Hearing Officer Recommends License For Orthodox Jewish Women's Ambulance Service

A hearing officer's Nov. 11 report (full text) to New York City's Regional Emergency Medical Services Council recommends that an Orthodox Jewish women's organization known as Ezras Nashim be granted a certificate of need so it can operate an ambulance service directed to Orthodox Jewish women.  The Forward sets out some background:

Ezras Nashim, the female team which serves as emergency medical technicians in Boro Park, Brooklyn, was founded because Orthodox women in that community are often uncomfortable with male medics, even in emergencies. Their religious value of modesty prohibits men and women to touch unless they are husband and wife or close relatives.

Founded with little money and in the face of much community opposition in 2014, Ezras Nashim has operated by driving around in its members’ own cars. Now they’re trying to grow.... But the Orthodox-run male EMT service, Hatzolah, that opposed their founding is trying to block the ambulance application. The fight over the ambulance reflects a much broader communal debate about female modesty, and who gets to define it — men or women?

The Hearing Officer said in part:

A conservative approach would deny the request for an ambulance certificate on the strength of faster response times by all-male Hatzolah, or slower non-culturally aware FDNY and other responders. But that approach ignores the clear need that exists among the Orthodox Jewish women.

The application filed by Ezras Nashim, as well as video and transcripts of the public hearing on the application are available from REMSCO's website.

Suit Challenges New York's Ban On Reproductive Health Care Employment Discrimination

A lawsuit was filed last week in a New York federal district court by a pro-life pregnancy care center, a religious pro-life pregnancy care center membership organization and a Baptist church challenging the constitutionality of  New York's SB 660 which was signed into law earlier this month. the new law prohibits employers from taking action against an employee because of reproductive health care decisions by the employee or their dependents.  It bars employers from accessing information about employees' reproductive health decision making or requiring waivers by employees of their right to make such decisions. The complaint (full text) in CompassCare v. Cuomo, ND NY, filed 11/14/2019), alleges in part:

SB 660 is a transparent attempt to meddle in the affairs of religious and pro-life organizations—including but not limited to pregnancy care centers, churches, and schools—by forcing them to employ and associate with those persons who do not share or live by the organizations’ beliefs regarding abortion, contraception, and the impropriety of sexual relations outside the context of a marriage between a man and a woman.....

Taken together, these requirements compromise the very reason for being of these organizations, which is to promote life, oppose abortion, and teach and live a sexual ethic consistent with biblical principles.

The suit claims that the law violates their free speech and free exercise rights. CNA reports on the lawsuit.

Lawsuit Opposes Religious Activities In Tennessee School

Two families who are atheists have filed suit against a Tennessee school board challenging religious practices at a Smith County middle school and high school.  The complaint (full text) in Butler v. Smith County Board of Education, (MD TN, filed 11/18/2019), alleges in part:

For years, [school officials] have routinely promoted and inculcated Christian religious beliefs by sponsoring religious activities and conveying religious messages to students at these two schools. School-sponsored prayer is common at athletic and other school events; religious iconography and messages adorn the walls of the schools; and teachers proselytize their Christian faith.

ACLU of Tennessee issued a press release with more background on the case. KRTV News reports on the lawsuit.

In Canada, Parent's Suit Challenges Classroom Demonstration of Smudging Ceremony

CTV News and Nanaimo News reported yesterday on the opening of a trial in Nanaimo, British Columbia in a suit against a school district because of a classroom demonstration of a Nuu-chah-nulth smudging ceremony. Plaintiff, the mother of a child in the elementary school classroom where the demonstration was carried out in 2015, says that the exercise violated her daughter's rights.  The daughter asked to leave the room, but her teacher told her that this would be rude and that she must stay in class and participate.  The lawyer filing the case said: "We believe that the government cannot compel citizens to participate in supernatural or religious ceremonies."

Suit Filed Against Quebec's Ban On Public Employees Wearing Religious Symbols

AP reported yesterday that in the Canadian province of Quebec, another lawsuit has been filed challenging Bill 21. The law, passed earlier this year, prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. (See prior posting.) This suit was brought by Fédération Autonome de l'Enseignement, a union representing 45,000 teachers.  Challengers claim the law not only violates freedom of religion, but also equality rights because its main impact is on teachers, 75% of whom are women.

