5th Circuit: Firefighter Was Offered Reasonable Accommodation of His Anti-Vaccination Beliefs

In Horvath v. City of Leander, Texas, (5th Cir., Jan. 9, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit brought by Brett Horvath, a Baptist minister who was employed as a driver/ pump operator by the Leander, Texas Fire Department.  As recounted by the court:

In 2016, the Fire Department began requiring TDAP vaccinations, to which Horvath objected on religious grounds. He was given a choice between two accommodations: transfer to a code enforcement job that did not require a vaccination, or wear a respirator mask during his shifts, keep a log of his temperature, and submit to additional medical testing  He did not accept either accommodation and was fired by Fire Chief Bill Gardner for insubordination. Horvath filed suit against Chief Gardner and the City, alleging discrimination and retaliation in violation of Title VII and the Texas Commission on Human Rights Act (TCHRA), and violations of 42 U.S.C. § 1983 premised on violations of his First Amendment Free Exercise rights.

The majority concluded that the city had offered Horvath reasonable accommodations of his religious beliefs, and that the respirator alternative did not burden his religious beliefs.

Judge Ho filed a lengthy opinion dissenting in part. He was very critical of both the Supreme Court's Smith precedent and the current jurisprudence on qualified immunity.

Wife of Sex Offender Sues Church For Reporting Confessed Abuse

The Salem (OR) Statesman Journal reports on a suit filed recently in an Oregon state trial court by the wife of convicted sex offender Timothy Johnson. She claims that leaders of the Turner, Oregon Latter Day Saints congregation breached their duty to her husband in reporting his confessed sex abuse to authorities. According to the report, Johnson followed church doctrine by confessing and repenting his sins in front of clergy and the church court:

The clergy portrayed that such a confession and repentance was dictated by church doctrine, and church doctrine required strict confidence of such confessions, according to the lawsuit.....

But what leaders failed to advise Johnson of is that if he confessed to the abuse, they would report his actions to local law enforcement, according to the lawsuit. 

The lawsuit filed in Oregon singled out a man who served as a counselor to Johnson's bishop, claiming the church failed to properly supervise him and train him of his obligations as a member of the clergy.

The suit seeks damages of $9.5 million on behalf of Johnson's wife and four children.

Retaliation Suit Over Nursing School Hiring Decision Moves Ahead In Part

In Isabell v. Trustees of Indiana University, (ND IN, Jan. 7, 2020), an Indiana federal district court allowed a nursing school adjunct professor to move ahead with her First Amendment retaliation claim against the chair of the school's hiring committee.  Plaintiff claims that she was not hired for a regular faculty position that was open because of her pro-life views. The court however dismissed plaintiff's claim against the University under Indiana's Conscience Act. because of 11th Amendment immunity. Indiana Lawyer reports on the decision. [Thanks to Steven Coleson for the lead.]

Jehovah's Witness Practices Are Within Confidentiality Exception To Mandatory Abuse Reporting

In Nunez v. Watchtower Bible and  Tract Society of New York, Inc., (MT Sup. Ct., Jan. 8, 2020), the Montana Supreme Court reversed a jury award of $35 million in compensatory and punitive damages against the Jehovah's Witnesses for violating Montana's statute mandating reporting of child abuse.  The court concluded that Jehovah's Witnesses came within an exception in the statute for communications required to be confidential under church law or established practice. The court said in part:

[W[e decline to conduct further inquiry into the validity of Jehovah’s Witnesses’ tenets and doctrines, including its canon and practice for adherence to a requirement of confidentiality in handling child abuse reports. Jehovah’s Witnesses representatives testified that its process for addressing these reports is strictly confidential, notwithstanding the involvement of numerous church clergy and congregants.... 

We hold accordingly that the undisputed material facts in the summary judgment record demonstrate as a matter of law that Jehovah’s Witnesses were not mandatory reporters under § 41-3-201, MCA, in this case because their church doctrine, canon, or practice required that clergy keep reports of child abuse confidential, thus entitling the Defendants to the exception of § 41-3-201(6)(c), MCA. The reporting statute as written accommodates Jehovah’s Witnesses’ definition and practice of confidentiality.

[Thanks to James Phillips for the lead.]

Teacher Can Pursue Title VII Claims In Dispute Over Transgender Student Policy

Kluge v. Brownsburg Community School Corp., (SD IN, Jan. 8, 2020), involved a suit by a former high school music teacher who was forced to resign for resisting the school's policy that required teachers to address transgender students by their preferred names and pronouns.Plaintiff claimed that the requirement violates his sincerely held religious beliefs. The court dismissed plaintiff's 1st and 14th Amendment claims, but allowed him to move forward on his claims of failure to accommodate in violation of Title VII, and his Title VII retaliation claim.

