BE ON BREAK FROM OCT. 21 TO NOV. 3

Religion Clause will be on break from Oct. 21 to Nov. 3.  Look for regular postings to resume on November 4.

Recent Articles of Interest

From SSRN:

• Shaakirrah Sanders, Religious Healing Exemptions and the Jurisprudential Gap Between Substantive Due Process and Free Exercise Rights, (8 U.C. Irvine L. Rev. 633 (2018)).
• Farnush Ghadery, 'Sticking to Their Guns': The United Nations' Failure to See the Potential of Islamic Feminism for the Promotion of Women's Rights in Afghanistan, (October 8, 2019).
• Perry Dane, 'Avinu, Malkeinu, Kin(g) of All the Earth': A Yom Kippur D’var Torah, (October 4, 2019).
• Dimitry Kochenov & Uladzislau Belavusau, Same-Sex Spouses in the EU after Coman: More Free Movement, But What about Marriage?, (EUI Working Paper (Florence) No. 2019/3).
• Deepa Das Acevedo, Just Hindus, (Law & Social Inquiry (2020, Forthcoming)).
• Joshua Jones, Title IX's Substantive Equity Mandate for Transgender Persons in American Law Schools: A Call to Disaggregate SOGI Data, (Forthcoming, Spring 2020, Vol. 44.3 NYU Review of Law and Social Change).
• Andrew T. Hayashi, The Law and Economics of Animus, (Virginia Public Law and Legal Theory Research Paper No. 2019-57).

Court In India Reduces Power of Ecclesiastical Courts In Goa

Hindustan Times of Oct. 19 reports:

After hearing two separate petitions filed by persons whose marriages were annulled by a so-called church court, the Bombay high court at Goa has struck down Article 19 of a Portuguese edict that gave legal sanctity to rulings of ecclesiastical tribunals in the former Portuguese colony

The high court said the article was “unconstitutional, illegal, null and void and ultra vires Articles 14 and 21 of the Constitution of India.”

The decree in question, Portuguese Decree 35461, has its origin in a 1940 agreement between the government of Portugal and the Holy See.... The decree went into effect in Goa in 1946 and governs marriages and divorces of Catholic couples. But in doing so, it virtually reduced the role of civil courts to administrative bodies, merely tasked with ensuring the execution of orders passed under the decree....

Interpreting the judgement, [a former law commissioner] said that now, couples who seek annulment of a church marriage can approach the ecclesiastical tribunals, but will also have the option of approaching the civil courts to dissolve the civil aspect of marriage....

Hong Kong Court: No Protection For Same-Sex Marriage or Civil Unions

In MK v. Government of HKSAR, (HKCFI, Oct. 18, 2019), the Hong Kong Court of First Instance ruled that Article 37 of Hong Kong's Basic Law  providing protection for the freedom of marriage applies only to heterosexual marriage.  It also held that the government does not have a duty to provide a legal framework, such as civil unions, as an alternative to protect same-sex couples. JURIST reports on the decision.

European Court Says Azerbaijan Must Exempt Jehovah's Witnesses From Military

As reported by Courthouse News Service:

The European Court of Human Rights ruled Thursday that Jehovah’s Witnesses in Azerbaijan cannot be forced to serve in the military.

“Freedom of thought, conscience and religion [is] one of the cornerstones of a ‘democratic society’ within the meaning of the” European Convention on Human Rights, the court said in a press release announcing the decision.

Here is the full text of the decision in French in In re Mammadov v. Azerbaijan, (ECHR, Oct. 17, 2019).

Attorney General Barr Speaks On Religious Liberty At Notre Dame

On Oct. 11, U.S. Attorney General William Barr delivered a lengthy address (full text) on religious liberty at Notre Dame University. Here is an excerpt:

... [L]aw is being used as a battering ram to break down traditional moral values and to establish moral relativism as a new orthodoxy....

First, either through legislation but more frequently through judicial interpretation, secularists have been continually seeking to eliminate laws that reflect traditional moral norms.

At first, this involved rolling back laws that prohibited certain kinds of conduct. Thus, the watershed decision legalizing abortion. And since then, the legalization of euthanasia. The list goes on.

More recently, we have seen the law used aggressively to force religious people and entities to subscribe to practices and policies that are antithetical to their faith.

The problem is not that religion is being forced on others. The problem is that irreligion and secular values are being forced on people of faith.

This reminds me of how some Roman emperors could not leave their loyal Christian subjects in peace but would mandate that they violate their conscience by offering religious sacrifice to the emperor as a god.

Similarly, militant secularists today do not have a live and let live spirit - they are not content to leave religious people alone to practice their faith. Instead, they seem to take a delight in compelling people to violate their conscience.

EEOC Sues Over Harassment of Pentecostal Employees

The EEOC announced yesterday that it has filed suit against Service Caster Corp. alleging discrimination and harassment of three employees because of their Puerto Rican national origin and their Pentecostal religion. The complaint (full text) in EEOC v. Service Caster Corp., (ED PA, filed 9/30/2019), alleges in part that the plant manager repeatedly referred to Pentecostalism as a " disgusting cult".

Cert. Denied In Challenge To High School Unit On Islam

On Tuesday, the U.S. Supreme Court denied review in Wood v. Arnold, (Docket No. 18-1438, certiorari denied 10/15/2019). (Order List.)   In the case, the 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and compelled speech challenges to a classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide which included the statement that most Muslims' faith is stronger than that of the average Christian.  The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada. (See prior posting.) The Free Thinker blog has more on the case.

Naval Base Protesters May Not Raise RFRA or 1st Amendment Defenses

In United States v. Kelly, (SD GA, Oct. 11, 2019), a Georgia federal magistrate judge ruled that seven Catholics who are members of an activist group opposed to nuclear weapons cannot raise RFRA or First Amendment defenses in their trial for trespass and destruction of government property.  Defendants broke into a highly secured Naval Submarine Base and in protest of nuclear weapons poured blood on the ground, hung banners and painted messages. (See prior posting.)  The court said in part:

Here, the Court has already fully considered Defendants’ RFRA arguments in the course of ruling on Defendants’ motions to dismiss. In its ruling, the Court determined that the Government has shown a compelling interest and that it is utilizing the least restrictive means...., Because this determination has been made as a matter of law, and Defendants may not present a RFRA defense to the jury at trial....