Satanic Temple Can Proceed In Its Attempt To Offer City Council Invocation

In The Satanic Temple, Inc. v. City of Scottsdale, (D AZ, Nov. 18, 2019), an Arizona federal district court refused to dismiss a suit by The Satanic Temple (TST). Scottsdale City Council refused to allow the head of TST to deliver an invocation at a City Council meeting. The court, in finding that plaintiffs had standing to bring the lawsuit reasoned in part:

The injury alleged is discrimination – that Plaintiffs have been denied the opportunity to give an invocation when other religious groups have been allowed that privilege....

Although Establishment Clause violations can be asserted by the irreligious as well as the religious, such as a non-believing school student who is compelled to recite a prayer, Plaintiffs’ religious-discrimination claim necessarily requires that they be a religion....

In arguing that Plaintiffs are not religious, Defendant does not rely on any specific judicial definition. Defendant instead asserts that courts have distinguished between religious and secular prayers in legislative prayer cases....

The evidence discussed above suggests that Plaintiffs view their beliefs as religious and sincerely held. Whether Plaintiffs are religious for purposes of the merits of this case – for purposes of showing that the City’s action in the sphere of legislative prayer amounted to religious discrimination – is an issue for trial.

Recent Articles of Interest

From SSRN:

• Nathan S. Chapman, The Practice of Law As Christian Discipleship, (Forthcoming, Pepperdine Law Review (solicited paper for a Festschrift for Robert Cochran)).
• James M. Donovan & Alyssa Oakley Milby, Too Much, Too Soon? 'Obergefell' as Applied Equality Practice, (Mississippi Law Journal, Vol. 88, Forthcoming).
• Kathy L. Cerminara, Today's Crusades: A Therapeutic Jurisprudential Critique of Faith-Based Civil Rights in Health Care, (October 1, 2019).
• Cecilia M. Bailliet, Protection of Refugees, Returnees, Migrants, and Internally Displaced Persons Against Racism, Xenophobia, and Discriminatory Practices,(July 5, 2018).
• Gail L. Heriot, Dissenting Statement of Commissioner Gail Heriot in In the Name of Hate: Examining the Federal Government's Role in Responding to Hate Crimes, a Report of the U.S. Commission on Civil Rights, San Diego Legal Studies Paper No. 19-422 (2019).
• Rosa Celorio, Discrimination and the Regional Human Rights Protection Systems: The Enigma of Effectiveness, (University of Pennsylvania Journal of International Law, Vol. 40, No. 781, 2019).
• Gail L. Heriot, Title VII Disparate Impact Liability Makes Almost Everything Presumptively Illegal … It Gives the Federal Bureaucracy Extraordinary Discretionary Power. But What Does It Do to the Rule of Law? And Who Benefits?, (San Diego Legal Studies Paper No. 19-421 (2019).
• Albert Feuer, How Savings and Retirement Benefit Distributions May Prudently Be Used to Make Charitable Gifts, (53 No. 1 NYSBA TR. & EST. L. SEC. J. 7 (Spring/Summer 2019)).

From SSRN: (Non-U.S. Law):

• Muhammad Wajid Munir, The Politics of Islamic Law: Local Elites, Colonial Authority, and the Making of the Muslim State: A Book Review, (LUMS Law Journal, Forthcoming).
• Fahad Siddiqi, Law of Appointment of Guardian Under the Guardian & Wards Act 1890 (2017).
• Barbara Havelkova & Mathias Möschel, Introduction: Anti-Discrimination Law's Fit into Civil Law Jurisdictions and the Factors Influencing It, (Havelková B and Möschel M (eds), Anti-Discrimination Law in Civil Law Jurisdictions (Oxford University Press, Expected 2019))

New Report:

• Elizabeth Reiner Platt, Katherine Franke, Kira Shepherd, Lilia Hadjiivanova, Whose Faith Matters? The Fight for Religious Liberty Beyond the Christian Right, (Columbia Univ. Law School, 2019).