Challenge To Hospital's Reliance on Church Plan Exemption From ERISA Dismissed

In Sheedy v. Adventist Health System Sunbelt Healthcare Corp., 2020 U.S. Dist. LEXIS 2131 (MD FL, Jan. 7,2020), a Florida federal district court dismissed a suit challenging the Seventh Day Adventist Hospital Retirement Plan's reliance on the "church plan" exemption from ERISA, The suit claimed various ERISA violations and violation of the Establishment Clause.  The court dismissed plaintiff's claims on standing and other grounds.

State Senator's Threats Were Not Religious Speech

In Boquist v. Oregon State Senate President Peter Courtney, (D OR, Jan. 7, 2020), an Oregon federal district court rejected claims by Oregon state senator Brian Boquist that his constitutional rights, including his 1st Amendment rights, were violated when state Senate leaders imposed a requirement that he give 12-hours notice before entering the Capitol building. The notice requirement was imposed in reaction to statements made by Boquist that others saw as threatening.  All of this occurred during a political battle in which Republican senators left the Capitol in order to prevent a quorum from being present in the Senate, and the governor ordered state police to arrest them and bring them back. Rejecting Boquist's 1st Amendment claims, the court said in part:

While both sides can point fingers and complain that the other is overreacting to a political situation, Plaintiff’s chosen words on the Senate floor were those of a bully on the playground. As such, they are unprotected fighting words. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).... Remarkably, Plaintiff argues that his statement to Defendant Courtney— “if you send the [S]tate [P]olice to get me, Hell’s coming to visit you personally”—was a statement of religious expression.... But here, Plaintiff seems to overlook the fact that he sounds more like a character out of a Clint Eastwood movie than he does Mother Theresa.... Plaintiff made this statement in anticipation of his potential arrest, not during a religious discussion. Plaintiff also said that if the State Police were to arrest him, they should “send bachelors and come heavily armed.”... These statements, apart and together, resonate more as threats than the expression of theological ideas.

The Oregonian reports on the decision.

India Supreme Court: State Commission Can Choose Teachers For Madrassas

In Rafique v. Managing Committee, Contai Rahamania High Madrasah,(India Sup. Ct., Jan. 6, 2020), a 2-judge panel of India's Supreme Court in a 151-page opinion upheld a law in the state of West Bengal under which a government appointed Commission selects teachers for Islamic Madrassas. The Court held that the Act does not infringe on the right of minority institutions to choose their own teachers, saying in part:

the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of...

Times of India reports on the decision.

Title VII Suit Against Church Body Can Move Ahead

In Edley-Worford v. Virginia Conference of the United Methodist Church, (ED VA, Dec. 30, 2019), a Virginia federal district court refused to dismiss a Title VII claim by the former Director of Inclusivity and Lay Leadership Excellence in a church organization.  Plaintiff, an African American woman, claimed she was given an unfair workload in relation to those of her Caucasian co-workers and was fired when she complained to the Board of Laity and Personnel Committee. Defendants unsuccessfully raised defenses of the ecclesiastical abstention doctrine and the ministerial exception doctrine.

Court Cannot Decide Church Leadership Dispute

In Eglise Baptiste Bethanie De Ft. Lauderdale, Inc. v. Seminole Tribe of Florida, (SD FL, Jan 3, 2020), a Florida federal district court invoked the ecclesiastical abstention doctrine to dismiss a suit filed to settle a dispute over church leadership between the church's board of directors and the widow of its deceased pastor. According to the court:

While ... [weekly church] services were in progress, Defendant Auguste and her supporters, escorted by six armed officers from the Seminole Police Department, and without judicial authorization entered church property, "disabled the Church Property's surveillance cameras," "expelled from the Church Property all the worshipers who opposed Auguste," "changed the locks to the doors of the religious structure located on the Church Property," "seized the business records of Eglise Baptiste," and "locked the gates to the Church Property." ... Defendant Auguste and her supporters continue to occupy the church property and control Eglise Baptiste's personal property, including its bank accounts....Further, Defendant Auguste and her supporters have continued to exclude Plaintiffs from the church property.

