Tuesday, November 26, 2019

Court Rejects Parents' Objections To Vaccination Exemption Form

In W.B. v. Crossroads Academy- Central Street, (WD MO, Nov. 22, 2019), a Missouri federal district court rejected constitutional challenges by parents to the form that Missouri requires to be completed in order to claim a religious exemption for a school child from vaccination requirements. The form contains language strongly encouraging parents to obtain vaccinations for their children. In rejecting the parents' challenge, the court said in part:
Although the Bakers say they have religious scruples against  vaccination, they are not entitled to insist on governmental silence rather than advocacy....
The parental signature at the bottom of the religious exemption form serves to verify the required parental inserts of the child’s name, the types of vaccination objected to, and the grounds for the exemption, simply asserted as “religious.” Filling in, signing and submitting the form in no way comments on or endorses the State’s message....
The nearest legal problem area may be in the contention that contraception opponents should not be required to be “complicit” in the procedure by filing exemption forms. See, Wheaton College v. Burwell, 573 U.S. 958 (2014). In this situation, however, the filing of forms does not advance vaccination use but simply results in an exemption.
Kansas News Service reports on the decision.

USCIRF Reauthorization Mired In Controversy

Under current law, the U.S. Commission on International Religious Freedom terminated on Sept. 19, 2019. Nevertheless, USCIRF continues to operate, presumably with the assumption that Congress will enact reauthorizing legislation. A bipartisan reauthorization bill (S. 2503) was introduced on Sept. 18, one day before the current termination date.  Despite its bipartisan backing, the bill, which has not moved forward, has proven to be so controversial that USCIRF Commissioner Kristina Arriaga resigned in protest over it.

Here is some of AP's account (Nov. 21) of the controversy:
The bill also would ask the commission to review “the abuse of religion to justify human rights violations” — a responsibility not defined in more detail — and restrict commissioners from using their federal title when they speak as private citizens. Additionally, commissioners would have to report to Congress on international travel paid for by sources outside their families or the government.
In a capital often dominated by partisan polarization, those proposed changes created a rare division: senators in both parties seeking increased oversight, and commissioners in both parties balking....
[S]ome of the changes Arriaga opposes were aimed at ensuring commissioners — who serve as unpaid volunteers — don’t misrepresent the religious freedom body while speaking as private individuals. One commissioner, Trump evangelical adviser Johnnie Moore, has met twice in the past year with Saudi Crown Prince Mohammed bin Salman, whose kingdom’s long-standing restraint of religious freedom has drawn criticism from the commission.
Christianity Today (Nov. 25) says that there is tension between USCIRF Commissioners and USCIRF staff.  USCIRF played an active role in freeing American pastor Andrew Brunson from imprisonment in Turkey. But senior staff had argued that because USCIRF was limited in its role to international religious freedom, it was not permitted to advocate for Brunson, an American.  CT went on to describe its understanding of the issues raised by the proposed reauthorization legislation:
Among the bill’s proposed reforms, the terms of all commissioners would expire at the same time, yielding 100 percent turnover every time new commissioners were appointed; commissioners would be prohibited from identifying themselves with USCIRF at public speaking engagements they performed as private citizens; commissioners would be required to make annual reports to Congress on any international travel funded by someone other than the commissioner, a relative, or the US government; and commissioners would be required to keep records of all official communications.
Another proposed change [is] ... expansion of USCIRF’s mission to include monitoring the “abuse of religion to justify human rights violations.” That language, Arriaga said, could empower future USCIRF chairmen to “criticize conservative Christian congregations that will not marry same-sex couples,” target Jews for practicing circumcision (a practice some critics have called child abuse), or monitor religious groups that don’t ordain women.
Former USCIRF commissioner Richard Land told CT the proposed changes would “neuter” the commission and limit and pool of religious liberty experts willing to serve.

Church Sues Under RLUIPA To Operate Homeless Shelter

The Shawnee Mission Unitarian Universalist Church has filed a RLUIPA lawsuit against the city of Lenexa, Kansas which has denied the church zoning approval to operate an overnight homeless shelter for the winter months.  According to KCUR News, the church, in cooperation with the nonprofit Project 1020, wants to use the former elementary school building in which it is located as a shelter for up to 40 people. The building now is zoned residential single family, though it borders commercial and office properties. Lexana has no areas zoned for homeless shelters.

Energy Secy. Perry Compares Trump To Biblical Kings

The Hill reports on the release last weekend by Fox and Friends of portions of an interview with retiring Energy Secretary Rick Perry.  In the interview, Perry says that Trump is"the Chosen One" who was "sent by God to do great things." Rick Perry told the Fox interviewer:
God's used imperfect people all through history. King David wasn't perfect. Saul wasn't perfect. Solomon wasn't perfect....  And I actually gave the president a little one-pager on those Old Testament kings about a month ago and I shared it with him. I said, 'Mr. President, I know there are people that say you said you were the chosen one and I said, 'You were.’
I said, 'If you're a believing Christian, you understand God's plan for the people who rule and judge over us on this planet in our government.’