House Holds Hearings On Human Rights Issues In India's Jammu and Kashmir

Last Thursday, the House of Representatives Tom Lantos Human Rights Commission held hearings on Jammu and Kashmir in Context. The Committee sets out the context:

The Indian government’s decision to change the legal status of the Muslim-majority state of Jammu and Kashmir, announced in August and effective as of October 31, 2019, has attracted intense attention due to persistent reports of human rights violations, including a crackdown on freedom of expression; the arbitrary “preventive” detention of hundreds of politicians, lawyers, journalists, and other civil society figures and related fears of enforced disappearance; and the use of excessive force against protesters. The increased militarization of the security presence in the region and the economic and social consequences of the central government’s actions, including continuing restrictions on internet and phones, have also provoked widespread concern. In addition, militants have targeted migrant workers from outsider Kashmir, and have threatened businesses to maintain a protest shutdown.

A video of the two and one-half hour hearing along with transcripts of witness' prepared statements and material submitted for the record are all available at the Commission's website. These include testimony from the U.S. Commission on International Religious Freedom focusing on religious freedom for minorities in India.

Planned Parenthood Wins Suit Against Activists Who Released Secret Manipulated Videos

Newsweek reports that a federal district court jury in San Francisco has awarded nearly $2 million in punitive and compensatory damages to Planned Parenthood:

Planned Parenthood won a lawsuit worth $2 million Friday, after a jury found that an anti-abortion group had broken multiple laws by secretly recording and releasing manipulatively edited video footage of doctors and staff.

The Center for Medical Progress and its founder David Daleiden were found guilty of fraud, trespassing and illegal secret recording.... Planned Parenthood says that clandestinely recorded video footage was manipulated and edited to make it appear as though they were attempting to profit off of fetal tissue donations, something they deny has ever taken place.

The videos were taken between 2013 and 2015, and apparently feature Daleiden and co-defendant Sandra Merritt pretending to be representatives of a fake company called "BioMax."

International Criminal Court Authorizes Investigation Into Persecution of Rohingya By Myanmar

Yesterday, in a 58-page decision (full text), a 3-judge Pre-Trial Chamber of the International Criminal Court sitting at The Hague authorized an investigation into alleged crimes against humanity committed against the Rohingya Muslims by Myanmar. The Court's press release summarizes the decision:

The Chamber concluded that the Court may exercise jurisdiction over crimes when part of the criminal conduct takes place on the territory of a State Party. While Myanmar is not a State Party, Bangladesh ratified the ICC Rome statute in 2010. Upon review of the available information, the Chamber accepted that there exists a reasonable basis to believe widespread and/or systematic acts of violence may have been committed that could qualify as the crimes against humanity of deportation across the Myanmar-Bangladesh border and persecution on grounds of ethnicity and/or religion against the Rohingya population..... 

Noting the scale of the alleged crimes and the number of victims allegedly involved, the Chamber considered that the situation clearly reaches the gravity threshold. According to the supporting material, an estimated 600,000 to one million Rohingya were forcibly displaced from Myanmar to neighbouring Bangladesh as a result of the alleged coercive acts. Noting the victims' views, the Chamber agreed with the Prosecutor that there are no substantial reasons to believe that an investigation into the situation would not be in the interests of justice.

Priest and His Church Sued Over Insensitive Funeral Homily

Detroit News reports on a lawsuit filed on Wednesday in a Michigan state trial court seeking damages from priest  Rev. Don LaCuesta and Our Lady of Mount Carmel Catholic Church in Temperance, Michigan for a homily which La Cuesta delivered at the funeral of plaintiff's son last December.  At the funeral of the son, who had committed suicide, LaCuesta delivered this homily which condemned suicide, but added that God can forgive it.  The priest ignored a plea by the deceased's father during the funeral to stop.  After the funeral, the Archdiocese and the priest both issued apologies. The lawsuit alleges that plaintiff, mother of the deceased, "continues to suffer great pain of mind and body, shock, severe and permanent emotional distress … and difficulty in practicing religion through the church."