However, the court concluded:

[A]ny adjudication of the claims asserted in Plaintiffs' Amended Complaint would violate the First Amendment because it "would require judicial intrusion into, rules, policies, and decisions which are unmistakably of ecclesiastical cognizance." ... [T]he foundational issue that must be resolved before addressing the merits of the claims is whether Defendant Auguste had the authority to exclude Plaintiffs from church property as Pastor Auguste's rightful successor. Questions of church government are fundamentally ecclesiastical in nature....

Ultimately, Defendant Auguste's decision to exclude Plaintiffs from church property and the ensuing events are so inextricably intertwined with matters of church governance, administration, and membership — regardless of the legal theories presented — that the adjudication of such issues would "excessively entangle[e] the judiciary in [ecclesiastical] questions."...

Recent Articles of Interest

From SSRN:

• Jaclyn L, Neo, Dimensions of Religious Harmony as Constitutional Practice: Beyond State Control, (German Law Journal (2019), 20, pp. 966–985).
• Michael Hanby, The Brave New World after Obergefell, (December 9, 2019).
• Nathan S. Chapman, Liberty of Conscience, Free Exercise of Religion, and the U.S. Constitution, (Christianity and the Laws of Conscience: An Introduction, eds. Helen Alvare & Jeff Hammond, Oxford: OUP, Forthcoming).
• Nathan S. Chapman, Christianity and Crimes Against the State, (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, & John Witte, Jr. (London: Routledge), Forthcoming).
• Richard Moon, Ktunaxa and the Shape of Religious Freedom, (November 12, 2019).
• Mahmoud A. El-Gamal,  Al-Sanhuri on Riba (Translation of Excerpt from Abdul-Razzaq Al-Sanhuri's Sources of Rights in Islamic Jurisprudence), (June 5, 2019).

From elsewhere:

• James C. Phillips, Is U.S. Legal Scholarship “Losing [Its] Religion” Or Just Playing Favorites?: An Empirical Investigation, 1998–2012, 2018 Pepperdine Law Review 139 (2019).

Court Refuses To Examine Parties' Need For Jewish Religious Divorce

In A.W. v. I.N., (Sup Ct Nassau Cty NY, Jan. 2, 2020), a New York state trial court held that the 1st Amendment precludes it from looking beyond a wife's sworn statement that she has, to the best of her knowledge, removed all barriers to the Husband's remarriage. NY Domestic Relations Law §253 requires such a statement from a plaintiff in a divorce action, and also provides that the court may not look into any religious or ecclesiastical issue.  In this case, the husband sought a stay in entering a final judgment of divorce because the wife refused to appear before an Orthodox Jewish religious court and accept a get (divorce document) from the husband.  According to an affidavit from a rabbi submitted by the husband, the husband is prevented from remarrying without the wife's acceptance of a get.  The wife contends, on the other hand;

the parties were not married religiously nor was there any religious ceremony. Therefore ... since there was no marriage according to Jewish Law, there is no religious divorce to be had. The Wife states that she refused the Husband's offers for a religious wedding ceremony because she wanted to avoid any religious divorce rituals. The Wife argues that in any event, the Husband is not a practicing Orthodox Jew.

The court said in part:

It would be a violation of the First Amendment of the United States Constitution for the Court to order the Wife to participate in a religious ritual when she did not agree to do so.

Amicus Briefs In Supreme Court's Abortion Cases Now Available

Dozens of amicus briefs have now been filed in this Term's Supreme Court cases on abortion rights. Links to all of the briefs are available at SCOTUSblog's case page on June Medical Services LLC v. Gee.

AP: Catholic Church's Release of Sex Offenders' Names Is Incomplete

In a long investigative report, AP yesterday said that Church reporting of alleged sex abusers is incomplete:

An AP analysis found more than 900 clergy members accused of child sexual abuse who were missing from lists released by the dioceses and religious orders where they served....

More than a hundred of the former clergy members not listed by dioceses or religious orders had been charged with sexual crimes, including rape, solicitation and receiving or viewing child pornography.

On top of that, the AP found another nearly 400 priests and clergy members who were accused of abuse while serving in dioceses that have not yet released any names....

Some dioceses have excluded entire classes of clergy members from their lists — priests in religious orders, deceased priests who had only one allegation against them, priests ordained in foreign countries and, sometimes, deacons or seminarians ousted before they were ordained....

Dioceses varied widely in what they considered a credible accusation.....

The largest exceptions were made for the nearly 400 priests in religious orders who, while they serve in diocesan schools and parishes, don't report to the bishops.