Court Vacates Obama-Era Rule Mandating Gender Transition and Abortion Procedures

In Franciscan Alliance, Inc. v. Azar, (ND TX, Oct. 15, 2019), a Texas federal district court vacated and remanded for further consideration a rule issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. The court relied on reasoning in its earlier preliminary injunction decision (see prior posting) concluding that requiring health care providers to perform and provide insurance coverage for gender transitions and abortions in violation of their religious beliefs violates RFRA.  The court held that vacatur is the proper remedy for an unlawful agency rule, and so refused to also issue a nationwide permanent injunction. In the case the court had allowed the ACLU and the River City Gender Alliance to intervene to defend the Obama administration rule. Becket Law issued a press release announcing the decision.

Secy. Pompeo Speaks To Christian Conference

Secretary of State Mike Pompeo spoke on Friday to the American Association of Christian Counselors meeting in Nashville, Tennessee.The full text of his remarks titled "Being a Christian Leader" are featured on the State Department's website, along with a video of his remarks. Pompeo said in part:

... I’m especially telling the truth about the dire condition of religious freedom around the world. America has a proud history of religious freedom, and we want jealously to guard it here.  But around the world, more than 80% of mankind lives in areas where religious freedom is suppressed or denied in its entirety.

The Chinese Communist Party ... is detaining and abusing more than one million Uighur Muslims in internment camps in the Xinjiang. ...

So Christian pastors today are being unlawfully arrested, beaten, detained inside the Islamic Republic of Iran.  We need to speak about this.

Christian areas in northern Iraq that I’ve had the privilege to visit have been ravaged by ISIS, part of a greater trend of Christian persecution all across the Middle East.

And so the truth – for the past two years we’ve spoken the truth.  We’ve hosted ministerials....  We’ve told the world about these shortfalls and the success of nations when individuals are given their basic human dignity to practice their conscience, their faith, or to choose no faith if they so choose all around the world.

Recent Articles of Interest

From SSRN:

• Ryan T. Anderson & Robert George, The Baby and the Bathwater, (National Affairs, Number, 41, Fall 2019).
• Chad Flanders & Sean Oliveira, An Incomplete Masterpiece, (UCLA Law Review, Vol. 66, 2019).
• Chad Flanders, In (Partial) Praise of (Some) Compromise: Comments on Tebbe, (Journal of Civil Rights & Economic Development, vol. 31, no. 2, 2018).
• Richard Schragger, Unconstitutional Government Speech, (Virginia Public Law and Legal Theory Research Paper No. 2019-56 (2019)).
• Jean Galbraith & Beatrix Lu, Gender-Identity Protection, Trade, and the Trump Administration: A Tale of Reluctant Progressivism, (Yale Law Journal Forum, Vol. 129, P. 44, 2019).
• Caroline Mala Corbin, The Supreme Court's Facilitation of White Christian Nationalism, (Alabama Law Review, Forthcoming).
• Zainuddin Zainuddin, Restorative Justice Concept on Jarimah Qishas in Islamic Criminal Law, (Jurnal Dinamika Hukum Vol. 17 No. 3, September 2017).
• Yasmin Raafat, Sugar-Coating Female Genital Mutilation in United Nations Documents in English and Arabic: A Diachronic Study of Lexical Variation, (International Journal of Linguistics, Literature and Translation (IJLLT), 2019).
• Norman I. Silber, Foreign Corruption of the Political Process Through Social Welfare Organizations, (Northwestern University Law Review, Vol. 114, 2019).

Citizen Lacks Standing To Challenge City's Annual Menorah Lighting

In Taylor v. City of Flagstaff, (D AZ, Oct. 9, 2019), an Arizona federal district court held that a citizen of Flagstaff, Arizona lacked standing to challenge the constitutionality of the city's annual Grand Menorah Lighting at City Hall.  The court said in part:

Although Plaintiff is a resident of Flagstaff..., Plaintiff did not allege that he has had direct contact with the Grand Menorah Lighting at City Hall, or any other religious ceremony purportedly held in City Hall. According to the Complaint, Plaintiff’s contact with the Grand Menorah Lighting at City Hall has, at most, been via newspaper articles reporting the “Flagstaff Hanukkah tradition.”.... While Plaintiff alleges that he has been “quite concerned” and “very disturbed” by the Grand Menorah Lighting at City Hall, ... —without more, the injury asserted by Plaintiff is too generalized and remote to confer standing....

The court concluded that the same test for standing applies to both plaintiff's Establishment Clause claim and his claim under the no-aid provision of the state constitution.

USCIRF Launches New Database of Religious Persecution Victims

On Monday at an International Religious Freedom Roundtable in Washington, D.C., the U.S. Commission on International Religious Freedom announced that it has launched the Freedom of Religion or Belief (FoRB) Victims List. The database lists those who have been victims of religious persecution in countries that USCIRF has recommended be designated "Countries of Particular Concern" under the International Religious Freedom Act.

EEOC Sues Over Denial of Religious Accommodation To Messianic Jewish Employee

The EEOC yesterday announced the filing of a lawsuit against Center One, LLC, a call center company:

According to the EEOC's lawsuit ..., a call center employee at Center One's Beaver Falls, Pa., location, who is an adherent of Messianic Judaism, sought a reasonable accommodation of his religious beliefs and practice that he abstain from work on days of religious observance.... Center One imposed disciplinary points against the Messianic Jewish employee for his absences in observance of Rosh Hashanah and Yom Kippur. Center One required that the employee provide a certification from a religious leader or religious organization "on letterhead" as a precondition of granting him time off as a reasonable accommodation and imposed disciplinary points against the Messianic Jewish employee for his absences in observance of those religious holidays...

EEOC Suit Over Insults To Muslim Employees Settled

The EEOC announced  that a consent decree was signed on Tuesday settling a suit against Haliburton Energy Services. The suit charged that two Muslim workers were subjected to taunts and name calling over their religion and national origin. One was fired for complaining about his treatment.  In the consent decree, the company agreed to pay $275,000 in damages. The decree also enjoined future violations and requires training of human resource and managerial employees. (See prior related posting.)

Court Defers To Decisions of Parent Body In Dispute With Break-Away Presbyterian Congregation

In Presbytery of Seattle v. Schulz, (WA App., Oct. 7, 2019), a Washington state appellate court upheld a trial court's deference to decisions of the Administrative Commission set up by the Presbyterian Church USA's representative in connection with disputes regarding a break-away congregation.  Finding that the Presbyterian church is a hierarchical church, the court concluded that the trial court correctly deferred to the decisions of the Administrative Commission that the disaffiliation of the First Presbyterian Church of Seattle was invalid, any interest it had in church property was held in trust for the benefit of Presbyterian Church USA, and the church's severance agreements with its pastors were invalid.  The court rejected the argument by the local church that the national body no longer had ecclesiastical jurisdiction over it once it disaffiliated, so determinations after that date by the Administrative Commission should not binding.