School's Challenge To Disqualification From Voucher Program Moves Ahead

In Bethel Ministries, Inc. v. Salmon, (D MD, Nov. 14, 2019), a Maryland federal district court refused to dismiss a suit brought by a Christian school against state authorities claiming that the school was discriminated against on religious grounds when its eligibility to participate in the state's school voucher program (known as "BOOST") was removed. In order to participate, a school has to have a non-discrimination policy that include bans on discrimination on the basis of sexual orientation.  As explained by the court:

Bethel does not include sexual orientation or gender identity in its statement of nondiscrimination.... In the next paragraph, the handbook says, It should be noted, however, that Bethel Christian Academy supports the biblical view of marriage defined as a covenant between one man and one woman, and that God immutably bestows gender upon each person at birth as male or female to reflect his image … faculty, staff, and student conduct is expected to align with this view....

Irrespective of any language in the handbook, however, Bethel does not consider sexual orientation in the admissions process. The court reasoned:

If, as it alleges, Bethel has not discriminated on the basis of sexual orientation in admissions, then it has plausibly alleged that Defendants infringed upon several of its constitutional rights. Namely, Bethel has presented a plausible case that the Advisory Board’s determination of ineligibility was motivated by the school’s religious affiliation.

Challenge To Religious Anti-Discrimination Waiver Dismissed For Lack of Standing

In Maddonna v. U.S. Department of Health and Human Services, (D SC, Nov. 13, 2019), a South Carolina federal district court dismissed for lack of standing a challenge to action by the federal government and the state that, through a waiver of anti-discrimination requirements, allowed a religiously affiliated foster care agency to place children only with evangelical Christians. The court said in part:

Plaintiff could only conceivably attempt to assert taxpayer standing as to her claims regarding the Establishment Clause. Even then, Plaintiff has not set forth any challenge to any legislative action, but has, rather, challenged discretionary executive actions and appropriations....

 Assuming without deciding that Plaintiff’s other alleged injuries - i.e. that she was denied the opportunity to volunteer and/or become a foster parent through Miracle Hill and was discriminated against in the process - has been sufficiently alleged ..., the court finds that Plaintiff has failed to establish that such injury was fairly traceable to any Defendant....  [A]t the time Plaintiff was denied the ability to volunteer with or foster through Miracle Hill in 2014, the actions of which she complains had not taken place, and, therefore, cannot conceivably have caused or even contributed to Plaintiff’s alleged harm.

The State reports on the decision.

Gambia Sues Myanmar In International Court of Justice Over Rohingya Genocide

The International Court of Justice announced this week that the Republic of Gambia has instituted proceedings against Myanmar alleging actions taken and condoned against Rohingya Muslims violated the Genocide Convention. The full text of Gambia's Nov. 11 Application Instituting Proceedings is available from the ICJ's website. Myanmar Times reports on the filing of the case.

State Must Issue "IM GOD" Vanity License Plate

In Hart v. Thomas, (ED KY, Nov. 13, 2019), a Kentucky federal district court held that a car owner's First Amendment rights were infringed when the state refused to issue him a vanity licence plate reading "IM GOD".  The court said in part:

...[A]voidance of controversy is a valid ground for restricting speech in a nonpublic forum.... However, the Transportation Cabinet has been so inconsistent in its application of § 186.174 that it has ceased to be “consistent with [Kentucky’s] legitimate government interest” in any way. If the Transportation Cabinet genuinely wants to avoid controversy on Kentucky’s highways by preventing “promotion of any specific faith, religion, or anti-religion” from appearing on vanity plates, then it should have denied “IM4GOD”, “ASKGOD”, GR8GOD”, “LUVGOD”. But it did not.... Instead, the Transportation Cabinet has approved multiple vanity plates featuring the word “god”.... This suggests that the law as applied to Mr. Hart is neither reasonable nor viewpoint neutral. To allow such plates as “IM4GOD” and “LUVGOD” but reject “IM GOD” belies viewpoint neutrality.

FFRF issued a press release announcing the decision.