Suit Challenges Attempt To Force Sex Offenders Out of Church's Program

The Chicago Tribune reports on a Dec. 30 lawsuit arguing that  the city of Aurora and Kane County (Illinois) are violating the rights of 18 registered sex offenders staying at Wayside Cross Ministries:

The city of Aurora has contended for months that new mapping software showed the men, registered child sex offenders participating in a rehabilitation program at Wayside Cross Ministries, live too close to McCarty Park on Aurora’s near East Side. The city deems it a playground, which would mean the men are in violation of a state law requiring them to live more than 500 feet from schools, playgrounds, daycare centers and other child-focused locations....

The men argue in the lawsuit that Aurora and the Kane County state’s attorney are “misinterpreting and misapplying the residency law." The suit argues the way they are applying the law “to force plaintiffs out of Wayside Cross substantially burdens plaintiffs’ exercise of religion and is not the least restrictive means of furthering a compelling government interest," and amounts to a violation of the Illinois Religious Freedom Restoration Act,,,,

The most recent lawsuit, filed in Kane County circuit court, argues that instead of measuring the required 500-foot-distance from the edge of the park, it should be measured from the edge of an area deemed a playground, such as the park’s fountain or two rocking horses installed in the summer. Both of those features are more than 500 feet from Wayside’s property line, according to the lawsuit.

O Centro Sues Over Failure To Process Visa Applications

AP reports on a lawsuit filed in a New Mexico federal district court by O Centro Espirita Beneficente União do Vegetal alleging religious discrimination by the U.S. Citizenship and Immigration Services which has failed to process the visa applications for one of its congregational leaders and his family:

The lawsuit comes after José Carlos Garcia, a Brazilian man who has led the church’s Florida congregation since 2013, applied for visas that would allow him and his family to continue living in the United States while their immigration cases are pending

But the federal agencies responsible for processing their applications have left the family in legal limbo. Some applications have been pending for two years, according to the suit.

This has prevented Garcia from traveling to religious meetings outside the United States, infringing on his religious freedom, the lawsuit said.

In  O Centro Espirita Beneficente União do Vegetal in the U.S. v. Wolf, (D NM, Dec. 31, 2019), a New Mexico federal district judge refused to issue a preliminary injunction, but ordered the government to file a response by Jan. 10. (See prior related posting,)

Sex Abuse Suit Transferred to State Supreme Court

In Doe v. Marianist Province of the United States, (MO App., Dec. 31, 2019), a Missouri state appellate court said it would affirm the dismissal of portions of a lawsuit brought against the Marianist Province and a Catholic preparatory high school by a former student. However, according to the court, "due to the general interest and importance of the issues on appeal, we transfer the case to the Supreme Court of Missouri."  In the suit, plaintiff alleged abuse by a Marianist Brother who served as a guidance counselor at the school.  Judge Hoff, writing for herself and Judge Sullivan, said in part:

[B]ecause Appellant’s negligent supervision and negligent failure to supervise children claims would require interpretation of religion doctrine, policy, and administration amounting to an excessive entanglement between church and state, the trial court did not err in granting summary judgment in favor of Respondents....

... [T]he record contains no competent evidence that Respondents had knowledge of Bro. Woulfe’s history of abuse in 1971 when Appellant suffered his abuse. As a result, Appellant failed to establish the existence of a genuine issue related to Respondents’ knowledge. The trial court did not err in granting summary judgment in favor of Respondents on Appellant’s claim of intentional failure to supervise clergy.

Judge Quigless dissenting in part said:

While I concur with the majority in affirming the grant of summary judgment in favor of the respondents regarding the appellant’s negligence claims, I believe the record is sufficient to defeat the respondents’ motion for summary judgment on the claim of intentional failure to supervise clergy because a genuine issue exists as to the material fact of the respondents’ knowledge.

Happy New Year 2020 !

Dear Religion Clause Readers:

Happy New Year 2020! I hope you continue to find Religion Clause an important resource for news on religious liberty and church-state developments. I continue to strive for objectivity in my posts and to provide links to an abundance of primary source material underlying each post. I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

As we usher in 2020, it has become conventional wisdom that many of the most highly charged issues that divide our country politically also often divide it along religious lines.  Whether the issue is abortion, transgender rights, immigration, same-sex marriage, climate change, or campus free speech, activists have increasingly defined the debate in religious terms. As I watch this, I recall the words of Chief Justice Burger nearly 50 years ago in Lemon v. Kurtzman:

Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.