Monday, November 25, 2019

6th Circuit Rules In Firefighter's Claim of Retaliation for Religious Speech

In Hudson v. City of Highland Park, Michigan, (6th Cir., Nov. 22, 2019), the U.S. 6th Circuit Court of Appeals in part reversed a district court's dismissal of claims by a firefighter that he was dismissed in retaliation for his religious views.  The court summarized the facts:
Hudson worked for the Highland Park Fire Department from 2002 to 2015. Over time, he developed a reputation for two things: being an effective firefighter and being outspoken about his Christian faith. According to Hudson, the other firefighters had reputations too—for watching pornography in communal spaces and engaging in extra-marital affairs at the fire station. All of this created tension. He criticized their behavior, and they responded with disrespectful comments about his religious practices and sexual orientation. The back and forth went on for five years.
Hudson was fired after he claimed extra hours on his time sheet and reported he had worked the same shift for two different employers. The 6th Circuit held, however, that Hudson had shown enough to avoid dismissal on the pleadings of his claim that the Chief had fired him because of his speech. The court however affirmed the dismissal of his Title VII religious discrimination claim, saying in part:
Employees are free to speak out about misconduct in the workplace without subjecting themselves to discharge for rocking the boat.... Employees are no less free to root legitimate criticisms about the workplace in their faith than in any other aspects of their worldview. For many people of faith, their religion is not an abstraction. It has consequences for how they behave and may require them to be witnesses and examples for their faith. That reality does not permit differential treatment of them because they criticize behavior on moral grounds stemming from religious convictions as opposed to moral grounds stemming from secular convictions. “Let firemen be firemen” is not a cognizable defense to Title VII claims based on gender discrimination, race discrimination, or faith-based discrimination.
Even so, Hudson’s disparate treatment claim fails.... He cannot show that the city’s justification for his discharge amounted to a pretextual basis for discriminating against him because of his faith. The fire department put forth a legitimate, non-discriminatory reason for treating Hudson differently. He falsified his time-sheets while other firefighters did not.
Judge Kethledge, dissenting in part, would have affirmed the dismissal of Hudson's claim that he was fired in retaliation for his speech. Judge Stranch dissented in part, contending that Hudson should have been allowed to move ahead on his hostile work environment claim which the majority held should be dismissed.

Church of England Issues New Document On Christian- Jewish Relations

The Church of England last week released a new study titled God’s Unfailing Word-- Theological and Practical Perspectives on Christian–Jewish Relations. (full text). The Church headlined this summary in its release on the new document:
Christian theology played a part in the stereotyping and persecution of Jewish people which ultimately led to the Holocaust, a new reflection on Christian-Jewish relations issued by the Church of England acknowledges.
[Thanks to Scott Mange for the lead.] 

Recent Articles of Interest

From SSRN:

Saturday, November 23, 2019

Challenge To Chaplaincy Program Dropped After Changes Are Made

A Stipulation for Dismissal signed by both parties was filed earlier this week in  Freedom From Religion Foundation, Inc. v. Kaul, (WD WI, 11/20/2019). The suit, which was initially filed in state court and was apparently removed to federal court, challenged the constitutionality of a Chaplaincy Program for employees and their families created by the Wisconsin Department of Justice. Six chaplains from across the state were appointed initially-- all white males from Christian faiths. The program excluded secular mental health professionals.  According to a press release from FFRF, after a new state attorney general was elected, the chaplaincy program was dropped in favor of an "Employee Support Team". The goal is to create teams with training in counseling, police chaplaincy, and/or empathetic listening.

Supreme Court Grants Review In RFRA Damages Case

The U.S Supreme Court yesterday granted certiorari in Tanzin v. Tanvir. (Docket No.19-71, cert. granted 11/22/2019). In the case, a 3-judge panel of the 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants. (See prior posting.) By a vote of 7-3, the 2nd Circuit denied en banc review. (See prior posting.) The SCOTUSblog case page has links to the fiilngs with the Supreme Court in the case.