11th Circuit: Christian School Can Proceed In Challenge To Pre-Game Loudspeaker Prayer Ban

In Cambridge Christian School, Inc. v. Florida High School Athletic Association, Inc., (11th Cir., Nov. 13, 2019), the U.S. 11th Circuit Court of Appeals held that a Christian school could move ahead with its complaint that its free speech and free exercise rights were infringed when it was denied permission to broadcast a joint prayer over the loudspeaker at the state championship high school football game. Both schools in the playoff were Christian schools. In its 70-page opinion, the court said in part:

As we see it, the district court was too quick to dismiss all of Cambridge Christian’s claims out of hand. Taking the complaint in a light most favorable to the plaintiff, as we must at this stage in the proceedings, the schools’ claims for relief under the Free Speech and Free Exercise Clauses have been adequately and plausibly pled. There are too many open factual questions for us to say with confidence that the allegations cannot be proven as a matter of law. The question of whether all speech over the microphone was government speech is a heavily fact-intensive one that looks at the history of the government’s use of the medium for communicative purposes, the implication of government endorsement of messages carried over that medium, and the degree of government control over those messages.... [B]ased on this limited record, we find it plausible that the multitude of messages delivered over the loudspeaker should be viewed as private, not government, speech. And while we agree with the district court that the loudspeaker was a nonpublic forum, we conclude that Cambridge Christian has plausibly alleged that it was arbitrarily and haphazardly denied access to the forum in violation of the First Amendment. Likewise, we cannot say, again drawing all inferences in favor of the appellant, that in denying scommunal prayer over the loudspeaker, the FHSAA did not infringe on Cambridge Christian’s free exercise of religion.

WCTV News reports on the decision.

5th Circuit Upholds Stay of Execution For Buddhist Inmate

In Murphy v. Collier, (5th Cir., Nov. 12, 2019), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision, upheld a stay of execution granted last week by a Texas federal district court in the case of a Buddhist inmate who challenges the access he will have to his religious adviser prior to his execution. The district court granted a stay to allow it time to explore factual concerns about the balance between the inmate's religious rights and the prison’s valid concerns for security. (See prior posting.) Christian and Muslim inmates have access to chaplains until the moment they enter the execution chamber.  Members of other religions have access to their outside clergy only until 5:00 p.m.on the day of execution. In his majority opinion for the 5th Circuit, Judge Dennis wrote in part:

We conclude that the district court did not abuse its discretion in granting Murphy’s stay. We agree with the district court’s implicit finding that Murphy has a strong likelihood of success on the merits of his claim that the TDCJ policy violates his rights by allowing inmates who share the same faith as TDCJ-employed clergy greater access to a spiritual advisor in the death house.

Judge Elrod dissented, saying in part:

Because I believe Murphy did not demonstrate that he is likely to succeed on his brand-new, untimely, and unexhausted claim regarding the TDCJ’s pre-execution holding-area protocol, I would hold that the district court abused its discretion in granting Murphy’s motion for stay of execution.

CNN reports on the decision.

Village Sues Church Over Its Homeless Shelter

RNS reports that the affluent Chicago suburb of Village of Orland Park has filed suit against Hope Covenant Church seeking to close down its homeless shelter== the first in the village in over 30 years.  According to RNS:

With temperatures dipping down near the single digits, the seasonal shelter has housed between 15 and 50 people one night every week, including a toddler and local public high school students.

The overnight shelter, the result of a partnership with Illinois’ Beds Plus community organization, is open every Tuesday until April — unless a lawsuit by The Village of Orland Park succeeds in closing it down.

Last week, Village attorneys filed a lawsuit against the church, arguing that the shelter “constitutes an ongoing threat to public health and safety.” The lawsuit cited 28 health and safety code violations caused by the church using the building, which was intended solely for religious services, as an overnight shelter.

FBI Releases 2018 Hate Crime Statistics

Today the FBI released its 2018 Hate Crime Statistics. In 2018, 7,120 hate crime incidents were reported to the FBI by law enforcement authorities. These involved 8,496 offenses,  That was down from 7,175 incidents in 2017. Of 7,036 single-bias incidents, 20.2% (1,550 offenses) were motivated by religious bias.  57.8% of the religiously motivated incidents were anti-Jewish.  The next largest group of religiously motivated hate crimes were 14.5% which were anti-Muslim. 4.1% were anti-Sikh. 3.8% were anti-Catholic. Following release of the data, the ADL issued a press release saying in part:

It is unacceptable that Jews and Jewish institutions continue to be at the center of religion-based hate crime attacks.... We strongly urge Congress to immediately pass the Khalid Jabara and Heather Heyer National Opposition to Hate, Assault, and Threats to Equality (NO HATE) Act.