2019 has also been a year in which religious intolerance has grown.  Increasing anti-Semitic incidents in the United States and around the world remind us that this age-old manifestation of hate has not disappeared. Anti-Muslim attitudes and actions continue largely unabated in numerous countries, while minority Christian communities elsewhere are under siege.  2020 promises to be an important year for confronting religious liberty and church-state concerns.  Religion Clause will continue to cover all the developments.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes for 2020!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Howard Friedman

Hate Crime Charges Filed In Hanukkah Stabbing Spree

The U.S. Attorney's Office for the Southern District of New York announced yesterday that it has filed federal hate crime charges in the Hanukkah mass stabbing attack at a Rabbi's home in Monsey, NY last week.  The criminal complaint (full text) charges Grafton Thomas with 5 counts of obstruction of the free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon. The affidavit supporting the complaint says that a handwritten journal containing anti-Semitic views was recovered from the suspect's residence. Washington Post reports on these developments.

Denial of Name Change Did Not Burden Inmate's Free Exercise

In In re the Application of: Hollis John Larson for a Change of Name, (MN App, Dec. 30,2019), a Minnesota state appellate court upheld a trial court's denial of a name change petition from an inmate who has been indeterminately civilly committed to the Minnesota Sex Offender Program as a sexually dangerous person. Petitioner sought to change his name to "Better Off Dead."  He claimed his religious belief involving Hinduism, Taoism, Buddhism, and Agnosticism motivates his petition. He contended that he believes to achieve reconciliation with the divine he must escape the cycle of birth, life, death, and rebirth by being and remaining dead. In rejecting petitioner's free exercise claim, the appeals court said said that the trial court had concluded that petitioner's asserted religious belief was not sincerely held and "state regulation cannot burden an insincere belief." Minneapolis Star Tribune reports on the decision. The court also rejected petitioner's free speech claim.

Suit Challenges Postal Service's Rules On Content of Customized Stamps

Suit was filed earlier this month in a Texas federal district court challenging the constitutionality of a portion of the U.S. Postal Service's regulation (39 CFR §501.21) that limits the depictions that may be placed on customized postage stamps produced by private providers authorized by USPS. The regulation limits, among other things, "Any depiction of political, religious, violent or sexual content".  The complaint, (full text) in Fletcher v. U.S. Postal Service, (ED TX, filed 12/19/2019), contends that plaintiff's free speech and free exercise rights (including her rights under RFRA) are violated because she will be unable to create personalized postage stamps that allow her to share her love of Christmas and other holidays through PhotoStamps.com's website.  According to the complaint:

16. The website also requires customers to agree that Stamps.com, in its sole discretion, may determine if designs meet the eligibility criteria and may also reject orders without explanations. If customers submit a design Stamps.com determines is in violation of their requirements, those customers may be charged a processing fee of $10 per image.

17. If customers publicly complain about the rejection of a stamp design, Stamps.com claims it will be harmed and may pursue legal action. The website states, “[if] you intentionally publicize such violation, you acknowledge that Stamps.com will suffer substantial damage to its reputation and goodwill and that you can be liable for causing such substantial damage.”

The complaint goes on to allege that:

... USPS chose to promulgate a regulation allowing third-party providers, such as PhotoStamps, to discriminate against speech. Regulation 39 C.F.R. § 501.7(c)(1) requires the provider—here, PhotoStamps—to ensure that what it prints is “[c]onsistent with the Postal Service’s intent to maintain neutrality on religious, social, political, legal, moral, or other public issues.”

First Liberty Institute issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Jeremy Rovinsky, Don’t Have a Cow, Flanders: Guidance for the European Court of Justice as it Considers the Flemish Parliament’s Ban on Ritual Slaughter, (University of Detroit Mercy Law Review, Vol. 90, No. 180, Forthcoming).
• Richard Adams, Conscience and Coercion: Justice and the Defence Act, (Adelaide Law Review, 40:2, pp. 427 - 446, 2019).
• David John Harvey, Dangerous Speech - Some Legislative Proposals, (April 20, 2019).
• Aminu Yakubu, Haruna Yawale, Abdulbar Yakubui Isa & Muhammad Salihu Abubakar, Legal and Illegal Earning in Islam: A Literature Review (April 25, 2019).