Cert. Denied In Dispute Over Liability of National Church Body For Sex Abuse By Church Elder

On Monday, the U.S. Supreme Court denied review in Watchtower Bible and Tract Society of New York v. J.W., (Docket No. 19-40, certiorari denied 10/7/2019). (Order List). In the case, a California state appellate court upheld an award against national church body of over $4 million to a girl who, when she was ten years old, was sexually abused by an elder of the Jehovah's Witness church.  (See prior posting.) The petition for certiorari (full text) raised 1st Amendment issues both as to liability for acts of congregants and production of internal documents. Friendly Atheist blog discusses the case.

US Sanctions Chinese Entities For Human Rights Abuses of Uighurs

In a press release yesterday, he U.S. Department of Commerce announced that it is imposing sanctions on 28 Chinese governmental and commercial organizations because they have been implicated in China's human rights abuses of Uighurs and other Muslim ethnic minorities in the Xinjiang Uighur Autonomous Region. Thompson Reuters reports on these developments.

Supreme Court Hears Oral Arguments In LGBTQ Employment Discrimination Cases

Today the U.S. Supreme Court heard oral arguments in three cases involving whether Title VII of the 1964 Civil Rights Act covers employment discrimination against gays, lesbians and transgender individuals.  Two of the cases (consolidated for oral argument) involve whether the ban on discrimination on the "because of sex" covers sexual orientation discrimination.  The cases are Bostock v. Clayton County, Georgia (case page on SCOTUSblog) and Altitude Express, Inc. v. Zarda (case page on SCOTUSblog). Here is the transcript of the full oral argument. The third case is R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (case page on SCOTUSblog). It raises the question of whether Title VII's ban on "sex" discrimination protects transgender individuals from employment discrimination.  Here is the transcript of the full oral argument. CNN reports on the oral arguments.

White House Issues Yom Kippur Greetings

The White House today released a Presidential Message on Yom Kippur, 2019 (full text). The message reads in part:

On this day, as Jews around the world stand in front of the open ark, facing the holy Torah and asking God’s forgiveness, Melania and I pray that He may seal you in the Book of Life for the coming year and grant His people a year of sweetness and plenty.

Yom Kippur begins at sundown tonight.

Cert. Petition Filed In Contraceptive Mandate Exemption Challenge

The Justice Department yesterday filed a petition for certiorari (full text) in Trump v. Commonwealth of Pennsylvania. In the case, the U.S. 3rd Circuit Court of Appeals affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting.) The cert. petition presents the following questions:

1. Whether the agencies had statutory authority under the ACA and the Religious Freedom Restoration Act ..., to expand the conscience exemption to the contraceptive-coverage mandate.

2. Whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act....

3. Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.

[Thanks to Tom Rutledge for the lead.]

Certiorari Denied In Challenge To "Bible in the Schools" Program

Yesterday the U.S. Supreme Court denied review in Mercer County Board of Education v. Deal, (Docket No. 18-1487, certiorari denied 10/7/2019).  (Order List.) In the case, the U.S. 4th Circuit Court of Appeals reversed a West Virginia federal district court and held that a student who had withdrawn from the offending school system (and her parent) had standing to challenge the school system's Bible in the Schools program. It also held that the claim was ripe for adjudication. (See prior posting.) Bluefield Daily Telegraph reports on the Supreme Court's action.

Supreme Court Denies Review Of Discovery Directed To Church

The U.S. Supreme Court today denied certiorari in Presbyterian Church v. Edwards, (Docket No. 18-1441, cert. denied 10/7/2019). In the case 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. (See prior posting.) The Supreme Court in June denied a stay in the case.

Annual Red Mass Attended By Three Current Justices and Others

Catholic Standard reports on the annual Red Mass held yesterday at the Cathedral of St. Matthew the Apostle in Washington, D.C.  The Mass is held each year on the Sunday before the U.S. Supreme Court opens its term. The paper reports:

Archbishop [Wilton D.] Gregory noted, “We pray for all of the members of the judiciary and legal world because yours is the tremendous responsibility of attempting to reflect God’s perfect justice and mercy in interpreting the laws of our nation and for all those who will come before you during this next year.”

Those affected by the administration of justice, he added, include those who may have committed crimes, and “those whose language, culture, race, or religion are not your own, as well as those who are at precarious moment on the spectrum of human life.  None of them are unimportant and all of them approach you for what they hope will be a sign and an expression of God’s truth.”

Four Supreme Court justices attended the Mass: John G. Roberts Jr., Chief Justice of the United States; Associate Justices Clarence Thomas and Stephen G. Breyer; and retired Associate Justice Anthony M. Kennedy.

Also in attendance were U.S. Attorney General William Barr; U.S. Secretary of Labor Eugene Scalia; and U.S. Solicitor General Noel Francisco; along with numerous judges and local attorneys, along with deans, professors and students from area law schools. John Garvey, the president of The Catholic University of America; and John DeGioia, the president of Georgetown University, were also at the Mass.

British Employment Tribunal Rules Against Doctor Who Objects To Policy On Pronouns For Transgender Patients

In Mackereth v. Department for Work and Pensions, (Empl. Trib., Oc. 2, 2019), a British Employment Tribunal held that while a doctor's Christian religious beliefs are protected under the Equality Act, his refusal to refer to transgender patients who he was hired to assess by their preferred pronouns and titles constitutes unlawful discrimination and harassment under the Equality Act. The Tribunal said in part:

We accept that the belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism ... are genuinely held and ... relate to a weighty and substantial aspect of human life and behaviour and attain a certain level of cogency, seriousness, cohesion and importance....

Irrespective of our determinations above, ... belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism in our judgment are incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals....

... [T]he right to manifest a religion or belief is subject to art. 9(2) [of the European Convention on Human Rights] which includes “the protection of the rights and freedoms of others.”....

Law & Religion UK has more on the decision.