Switzerland's Rejection of Asylum Claim By Christian Convert Violates Human Rights Convention

In A.A. v. Switzerland, (ECHR, Nov. 5, 2019) (full text of decision in French), the European Court of Human Rights held that Switzerland had violated Art. 3 of the European Convention on Human Rights (prohibition of inhuman or degrading treatment) in its rejection of a claim for asylum by an Afghan national of Hazara ethnicity who was a Muslim convert to Christianity. As summarized by the Court's press release:

The Court noted that according to many international documents on the situation in Afghanistan, Afghans who had become Christians or who were suspected of conversion would be exposed to a risk of persecution by various groups. It could take the form of State persecution and result in the death penalty.

The Court noted that, while the authenticity of the applicant’s conversion in Switzerland had been accepted by the Federal Administrative Court, it had not carried out a sufficient assessment of the risks that could be personally faced by the applicant if he were returned to Afghanistan. The Court found in particular that the file did not contain any evidence that the applicant had been questioned about the everyday practice of his Christian faith since his baptism in  Switzerland and how he could, if returned, continue to practise it in Afghanistan, in particular in Kabul, where he had never lived and where he said that he would be unable to rebuild his future life.

Japan's New Emperor To Celebrate Enthronement Rite of Night With Goddess

According to WION, this Thursday brings the last major enthronement rite for Japan's new Emperor Naruhito-- spending the night with the sun goddess from whom some believe the Emperor is descended. This ceremony, known as the Daijosai has led to a suit by a group of 300 people who claim that the millions of dollars spent by the government on the ceremony violates the separation of church and state.

British Parliament Approves Regulations Extending Civil Partnerships to Opposite-Sex Couples

Law & Religion UK reports that in Britain, the Civil Partnership (Opposite-sex Couples) Regulations 2019 were approved by the House of Commons on Oct. 31 and by the House of Lords on November 5.

Recent Articles and Books of Interest

From SSRN:

• Doug Magendanz, The Fiasco of the Righteous: A Note on Justice, (October 21, 2019).
• Thomas Charles Berg, Life Patents, Religion, and Justice: A Summary of Themes, (From Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property, (Thomas C. Berg, Roman Cholij, and Simon Ravenscroft eds., Cambridge University Press, 2019, Forthcoming)).
• Sohail Wahedi, The Constitutional Dynamics of Religious Manifestations, (2019, PhD thesis).
• George Letsas, Accommodating What Needn't Be Special, (The Law & Ethics of Human Rights, Volume 10, Issue 2, Pages 319–340, 2018).
• Tanner Bean & Robin Fretwell Wilson, When Academic Freedom Collides with Religious Liberty of Religious Universities, (University of St. Thomas Law Journal, Vol. 15, No. 2, 2019).
• Barry Winston Bussey, The Independence of Judicial Conscience, (Journal of Christian Legal Thought, Vol. 9, No. 2, 2019).
• David Crawford, Gender Identity and Nihilism: Some Anthropological Implications of Recent Caselaw, (October 7, 2019).
• Craig A. Stern, A Mistake of Natural Law: Sir William Blackstone and the Anglican Way, University of Bologna Law Review, Vol. 4, No. 2 (2019)).

From SSRN (Non-U.S. Law):

• Jeffrey A. Redding, A Secular Failure: Sectarianism and Communalism in Shayara Bano v. Union of India, (October 23, 2019).
• Zubair Abbasi, Waqf in Pakistan: Rebirth of a Traditional Institution, (February 1, 2019).
• Samuel Singer, Charity Law Reform in Canada: Moving from Patchwork to Substantive Reform, (Alberta Law Review 57:3, Forthcoming).
• Jeffrey A. Redding, A Secular Failure: Sectarianism and Communalism in Shayara Bano v. Union of India (October 23, 2019).
• Ellen Johnson, Apostasy, Human Rights and Hate Crime in England and Wales: A Mixed Methods Study, (October 24, 2019).
• Md. Ashabur Rahman, Protection of Right to Divorce for Hindu Woman,(October 30, 2019).