State Department Designates Religious Freedom Violators

In a Dec. 20 press release, the U.S. State Department announced it designations for this year of countries which are the worst violators of religious freedom:

On December 18, 2019, the Department of State re-designated Burma, China, Eritrea, Iran, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan as Countries of Particular Concern under the International Religious Freedom Act of 1998 for having engaged in or tolerated “systematic, ongoing, [and] egregious violations of religious freedom.”  The Department renewed the placement of Comoros, Russia, and Uzbekistan on a Special Watch List (SWL) for governments that have engaged in or tolerated “severe violations of religious freedom,” and added Cuba, Nicaragua, Nigeria, and Sudan to this list.  Sudan was moved to the SWL due to significant steps taken by the civilian-led transitional government to address the previous regime’s “systematic, ongoing, and egregious violations of religious freedom.”  Finally, we designated al-Nusra Front, al-Qa’ida in the Arabian Peninsula, al-Qa’ida, al-Shabab, Boko Haram, the Houthis, ISIS, ISIS-Khorasan, and the Taliban as Entities of Particular Concern.

The U.S. Commission on International Religious Freedom issued a press release welcoming the action and reiterating its recommendations.

Montenegro Passes Controversial Religion Law

Reuters reports that early today the Parliament of Montenegro passed a controversial law on religious communities:

Under the law, religious communities in the tiny Adriatic state would need to prove property ownership from before 1918, when predominantly Orthodox Christian Montenegro joined the Kingdom of Serbs, Croats and Slovenes, the predecessor of the now-defunct Yugoslavia.

The pro-Serb Democratic Front (DF) and other critics of the legislation say it is an attempt to promote the small Montenegrin Orthodox Church, which is not recognised by other major churches, at the expense of the Serbian Orthodox Church, the dominant church in the country of 620,000 people.

Suit Over Unification Church Leadership Is Dismissed

In Hyung Jin "Sean" Moon v. Hak Ja Han Moon, (SD NY, Dec. 19, 2019), a New York federal district court applied the ecclesiastical abstention doctrine to dismiss a suit over who is the rightful leader of the Unification Church. The leadership struggle was between the wife and the son of Unification Church founder Rev. Sun Myung Moon. Summarizing its holding, the court said:

[N]otwithstanding plaintiff's efforts to cast this proceeding as a "classic corporate dispute" resolvable by reference to neutral principles of law,... this matter is, at bottom, the latest chapter in a protracted controversy over who should replace the late Rev. Moon as leader of the Unification Church. Because this Court may not, consistent with the First Amendment, intervene in that dispute, plaintiff's complaint must be dismissed in its entirety for lack of subject matter jurisdiction.

Suit Filed Against Synagogue Picketers

A lawsuit was filed last week in a Michigan federal district court against protesters who, every Saturday for the last 16 years, have picketed an Ann Arbor synagogue with anti-Israel and anti-Jewish signs. The 85-page complaint (full text) in Gerber v. Herskovitz, (ED MI, filed 12/19/2019) contends in part:

The conduct of the protesters is infringing on the 1st Amendment right of the congregants to exercise their freedom of religion without being harassed and insulted by the protesters. The City, by its failure to enforce its own Code provisions to curtail the protesters' conduct, is aiding and abetting the protesters harassment of the congregants, thereby making the protesters state actors under 42 U.S.C. §1983 and the protesters and the City co-conspirators under §§ 42 U.S.C. 1983 and 1985(3)....

The 1st Amendment right of free speech does not entitle a speaker to use that right repeatedly as a bludgeon, for weeks and years at a time, in the same location, rather than as a means of legitimate communication in an effort to convey information and persuade others to the speaker's point of view.

M Live reports on the lawsuit. [Thanks to Tom Rutledge for the lead.]

Top 10 Religious Liberty and Church State Developments of 2019

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. This year has been a particularly active one, and 2020 promises to be even more eventful.  The selection of top stories obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks as another year comes to an end:

1. The ongoing battle over abortion rights, including the Supreme Court's action on Indiana's abortion law in Box v. Planned Parenthood, and Justice Thomas opinion focusing on abortion as eugenics; Supreme Court's granting of certiorari on Louisiana's abortion law; increasingly restrictive enactments by various states; and challenges to new HHS health care conscience rules.
   
2. Supreme Court's decision in American Legion v. American Humanist Society clarifying when religious-themed monuments on public property may remain.
   
3. Controversies over transgender rights, including Supreme Court's grant of review in cases on Title VII protections for LGBT employees, and DOD's amended policy on transgender service in the military.
   
4. Growth of anti-Semitism and governmental efforts to combat it, including controversial interpretation of Title VI.
   
5. Litigation and rule-making over whether adoption and foster care agencies receiving government funding can refuse to place children with same-sex couples.
   