European Court Says Conviction For Holocaust Denial Does Not Violate Free Speech Rights

In Pastors v. Germany, (ECHR, Oct. 3, 2019), the European Court of Human Rights in a chamber judgment rejected claims by the chairman of the National Democratic Party of Germany that his criminal conviction for a speech he gave in the Land Parliament of Mecklenburg-Western Pomerania violated his free expression rights under Art. 10 of the European Convention on Human Rights.  Pastors was convicted of defamation and violating the memory of the dead for language in his speech denying the existence of the Holocaust.  The court said in part:

In the present case, the applicant intentionally stated untruths in order to defame the Jews and the persecution that they had suffered during the Second World War. Reiterating that it has always been sensitive to the historical context of the High Contracting Party concerned when reviewing whether there exists a pressing social need for interference with rights under the Convention and that, in the light of their historical role and experience, States that have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis ..., the Court therefore considers that the applicant’s impugned statements affected the dignity of the Jews to the point that they justified a criminal-law response. Even though the applicant’s sentence of eight months’ imprisonment, suspended on probation, was not insignificant, the Court considers that the domestic authorities adduced relevant and sufficient reasons and did not overstep their margin of appreciation. The interference was therefore proportionate to the legitimate aim pursued and was thus “necessary in a democratic society”.

... In these circumstances the Court finds that there is no appearance of a violation of Article 10 of the Convention. Accordingly the complaint must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The court also issued a press release summarizing the decision.

Recent Articles of Interest

From SSRN:

• Silvia Timofti, Adoption History. From Ancient Societies to Contemporary Societies, (August 20, 2019).
• Jonathan Zasloff, Sanctuary, Civil Disobedience, and Jewish Law, (UCLA School of Law, Public Law Research Paper No. 19-32 (2019)).
• Marc O. DeGirolami, First Amendment Traditionalism, (Washington University Law Review, Forthcoming).
• Adriaan Knoetze & Shaun Alberto de Freitas, The Protection of Conscientious Objection against Euthanasia in Health Care, (Potchefstroom Electronic Law Journal, Vol. 22, 2019).
• Rafael Domingo, The Individual in Contemporary Sacred Natural Law, (Forthcoming in Anne Peter and Tom Sparks, The Individual in International Law. History and Theory (2021)).
• Andrew John Hoffman, Our Emerging Cultural Shift: Regaining the Moral Case to Address Climate Change, (Behavioral Scientist, September 30, 2019).
• Richard Schragger & Micah Schwartzman, Establishment Clause Inversion in the Bladensburg Cross Case, (ACS Supreme Court Review 2018-2019).
• Whittney Barth, et. al., Researching Hate: Challenges to Tracking Hate Crimes & Practices for Collecting Better Data, (September 18, 2019).
• Roger Colinvaux & Ray D. Madoff, Charitable Tax Reform For the 21st Century, (164 Tax Notes 1867 (2019)).

From SSRN (Islamic Law):

• Zaizul Ab Rahman, et. al., Implementing the Element of Islamic Perspective View in Mental Health Problems, (International Journal of Civil Engineering and Technology 10(3), 2019, pp. 1182-1191).
• Zaizul Ab Rahman, et. al., Element of Religiosity Practices among Teens in Islamic Perspective, (International Journal of Civil Engineering and Technology, 10(3), 2019, pp. 1244-1251).
• Raditya Sukmana, Khoirul Zadid Taqwa & Tika Widiastuti, Islamic Financial Intermediation of Indonesian Economic Growth in 2003: Q1-2015: Q4, (International Journal of Civil Engineering and Technology, 10(3), 2019, pp. 1320-1333).
• Galym Zhussipbek & Zhanar Nagayeva, Epistemological Reform and Embracement of Human Rights. What Can be Inferred from Islamic Rationalistic Maturidite Theology?, (Open Theology 2019; 5: 347–365).

Judicial Ethics Complaint Filed Over Judge's Gift of Bible To Convicted Murder Defendant

On Oct. 3, the Freedom From Religion Foundation filed a complaint with the Texas State Commission on Judicial Conduct (full text) asking it to investigate the actions of state trial judge Tammy Kemp at the widely covered murder trial of Former Dallas Police Officer Amber Guyger.  The complaint states in part:

We write to raise your awareness of Judge Kemp’s actions at the close of the trial — during which she gifted a Christian bible, instructing the convicted criminal on how to read the bible and which passages to pay attention to, and witnessing to that convicted murderer. These proselytizing actions overstepped judicial authority, were inappropriate and were unconstitutional....

We understand that it was an emotional moment, particularly when the victim’s brother, Brandt Jean, publicly forgave and hugged Guyger. It is perfectly acceptable for private citizens to express their religious beliefs in court, but the rules are different for those acting in a governmental role. We, too, believe our criminal justice system needs more compassion from judges and prosecutors. But here, compassion crossed the line into coercion. And there can be few relationships more coercive than a sentencing judge in a criminal trial and a citizen accused and convicted of a crime.

FFRF issued a press release announcing the filing of the complaint.

Trial Judge's Alleged Anti-Jewish Bias Leads To Stay of Execution

In Ex parte Halprin, (TX Ct. Crim. App., Oct. 4, 2019), the Texas' Court of Criminal Appeals stayed the execution of a Jewish inmate who claims that his trial judge was biased against him. Petitioner claims that the judge regularly used racist language and antisemitic slurs. Plaintiff's Application for a Writ of Habeas Corpus contends:

The ... claim presents newly uncovered evidence that trial judge Vickers Cunningham referred to Mr. Halprin as a “goddamn kike” and “fuckin’ Jew,” and to his Latino co-defendants as “wetbacks,” when the judge bragged about his role in convicting and sentencing to death the Jewish and Latino members of the Texas 7. The evidence of Judge Cunningham’s bias comes primarily from first-hand accounts of disinterested witnesses to his prejudiced statements... and Judge Cunningham’s lifelong association with racist and anti-Semitic role models....

The court remanded the case for determination if petitioner's due process and free exercise rights were violated. Courthouse News Service reports on the decision.

Tampa Conversion Therapy Ban Invalidated On Preemption Grounds

In Vazzo v. City of Tampa, (MD FL, Oct. 4, 2019), a Florida federal district court invalidated a Tampa city ordinance barring licensed psychotherapists and counselors from practicing sexual orientation change efforts on minors. The court avoided the significant constitutional issues posed by the conversion therapy ban, and instead held:

The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline. Accordingly, the Court strikes the Ordinance under the implied preemption doctrine and grants the Plaintiffs’ motion for summary judgment.

(See prior related posting.) CBS12 reports on the decision.