Friday, November 22, 2019

Proselytizing Does Not Rise To Level of Intentional Infliction of Emotional Distress

In Trombetta v Kruse, (NY Civ. Ct., Nov. 19, 2019), a New York state trial court held that a proselytizing pamphlet and a subsequent e-mail did not amount to intentional infliction of emotional distress, nor was any injury proven. According to the court:
The pamphlet ... shows a cartoon depiction of a catholic who is sent into the "lake of fire" to "burn in hell" for practicing as a catholic, instead of following the version of Christianity promoted by the pamphlet which is evangelical Baptist. The tract urges the reader to reject Catholicism, or be barred from heaven....
... [D]efendant wrote plaintiff an email that included the following statements: ... My family does not believe and, if any of them were to die tomorrow, they would not go to heaven but to hell. I sent them tracts because I do not want them to go to hell. I want them to go to heaven. It is what I want for you too.
The court held in part:
The First Amendment to the United States Constitution prohibits the courts of this State from evaluating the religious beliefs of a church or individual....
While the court understands why the plaintiff found the tract and email disturbing, the court does not find that the conduct rose to the level of intentional infliction of emotional distress.
[Thanks to Volokh Conspiracy for the lead.]

Sex Abuse Victims Sue Claiming Unfair Settlements By Catholic Church

AP reports on a lawsuit filed by two African-American men who are cousins and who allege that as grade schoolers in a Mississippi Catholic school they were repeatedly abused by two Franciscan bothers:
Two impoverished Mississippi men who say they were sexually assaulted by Franciscan missionaries filed a federal lawsuit Thursday claiming that Catholic officials pressured them into signing settlements that paid them little money and required them to remain silent about the alleged abuse.
The lawsuit, filed in New York, claims the church officials drew up the agreements a year ago to prevent the men from telling their stories or going to court — a violation of a 2002 promise by American bishops to abandon the use of nondisclosure agreements, as part of an effort to end the cover-up of sexual abuse within the church.

Thursday, November 21, 2019

California Denied Preliminary Injunction In License Dispute Over Faith Based Teen Rescue Facility

In a Tentative Ruling (full text [scroll down]) in Leary v. Teen Rescue,(Shasta Cty. Calif. Super. Ct., Nov. 18, 2019), a California state trial court judge refused to enter a preliminary injunction that would shut down a residential facility for abused and neglected children.  The state claims that the facility should be regulated under state law as a "community care facility." The court agrees that the state has a reasonable probability of prevailing at trial on this claim, but says that there remains a significant religious free exercise question:
Defendants argue that they choose to address behavior through faith-based practices. Compliance with the Act and licensure would impact Defendants’ rights to free exercise of religion, in that 22 CCR § 80072 mandates that students be “free to attend religious services or activities of his/her choice and have visits from the spiritual advisor of his/her choice.” Further, “Attendance at religious services, in or outside of the facility, shall be on a completely voluntary basis” (“the spiritual exploration provisions”). Additionally, the Act provides students the right “[t]o be free from acts that seek to change his or her sexual orientation . . .” (“the SOCE prohibit”). The Act requires staff be trained in “[c]ultural competency and sensitivity in issues relating to the lesbian, gay, bisexual, and transgender communities” (“the LGBT cultural competency requirement”)....
The State advances the argument that requiring community care facilities to train staff in sensitivity to LGBTQ issues is neutral and does not infringe on or restrict religious practices. Defendants hold beliefs that are in direct opposition to this requirement. ....
There is no question that the protection of children – especially the particularly sensitive population of children Defendants seek out for their facility – is of great importance. However, the Court must also consider the foreseeable harm to the defendants in granting this injunction. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns (1976) 427 US 347, 373. The Court is concerned about the potential impact of the preliminary injunction on Plaintiff’s First Amendment freedoms, and the attendant presumption of irreparable injury to Defendants if this injunction were to be granted prior to a full determination of the facts of the case. 
Pacific Justice Institute issued a press release announcing the decision.

Court Sets Aside New Health Care Conscience Rules

In City and County of San Francisco v. Azar, (ND CA, Nov. 19, 2019), a California federal district court set aside rules adopted earlier this year by the Department of Health and Human Services to give additional protection to conscience rights of health care providers. The court said in part:
With the minor exceptions noted below, the new rule is purely an interpretive rule, not a legislative rule. An agency, of course, must interpret a statute under its care. But an interpretation, even if cast in the form of a regulation, is nothing more than that — an interpretation. The statute itself is what has the force of law, not the interpretation. No interpretation can add or subtract from the actual scope of the statute itself. If the agency misconstrues a statute, then the statute controls, not the interpretation.....
... Congress tried to strike a balance between two competing considerations. One consideration was recognition that, due to religious or ethical beliefs, some doctors, nurses, and hospitals, among others, wanted no part in the performing of abortions and sterilizations, among other medical procedures, and Congress wanted to protect them from discrimination for their refusal to perform them. The countervailing consideration was recognition of the need to preserve the effective delivery of health care to Americans, including to those seeking, for example, abortions and sterilizations. Every doctor or nurse, for example, who bowed out of a procedure for religious or ethical reasons became one more doctor or nurse whose shifts had to be covered by someone else, a burden on the healthcare system. Congress struck a balance between these two opposing considerations.
In reading the rule in question, the Court sees a persistent and pronounced redefinition of statutory terms that significantly expands the scope of protected conscientious objections. As laudable as that sounds, however, it would come at a cost — a burden on the effective delivery of health care to Americans in derogation of the actual balance struck by Congress.
California's Attorney General issued a press release commenting on the decision.  KPIX5 reports on the decision.