6. Elimination of religious exemptions to vaccination requirements in wake of measles outbreaks, especially in New York.
   
7.  Supreme Court weighs in on inmates' access to chaplains during execution.
   
8. Extensions of statutes of limitations lead to flood of clergy abuse cases.
   
9. 7th Circuit upholds tax code's parsonage allowance.
   
10. India's courts and Parliament make major rulings that infringe on religious autonomy: Hindu Marriage Act covers transgender marriage; Parliament outlaws triple talaq; court bans animal sacrifice; power of ecclesiastical courts reduced; disputed holy site awarded to Hindus.

For other opinions on 2019's top stories, see the lists from Don Byrd at BJC, and from from the Religion News Association.

President Sends Christmas Greetings

The White House today posted President Trump's Message on Christmas. (full text).  He said in part:

While the challenges that face our country are great, the bonds that unite us as Americans are much stronger.  Together, we must strive to foster a culture of deeper understanding and respect—traits that exemplify the teachings of Christ.

The White House also posted the transcript of the President's  Video Teleconference With Members of the Military, extending Christmas and New Years greetings to them.

Cuomo Vetoes Expansion of Federal Judges Who Can Officiate At Weddings

On Dec. 20, that New York Gov. Andrew Cuomo vetoed S6330 which would have expanded the federal judges who can officiate at marriage ceremonies in New York.  Currently only federal judges sitting in New York districts or on the 2nd Circuit can officiate. The vetoed bill would have expanded this to all federal judges. According to yesterday's New York Times, Cuomo said in his veto message:

I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration. President Trump does not embody who we are as New Yorkers.

President Trump Issues Hanukkah Greetings

On Sunday, President Trump issued a Hanukkah message (full text) sending greetings from himself and Melania.  He said in part:

Today, the relationship between the United States and Israel, one of our most cherished allies and friends, is stronger than ever.  We will continue to stand with the Jewish people in defending the God-given right to worship freely and openly.

New HHS Obamacare Rule Requires Separate Bill For Abortion Services

The Department of Health and Human Services last week issued a group of rules (full text) on oversight of state Obamacare exchanges.  One portion of the new rules changes the billing requirements for health insurance policies that cover abortion services. The Affordable Care Act requires a separate payment by the policyholder for the amount of the premium that covers abortions in order to avoid public funds being used to pay for abortions.  The new rules sharpen that requirement.  As explained in the HHS Fact Sheet on the new rules, health plan issuers will now be required to:

(1) send an entirely separate monthly bill to the policy holder for only the portion of premium attributable to coverage of certain abortion services, and (2) instruct the policy holder to pay the portion of their premium attributable to coverage of certain abortion services in a separate transaction....  QHP issuers sending paper bills will be permitted to send the separate paper bill in the same mailing as the separate bill for the rest of the enrollee’s premium. QHP issuers sending bills electronically will be required to send the separate bill in a separate email or electronic communication.... However, if the policy holder fails to pay the separate bill in a separate transaction as instructed by the issuer, the issuer may not terminate the policy holder’s coverage on this basis, provided the amount due is otherwise paid.

Appellate Court Narrows Ruling Allowing Clearing Of Homeless Encampments

In State of Ohio ex rel. New Prospect Baptist Church v, Rulehlman (OH App., Dec. 20, 2019), an Ohio state appellate court, narrowed an injunction previously issued by a trial court.  The city of Cincinnati had allowed homeless encampments to be created.  In a suit against the city, it was alleged that these presented a hazard to health and safety and constituted a nuisance. Agreeing with that contention, the trial court held that city and county law enforcement authorities could to clear homeless encampments throughout the city and county.  New Prospect Baptist Church, which was not a party to the trial court action, sued to prevent enforcement of the injunction against its use of its 4-acre site in the city as a refuge for the homeless. The appellate court issued a writ of prohibition requiring the trial court to narrow its injunction. The appeals court said in part:

[The trial judge's] permanent injunction is unauthorized by law to the extent that respondent seeks to enjoin actions by private nonparties, not found to be aiding or abetting a named defendant, within the city limits of Cincinnati, and by any entity outside the city limits of Cincinnati. Respondent’s orders imposing additional health and safety conditions on entities like New Prospect are similarly unauthorized by law.

City Beat, reports on the decision.

Ukrainian Region Bans Baptist Books, Including Gospel of John

In the Luhansk region of Ukraine, pro-Russian rebels have proclaimed the Luhansk People's Republic.  It is not recognized internationally, Forum18 now reports that a government decision on November 26 banned 12 Baptist books as "extremist." The Luhansk Religion Law requires state approval for any church to operate, and prohibits churches not affiliated with the Moscow Orthodox Patriarchate from applying for permission. The newly banned books include the Gospels of John, the Baptist "Songs of Revival", the Baptist magazine "Herald of Truth" and several children's books.  The text of the government decision banning the books has not been published and the government says that it is a "secret document for official use and for limited distribution." The banned Gospels of John are included in the Russian Synodal translation of the Bible.