Court Refuses To Enforce Jewish Marriage Contract Provision

In Tilsen v. Benson, 2019 Conn. Super. LEXIS 2475 (CT Super. Ct., Sept. 11, 2019), a Connecticut trial court opinion that has just become available on LEXIS, the court rejected plaintiff's argument that it could constitutionally apply neutral principles of law to enforce a provision in a ketubah (Jewish marriage contract) as if it were a pre-nuptial agreement. According to the court, the ketubah provided that any divorce would be "according to Torah law."  The husband argued that this means there should be a 50/50 division of property with no obligation for continuing alimony payments. In denying plaintiff's motion to enforce the ketubah, the court said in part:

To educate the court about the parties' chosen law, the plaintiff submitted the affidavit of a rabbi ... describing his understanding of Torah law as it pertains to alimony and property division. The defendant also submitted the affidavit of a rabbi. However, the defendant's rabbinical expert disagrees with the plaintiff's rabbinical expert.

It is clear, then, that enforcement of the "Torah law" provision in the Ketubah would require the court to choose between competing interpretations of Jewish law. But resolving such a dispute is precisely what the neutral principles approach forbids a court to do. The first amendment does not permit courts to resolve disputes over the meaning and interpretation of the Torah-or the Koran, the New Testament or any other religious text....

EEOC Sues Over Firing of Jehovah's Witness Employee

The EEOC announced this week that it has filed suit in a New York federal district court against Pedidatrics 2000 for religious discrimination in firing a Jehovah's Witness employee.  When the employee requested not to attend a December holiday party because it would violate her religious practices, she was fired by the health care company's owner who texted her: "[W]e can't tolerate religious privileges from anyone." JD Supra reports on the lawsuit.

Supreme Court Grants Certiorari On Louisiana Abortion Law Restriction

The U.S. Supreme Court today agreed to hear appeals involving the constitutionality of Louisiana's abortion law.  The Louisiana Unsafe Abortion Protection Act requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. The cases are June Medical Services LLC v. Gee, (Docket No. 18-1323, cert. granted 10/4/2019), and Gee v. June Medical Services, LLC, (Docket No. 18-1460, cert. granted 10/4/2019). (Order list).  In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction preventing the Act from going into effect. (See prior posting.) In September 2018, the U.S. 5th Circuit Court of Appeals upheld the statute. (Full text of opinion.) In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. (Full text.) Plaintiff appealed the substantive holding to the Supreme Court. (SCOTUSblog case page). The state cross-appealed the grant of standing to plaintiffs. (SCOTUSblog case page). NPR reports on the grant of certiorari.

Northern Ireland's Abortion Restrictions Violate European Human Rights Convention

Yesterday, the High Court in Northern Ireland held that Northern Ireland's abortion law is incompatible with Article 8 of the European Convention on Human Rights insofar as it bars abortions in cases of fatal fetal abnormality. As explained in a Summary of Judgment issued by the court:

In June 2018, the UK Supreme Court ... dismissed an appeal by the Northern Ireland Human Rights Commission... over the legality of the abortion laws in Northern Ireland. A termination is only permitted if a woman’s life is at risk or if there is a risk of permanent and serious damage to her mental or physical health.... The majority of the UKSC held that the abortion law in Northern Ireland was incompatible with Article 8 ECHR [European Convention on Human Rights] in cases of FFA, rape and incest in that it denied women in these situations a lawful termination of their pregnancies for those who wish for it but dismissed the appeal, however, on the procedural issue that the NIHRC did not have the standing to bring the appeal....

Mrs Justice Keegan said she intended to follow the ruling of the UKSC that the law in Northern Ireland is incompatible with human rights in cases of FFA. She declined to follow a course which involved her effectively reopening the arguments already made and decided in relation to Article 8 incompatibility by the UKSC. The judge commented that the decision on substantive compatibility issues was intended by the UKSC to have persuasive force and that any matters of contention in respect of that decision should be corrected by the UKSC itself or by the European Court of Human Rights (“ECtHR”).

A full text of the decision is not yet posted online. The Guardian reports on the decision.

New Survey On Religious Activity In Public Schools

Pew Research Center has released a new survey titled For a Lot of American Teens, Religion Is a Regular Part of the Public School Day. (Full text; Summary)

The survey finds that about four-in-ten teens who attend public schools say they commonly (either “often” or “sometimes”) see other students praying before sporting events at school. This includes about half of teenage public schoolers who live in the South, where students are more likely than those in other regions to witness and partake in various religious expressions at school.

In addition, roughly half of U.S. teens who attend public school say they commonly see other students in their school wearing religious clothing (such as an Islamic headscarf) or jewelry with religious symbols (such as a necklace with a Christian cross or a Jewish Star of David).

About a quarter of teens who attend public schools say they often or sometimes see students invite other students to religious youth groups or worship services. About one-in-six (16%) often or sometimes see other students praying before lunch in their public school. And 8% report that they commonly see other teenagers reading religious scripture outside of class during the school day.....

... 8% of public school students say they have ever had a teacher lead their class in prayer – an action that the courts have ruled is a violation of the Establishment Clause of the Constitution.1 An identical share (8%) say they have had a teacher read from the Bible as an example of literature, which the courts have said is fine.

Court Refuses To Dismiss Challenge To Nativity Scene

In Woodring v. Jackson County, Indiana, (SD IN, Sept. 30, 2019), an Indiana federal district court refused to dismiss an Establishment Clause challenge to a nativity scene that is placed on the Jackson County courthouse lawn each December.  The court said in part:

The Court has no doubt that a lone nativity scene of this size on prominent display on government property would be one of those nativity scenes that gives a reasonable viewer the impression of religious endorsement. Here, however, the nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers.

Nevertheless, two facts alleged in Woodring’s Complaint persuade the Court that this nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display. According to the Complaint, Santa and the carolers are placed “to the far side of the display, away from the side of the sidewalk where the crèche is located.” .... 

That brings the Court to the second decisive fact. The history of this display is that, for many years, it was only a nativity scene. But just recently, after a complaint from the Freedom from Religion Foundation, Jackson County added some secular symbols as a palliative.

Seymour Indiana Tribune reports on the decision.

Lawsuit Claims Deputy Coerced Driver To Be Baptized

The Chattanooga Times Free Press reports on an unusual lawsuit filed this week by a woman against two Hamilton County (TN) sheriff's deputies in a Tennessee state trial court.  The lawsuit, asking for $11 million in damages, alleges that Deputy Daniel Wilkey initiated an unjustified traffic stop of plaintiff, and then conducted an intrusive pat down search of her for methamphetamine.  He discovered only a marijuana cigarette butt. Then, according to the paper:

After searching the woman's vehicle, he asked her if she had ever been "saved" and whether she believed in Jesus Christ, the lawsuit states. He told her that God was "talking to him during the vehicle search" and that he "felt the Lord wanted him to baptize [her]."