Recent and Forthcoming Books:

• Haider Ala Hamoudi, Islamic Law in a Nutshell, (West Academic Publishing, Nov. 22, 2019).
• Thomas S. Kidd, Who Is An Evangelical?: The History of a Movement in Crisis, (Yale University Press, Sept. 24, 2019).
• Heiner Bielefeldt and Michael Wiener, Religious Freedom Under Scrutiny, (University of Pennsylvania Press, Dec. 2019).

India's Supreme Court Awards Disputed Ayodhya Site To Hindus

In M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, (India Supreme Court, Nov. 9, 2019), in an opinion that spans 1,045 pages, the Supreme Court of India ruled on a decades-old dispute over a piece of land claimed by both Hindus and Muslims.  BBC summarized the decision:

India's Supreme Court has ruled that the disputed holy site in Ayodhya in northern India should be given to Hindus who want to build a temple there.

The case, which has been bitterly contested for decades by Hindus and Muslims, centres on the ownership of the land in Uttar Pradesh state.

At the centre of the row is the 16th Century Babri mosque which was demolished by Hindu mobs in 1992, sparking riots that killed nearly 2,000 people.

Muslims would get another plot of land to construct a mosque, the court said.

In its opinion, the court explained:

The disputed land forms part of the village of Kot Rama Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar in the District of Faizabad. An old structure of a mosque existed at the site until 6 December 1992. The site has religious significance for the devotees of Lord Ram, who believe that Lord Ram was born at the disputed site. For this reason, the Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e. birth-place of Lord Ram). The Hindus assert that there existed at the disputed site an ancient temple dedicated to Lord Ram, which was demolished upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the other hand, the Muslims contended that the mosque was built by or at the behest of Babur on vacant land. Though the significance of the site for the Hindus is not denied, it is the case of the Muslims that there exists no proprietary claim of the Hindus over the disputed property.

Reuters has more extensive reporting on the decision. [Thanks to Scott Mange for the lead.]

New Stay of Execution For Buddhist Inmate Over Access To Chaplain

In Murphy v. Collier, (SD TX, Nov. 7, 2019), a Texas federal district court stayed the execution of Patrick Murphy because of differential treatment of the religious needs of prisoners being executed. The U.S. Supreme Court stayed a previous execution date because of Texas' policy to allow a Christian chaplain to be in the execution chamber, but Murphy's Buddhist spiritual adviser could only be in an adjacent room. (See prior posting.) Texas then modified its procedures and allowed no chaplains in the execution chamber. (See prior posting.) However Murphy claims that there is still differential treatment:

Murphy’s amended complaint, however, has moved its primary focus to the interaction an inmate has with his spiritual advisor before entering the execution chamber..... [A]ll inmates have access to their spiritual advisor during business hours in the two-and-a-half days leading up to the execution. An inmate, however, may only meet with non-TDCJ spiritual advisors in the holding area (generally referred to as the “death house”) between 3:00 and 4:00 p.m. on the day of execution. For the next two hours, preparations are made for the execution. The inmate may make phone calls, including to his spiritual advisor, until 5:00 p.m. Only TDCJ personnel may interact with the inmate thereafter.

The policy, however, does not place any limitation on visits by TDCJ-employed clergy, “who appear to have access to an inmate until the minute he enters the execution chamber.”... Murphy argues that the amended policy still favors some religions over others because TDCJ-employed chaplains, who are all Christian or Muslim, have greater access to the condemned than non-TDCJ employee spiritual advisors.

The court concluded:

The concerns raised by the amended complaint’s focus on the pre-execution procedure are as compelling as those in the original complaint..... A stay will allow the Court time to explore and resolve serious factual concerns about the balance between Murphy’s religious rights and the prison’s valid concerns for security.

Texas Tribune reports on the decision.

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.