Argentinian Court Dismisses Transgender Man's Suit Against Catholic Church That Reused To Change His Name On Records

Church Militant reports on a lawsuit in Argentina by a transgender man who contends that Archbishop Mario Cargnello is required by Argentina's Gender Identity Law to change his name on Church baptismal and confirmation records.  When in 2018 the archbishop refused, activist Alba Rueda sued. A lower court dismissed the case saying it is a religious matter. On Nov. 14, an appeals court affirmed the dismissal. Rueda plans to take the case to the country's Supreme Court.

Suit Claiming Discriminatory Enforcement of Codes Against Orthodox Jews Moves Ahead

In Indig v. Village of Pomona, (SD NY, Nov. 18, 2019), a New York federal district court refused to dismiss equal protection and Fair Housing Act claims brought by plaintiffs who contend that the Village has enforced municipal codes in a discriminatory manner as part of a broader campaign against Orthodox Jews residing in the Village. Plaintiffs' free exercise and New York Civil rights Act claims, however, were dismissed.

Wedding Photographer Sues Over City's Public Accommodation Ordinance

Suit was filed in a Kentucky federal district court this week raising a pre-enforcement challenge to the application of Louisville, Kentucky's public accommodation ordinance to plaintiff's wedding photography business. The complaint (full text) in Chelsea Nelson Photography LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 11/19/2019) says that plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. The complaint alleges that enforcement of the ordinance against plaintiff would violate her free speech, free exercise and due process rights. ADF issued a press release announcing the filing of the lawsuit.

Advocacy Organization Releases "Religious Freedom Index" Survey

Becket yesterday released its first Religious Freedom Index which it describes in part as follows:
The Religious Freedom Index is designed to give a 30,000-foot view of changes in American attitudes on religious liberty by surveying a nationally representative sample of 1,000 American adults. Rather than focus on the most hot-button issues dominating the news-cycle, questions asked in the Index cover a wide spectrum of religious liberty protections under the First Amendment. The responses to these questions statistically group into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action. The composite Index score is the average score of these dimensions.
A Key Finding was:
In 2019, the majority of Americans accept and support religious freedom as a fundamental right as indicated by the Index score of 67. Although that fact may not come as a surprise, the Index clearly shows that Americans support a much broader array of religious freedom principles than current news cycles might suggest.

Wednesday, November 20, 2019

USCIRF Criticizes Action In India That Targets Bengali Muslims

Yesterday the U.S. Commission on International Religious Freedom issued a report titled The Religious Freedom Implications of the National Register of Citizens in India. The report says in part:
On August 31, 2019, the government of the northeastern Indian state of Assam released an updated National Register of Citizens (NRC), originally introduced in 1951 as part of India’s first census. The purpose of updating this list was to verify the citizenship of Assam residents and aid the government in identifying so-called “infiltrators” or “illegal immigrants.” India’s Union government supported this effort, and both national and state leaders from the ruling Bharatiya Janata Party (BJP) have pushed for the implementation of an NRC in other states..... Union Home Minister Amit Shah has expressed his desire to implement a nationwide NRC.
The final NRC list excluded 1.9 million Assam residents. Moreover, a number of domestic and international organizations have expressed concern that the NRC is a targeted mechanism to disenfranchise Assam’s Bengali Muslim community, implicitly establishing a religious requirement for citizenship and potentially rendering large numbers of Muslims stateless.

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.

Tuesday, November 19, 2019

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.

Monday, November 18, 2019

Recent Articles of Interest

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

Sunday, November 17, 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.

Saturday, November 16, 2019

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."

Friday, November 15, 2019

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.

Thursday, November 14, 2019

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.

Wednesday, November 13, 2019

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.

Tuesday, November 12, 2019

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.

Monday, November 11, 2019

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:
From SSRN (Non-U.S. Law):
Recent and Forthcoming Books:

Sunday, November 10, 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.]

Friday, November 08, 2019

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.]

Thursday, November 07, 2019

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.

Wednesday, November 06, 2019

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:

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.

Tuesday, November 05, 2019

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.

Monday, November 04, 2019

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.

Sunday, October 20, 2019

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:

Friday, October 18, 2019

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).

Thursday, October 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.