Wilkey then told her to go inside the home she was visiting and grab two towels for a baptism.... He said if she let him baptize her, he would issue her only a criminal citation for the possession of marijuana.....

When the woman returned outside, Wilkey told her to drive her own vehicle and follow him..... [T]hey eventually arrived at a boat ramp at Soddy Lake.... At that point, another deputy — Jacob Goforth — arrived.... Wilkey told the woman that Goforth was there because, "in order for a baptism to be valid, a witness must 'attest' to the ritual."

Wilkey then "stripped nearly naked".... He then led her into nearly waist-deep water, placed one hand on her back and the other on her breasts and completely submerged her under the water....

Pompeo Speaks At Vatican Symposium On Faith-Based Organizations

Secretary of State Mike Pompeo spoke yesterday (full text and video of remarks) in the Vatican at a symposium titled Pathways to Achieving Human Dignity: Partnering with Faith-Based Organizations. The event was co-sponsored by the Holy See’s Secretariat of State and the U.S. Embassy to the Holy See. (Background on event). In his remarks, Secretary Pompeo particularly highlighted the persecution of Uighurs in China, but called out a number of other nations as well, saying in part:

We must recognize the roots of religious repression.  Authoritarian regimes and autocrats will never accept a power higher than their own.  And that causes all sorts of assaults on human dignity.

We must exercise our moral voice to confront them.

Chabad House's Suit Against Zoning Officials Is Dismissed

In Friends of Lubavitch v. Baltimore County, Maryland, (D MD, Sept. 30, 2019), a Maryland federal district court dismissed a suit in which a Chabad House serving students at Towson University and Goucher College challenged a state court order requiring it to raze the expansion of its building which was constructed in violation of zoning rules and a deed restriction.  Plaintiff claimed that implementation of the county's land use rules infringed its rights under RLUIPA and the 1st and 14th Amendments.

Cert. Filed By Little Sisters of the Poor Over Contraceptive Mandate Exemption

A petition for certiorari (full text) was filed yesterday, captioned Little Sisters of the Poor Saints Peter and Paul Home v. Commonwealth of Pennsylvania, (U.S. Sup. Ct., filed 10/1/2019). The petition seeks review of the 3rd Circuit's decision in Commonwealth of Pennsylvania v. President of the United States of America which affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting.) Little Sisters of the Poor who are seeking Supreme Court review were intervenors in the 3rd Circuit case. (See prior posting.) The petition for review sets out the questions presented:

1. Whether a litigant who is directly protected by an administrative rule and has been allowed to intervene to defend it lacks standing to appeal a decision invalidating the rule if the litigant is also protected by an injunction from a different court?

2. Whether the federal government lawfully exempted religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage?

Becket issued a press release announcing the filing of the cert. petition.

Courts Rule On Virginia and Georgia Abortion Statutes

In Falls Church Medical Center, LLC v. Oliver, (ED VA, Sept. 30, 2019), a Virginia federal district court upheld some parts of Virginia's statute regulating abortions, but invalidated other parts, saying in part:

[E]nforcement of the ... Guidelines with respect to first trimester abortion procedures, and the requirement that non-surgical second trimester abortion procedures-up to the point of viability-be performed in outpatient surgical hospitals, present a substantial obstacle to women seeking an abortion and impose an undue burden on that right, in violation of the Due Process Clause of the Fourteenth Amendment.... On the other hand, evidence of the heightened potential for complications warrant the requirement that surgical abortion procedures during the second trimester should be performed in a hospital setting.

... [B]ased on a seamless line of authority, this Court cannot conclude that the Physician-Only law ... is either unduly burdensome or improvident when weighed against the State's well-recognized responsibility for ensuring safe abortion care.

... Plaintiffs have failed to demonstrate by a preponderance of the evidence that ... requiring a mandatory ultrasound and waiting period, amount to a substantial obstacle preventing a woman's access to abortion care in Virginia. Plaintiffs have further failed to show that the statute's informed consent requirement imposes an undue burden.

Undoubtedly, the requirement that abortion clinics submit to biennial inspection ... is burdensome for clinic personnel. However, it is no more burdensome than inspection requirements for other medical facilities that provide similar services....

AP reports on the decision.

In SisterSong Women of Color Reproductive Justice Collective v. Kemp, (ND GA, Oct. 1, 2019), a Georgia federal district court issued a preliminary injunction against enforcement of Georgia's statute that prohibits abortions after detection of a fetal heartbeat.  The court said in part:

Plaintiffs have therefore met their burden of showing that H.B. 481, in prohibiting abortions after a fetal heartbeat is detectable, would operate as “a substantial obstacle to a woman’s choice to undergo an abortion” in “a large fraction” of relevant cases.....

Furthermore, as discussed above in detail, the Supreme Court has repeatedly and unequivocally held that a State may not ban abortion prior to viability.

Center for Reproductive Rights issued a press release announcing the decision.

Christian Student Group Can Retain Selective Leadership Requirements

In Intervarsity Christian Fellowship USA v. University of Iowa, (SD IA, Sept. 27, 2019), an Iowa federal district court held that the University of Iowa and three of its administrators violated the free speech and free exercise rights of a Christian student organization when it revoked its registered student organization status. The University's action was taken because Intervarsity Christian Fellowship required its leaders to affirm the groups Christian statement of faith. The court said in part:

by granting the exceptions it has to the Human Rights Policy and refusing to make a similar exception for InterVarsity, the University has made a value judgment that its secular reasons for deviating from the Human Rights Policy are more important than InterVarsity’s religious reasons for the deviation it seeks. Because this reflects an impermissible “value judgment in favor of secular motivations,” ... the University’s decision to deregister InterVarsity is subject to strict scrutiny.

Becket issued a press release announcing the decision.

Fired Teacher Sues Saying Requirements On Pronouns For Transgender Students Violated His Rights

A Virginia high school teacher filed suit yesterday in a Virginia state trial court challenging his firing for refusing to use male pronouns to refer to a transgender student in his French class.  The complaint (full text) in Vlaming v. West Point School Board, (VA Cir. Ct., filed 10/1-/2019), claims that the teacher's free speech and free exercise rights, as well as other rights, were violated. Plaintiff contends that the case is

about whether the government may force [plaintiff] to express ideas about human nature, unrelated to the school's curriculum, that he believes are false.

Plaintiff also contends that

[his] views and expression related to gender identity, would require [him] to violate his sincerely held religious beliefs.

Washington Post reports on the lawsuit.

President Trump Sends Rosh Hashanah Greetings

The White House today issued a Presidential Statement on Rosh Hashanah (full text). The holiday begins this evening.  The statement says in part:

...[W]e are all reminded of the virtues we can incorporate into our lives to better us as a Nation—kindness, compassion, and love. Together, with devotion to these ideals, we can form more sincere bonds with people of all faiths to help spread peace and prosperity in the United States and abroad.

Melania and I pray that those celebrating Rosh Hashanah build a more meaningful relationship with God throughout the High Holy Days.  May the Almighty bless you all.

Recent Articles of Interest

From SSRN:

• Patrick Parkinson, Is Gender Identity Discrimination a Religious Freedom Issue?, (September 6, 2019).
• Robin Fretwell Wilson, Family Law Isolationism and 'Church, State, and Family', (Forthcoming, Emory Journal of Law and Religion).
• Nicholas Aroney, Religious Discrimination and Religious Freedom: An Evaluation of the Exposure Draft of the Australian Religious Discrimination Bill 2019, (September 17, 2019).
• Steven Douglas Smith, One Step Enough, (San Diego Legal Studies Paper No. 19-414 (2019)).
• Sean T. Murphy, Philippines RH Act: Rx for Controversy Diatribe by Philippines’ President Turns Back the Clock, (September 16, 2019).
• James Rooney, International Human Rights as a Source of Unenumerated Rights: Lessons from the Natural Law, (September 5, 2019).
• Elias Al-Hihi & Asem Khalil, International Law within the Palestinian Legal System: A Call for Granting Human Rights Treaties a Special Constitutional Status, (September 13, 2019).
• Dale Carpenter, Born in Dissent: Free Speech and Gay Rights, (72 SMU Law Review 375 (2019)).
• Maryam Saeed, Challenges of Islamic Insurance (Takaful) Globally, (COMSATS Journal of Islamic Finance, 2019).
• Morr Link & Yoram Haftel, Islamic Legal Tradition and the Choice of Investment Arbitration Forums, (The Review of International Political Economy, Forthcoming).

Court In Indian State Bans Animal Sacrifice

In Bhattacharjee v. State of  Tripura, (Tripura High Ct., Sept. 27, 2019), a 2-judge panel of the High Court in a state in northeast India prohibited the sacrifice of animals or birds in any temples in the state. In its 72-page opinion, the court held that only practices which are an "essential and integral part of religion" are protected by Art. 25(1) of India's Constitution.  The court said in part:

[I]t cannot be said that the practice of animal sacrifice is essential to the core of the tenets rituals, ceremonies, ceremonies, beliefs observances or the practice of religion within the temple of Mata Tripureswari or other temples managed by the State within the State of Tripura....

In the instant case, sacrifice of animal in temples is not done out of necessity but merely on the unsighted conviction and credence that such activity would please the deity, who in return would bestow them with blessings and wellbeing. ...

The ban on sacrifice of animal ... does not infringe the fundamental right as enshrined in Part III under Art 25(1) of the constitution for the reason that such practice is contrary to constitutional morality and health....

The animals have basic rights and we have to recognise and protect them. The animal and bird breath like us. They are also creation of God. They have also a right to live in harmony with human beings and the nature.... 

The Leaflet discusses the decision at length.

DOJ Backs Catholic Archdiocese In Firing of Teacher For Same-Sex Marriage

On Friday, the Department of Justice filed a Statement of Interest (full text) in an Indiana state trial court in Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super Ct., 9/27/2019).  In the suit, a teacher in a Catholic school in Indianapolis claims that the Archdiocese wrongly interfered with his contractual relationship with the school when the Archdiocese ordered the school to dismiss the teacher because of his public same-sex marriage. (See prior posting.)  DOJ argued that the First Amendment requires the court to dismiss the teacher's complaint:

The First Amendment bars this action for at least two independent reasons. First, Plaintiff’s action seeks to penalize an indisputably expressive association—the Archdiocese—for deciding which schools may identify as Catholic under its associational umbrella.....

Second, Plaintiff seeks to embroil this Court in a dispute over the Archdiocese’s application of Catholic law, in violation of the church-autonomy doctrine.

A Justice Department press release announced its filing with the court.

Michigan Catholic Adoption Agency Gets Preliminary Injunction Protecting Its Policy on LGBTQ Couples

In Buck v. Gordon, (WD MI, Sept. 26, 2019), a Michigan federal district court issued a preliminary injunction to prevent the state from requiring that a Catholic adoption and foster care agency place children with same-sex couples. The agency currently refers such couples to other agencies.  As summarized by the court:

The State pays St. Vincent to place children with foster or adoptive parents certified as suitable by the State. St. Vincent has done that faithfully, regardless of whether the certified parents were opposite sex, same-sex, or unmarried couples. St. Vincent would like to continue doing so under existing and renewed contracts with the State.  

What St. Vincent has not done and will not do is give up its traditional Catholic belief that marriage as instituted by God is for one man and one woman. Based on that belief, St. Vincent has exercised its discretion to ensure that it is not in the position of having to review and recommend to the State whether to certify a same-sex or unmarried couple, and to refer those cases to agencies that do not have a religious confession preventing an honest evaluation and recommendation. In 2015, the Michigan legislature enacted legislation designed to protect that choice, and until January of 2019, the State defended the right of the State and St. Vincent to make that choice.

That changed when Defendant Attorney General Nessel took office. Leading up to and during the 2018 general election campaign, she made it clear that she considered beliefs like St. Vincent’s to be the product of hate. She stated that the 2015 law seeking to protect St. Vincent’s practice was indefensible and had discriminatory animus as its sole purpose. After her election, she ... put St. Vincent in the position of either giving up its belief or giving up its contract with the State. That kind of targeted attack on a sincerely held religious belief is what calls for strict scrutiny in this case and supports entry of a preliminary injunction preserving the status quo while the case is fully litigated.

Detroit News reports on the decision.

House Holds Hearing on Trump's "Muslim Ban"

On Sept. 24, two subcommittees of the House Judiciary Committee held a joint hearing on Oversight of the Trump Administration’s Muslim Ban. A video of the full 4-hour hearing, along with copies of the prepared testimony of numerous witnesses and letters from other interested organizations are all available on the Judiciary Committee's website. [Thanks to Michael Lieberman for the lead.]

"Church Autonomy" Requires Dismissal of Fired Faculty Member's Claims

In Garrick v. Moody Bible Institute, (ND IL, Sept. 25, 2019), an Illinois federal district court held that the "church autonomy" doctrine requires dismissal of claims by a former faculty member of a religious college that she was terminated because of her advocacy in favor of women serving as clergy members. The court said in part:

Garrick’s disagreement with Moody’s beliefs on the role of women in the ministry underlies the majority of Garrick’s allegations..... Under these circumstances, if the Court were to delve into the disputes posed by Garrick, it would impermissibly inject the auspices of government into religious doctrine and governance.

However the court said plaintiff could refile Title VII claims if they are untethered from her disagreements with Moody’s religious views.

Muslim Community Center's Claim of Discrimination In Permitting Process Must Proceed To Trial

In OT, LLC v. Harford County, Maryland, (D MD, Sept. 23, 2019), a Maryland federal district court refused to grant summary judgment to either side on almost all the claims by a Muslim group seeking permits to construct a community center. Plaintiffs contend that delays in approval were motivated by religious discrimination in violation of various constitutional and statutory provisions and imposed a substantial burden on their free exercise of religion in violation of RLUIPA.  The court said in part:

Importantly, “a government decision influenced by community members’ religious bias is unlawful, even if the government decision makers display no bias themselves....

Here, Plaintiffs contend that the sequence of events leading up to the County’s decision, departures from the County’s normal procedures, and contemporary statements by County decision-makers demonstrate that County Defendants’ actions were motived by the community’s anti-Muslim beliefs....

Conversely, County Defendants maintain that their decisions here were motivated by their desire to conform to existing practices and the County Code....

[T]he Court concludes that there is a genuine dispute of material fact as to the intent of the County Defendants....

The court similarly concluded that there was a genuine dispute of fact on whether the delay imposed a substantial burden on plaintiffs' right of religious exercise.

SPLC's "Hate Group" Designation For Christian Ministry For LGBT Views Is Protected By 1st Amendment

In Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., (MD AL, Sept. 19, 2019), an Alabama federal district court, in an interesting 141-page opinion, dismissed claims by a Christian television ministry against the Southern Poverty Law Center and Amazon's charitable program. As summarized by the court:

The lawsuit is based largely on Coral Ridge’s allegations that, because of its religious opposition to homosexual conduct, SPLC has designated it as a “hate group” and that, because of this designation, Amazon and AmazonSmile have excluded it from receiving donations through the AmazonSmile charitable-giving program.

Coral Ridge has three claims against SPLC: a state claim that its “hate group” designation is defamatory and federal claims for false association and false advertising under the Lanham Act, 15 U.S.C. § 1125. Coral Ridge has a single claim against the Amazon defendants: a federal claim that they excluded it from the AmazonSmile charitable-giving program based on religion, in violation of Title II of the Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq.

The ministry conceded that it was a "public figure" for purposes of its defamation claim Engaging in a lengthy discussion of the meaning of "hate group", the court rejected the ministry's claim because "An alleged defamatory statement is generally not provable as false when it labels the plaintiff with a term that has an imprecise and debatable meaning." The court went on to say that even if there were a commonly understood definition of "hate group",  the defamation claim should still be dismissed:

To find actual malice just because SPLC publicized a meaning of “hate group” that conflicted with the common understanding of the term would severely undermine debate and free speech about a matter of public concern. This is because, even if the term had achieved a commonly understood meaning, that meaning would not be fixed forever, but rather could evolve through public debate. To sanction a speaker for promoting a genuinely held dissenting view of the meaning of “hate group” would be akin to punishing a speaker for advocating new conceptions of terms like “terrorist,” “extremist,” “sexist,” “racist,” “radical

The court rejected the ministry's Lanham Act claims, finding that they are subject to the same heightened First Amendment standards, not the lower commercial speech standards.

The court also rejected the ministry's claim that Amazon violated the public accommodation provision of the 1964 Civil Rights Act in excluding it from its charitable giving program, saying in part:

Even if it were assumed that the Amazon defendants are places of public accommodation subject to Title II, seeking to receive donations through the AmazonSmile program does not qualify as a service, privilege, or advantage, etc. protected by the statute’s anti-discrimination prohibition. This is because the Amazon defendants limit the ability to receive such donations exclusively to 26 U.S.C. § 501(c)(3) organizations and therefore do not make that ability open to the public. Moreover, an alternative ground for dismissing the claim is that Coral Ridge has not plausibly alleged that the Amazon defendants discriminated against it based on religion.

The court concluded its opinion:

The court should not be understood as even suggesting that Coral Ridge is or is not a “hate group.” It has merely held that SPLC’s labeling of the group as such is protected by the First Amendment....  

SPLC issued a press release announcing the decision.

Break-Away Diocese Cannot Use Former Trademarked Names

In vonRosenberg v. Lawrence, (D SC, Sept. 19, 2019), a South Carolina federal district court,in a 73-page opinion, resolved a trademark dispute between The Episcopal Church and a break-away diocese.  As summarize by World Intellectual Property Review:

A US judge has ordered a former South Carolina diocese of the Episcopal Church to change its name, after concluding the breakaway group was infringing the Episcopal Church’s trademark-protected diocesan shield.

On Thursday, September 19, District Judge Richard Gergel issued an injunction against the breakaway diocese, ordering the group not to use nine trademarks associated with the Episcopal Church and ... The Episcopal Church in South Carolina, an affiliate of the national church.

Jewish Nursing Home Is Exempt From Title VII's Religious Discrimination Provision

In Shand v. Charles E. Smith Life Communities, (D MD, Sept. 23, 2019), a Maryland federal district court held that a Jewish nursing home, Hebrew Home of Greater Washington, is a religious organization for purposes of in Title VII. Under 42 U.S.C. § 2000e-1, religious organizations are exempt from the employment discrimination provisions of Title VII "with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such [organization] ... of its activities."  In the lawsuit, a geriatric nursing assistant claimed the nursing home had failed to grant her request for a religious accommodation.

Death-Qualifying Jurors Does Not Infringe Their Free Exercise Rights

In Jackson v. State of Alabama, (AL Ct. Crim. App., Sept. 20, 2019), an Alabama state appeals court in a 135-page opinion dealing with numerous challenges upheld appellant's death sentence.  In one portion of the opinion (pp. 34-40), the court, relying extensively on precedent from other federal district courts, concluded that death-qualifying prospective jurors does not violate the jurors' free exercise of religion.