Catholic Agency Charges County With Retaliation

Suit was filed in a Michigan federal district court last week by St. Vincent Catholic Charities of Ingham County, Michigan challenging the county's refusal to renew a grant for services to refugees,  The complaint (full text) in St. Vincent Catholic Charities v. Ingham County Board of Commissioners, (WD MI, filed 12/16/2019) contends that the county's action was in retaliation for a lawsuit by St Vincent's challenging a state requirement that Catholic adoption and foster care agencies place children with same-sex couples, (See prior posting.)  The current lawsuit claims that the county's action amounts to unconstitutional retaliation, and violates its free speech and free exercise rights. Detroit News reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Jason Scott Palmer, Emotional Intelligence and Homophobia, (Wake Forest Law Review, Vol. 54, Forthcoming).
• Nathan S. Chapman, Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause . (December 2, 2019).
• Thomas Burrell, The Bill of Rights before the Civil War: State Sovereignty, Strict Construction, and the Presumption of Constitutionality, (Forthcoming, 14 Charleston Law Review).
• Katherine Shaw, Reva B. Siegel & Melissa Murray, Introduction: Reproductive Rights and Justice Stories, (Forthcoming, Reproductive Rights and Justice Stories).
• Seth Barrett Tillman, A Religious Test in America?: New Sources on the 1809 Motion to Vacate Jacob Henry's North Carolina State Legislative Seat, (November 25, 2019).
• Fred Smith, Jr., The Constitution After Death, (November 28, 2019).

From SSRN (Religious Law):

• Levi Cooper, Halakhah: Studying Hasidism - Sources, Methods, Perspectives, (Studying Hasidism: Sources, Methods, Perspectives, ed. Marcin Wodziński (New Brunswick: Rutgers University Press, 2019), 36-59).
• Muhammad Farooq, Walayah (Guardianship) and Kafa’a (Equality) in Muslim Marriage Verses the Woman’s Consent, (December 3, 2019).
• Md Tasnimul Hassan, Islamic Jurisprudence: Apropos to the Indian Legal System, (November 15, 2019).

From SSRN (Non-US Law):

• Mario Ricca, Children in Tatters Across the Earth: Intercountry Adoptions, Intercultural Discriminations, (Calumet - Intercultural Law and Humanities Review, 2019, 9: 62-104).
• Oonagh B. Breen & Patricia Quinn, Philanthropic Giving in Ireland: A Scoping Project, (UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 13/2019).

Free Exercise Challenge To Vermont's Dual Enrollment Program Moves Ahead

In A.M. v. French, (D VT, Dec. 29, 2019), a Vermont federal district court refused to dismiss plaintiffs' claim that Vermont's administration of its Dual Enrollment Program for high school students violates their right to free exercise of religion.  Vermont pays tuition for high school students to take a limited number of courses at colleges.  While public school, home schooled and private non-sectarian school students may participate in the program, students at religious high schools are not eligible. The court held in part:

Because Plaintiffs have plausibly alleged that the DEP Provision is not neutral and generally applicable, the burden shifts to Defendant to prove that the State's enforcement of the DEP Provision withstands strict scrutiny....

The State's intent appears to be ... the avoidance of using public fundes to subsidize religious worship. A state's "policy preference for skating as far as possible from religious establishment concerns" is not a state interest of the highest order because "achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution ... is limited by the Free Exercise Clause." Trinity Lutheran, 137 S. Ct. at 2024....

The court also rejected as adequate other justifications offered by the state for the exclusion of religious school students. (See prior related posting.)

2nd Circuit: Rabbinical College Prevails In Part of Its Zoning Law Challenge

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (2d Cir., Dec. 29, 2019), the U.S. 2nd Circuit Court of Appeals in a 104-page opinion affirmed in part the judgment in favor of those supporting construction of a rabbinical school ("TRC") in a New York village.  The court found that plaintiffs had standing to bring their equal protection claim. It summarized its holding:

TRC and future students and faculty (collectively, “Tartikov”) filed this action against the Village and its board of trustees seeking to declare unconstitutional the two amendments enacted after its plans became known. In addition, it challenged two other amendments that had been passed earlier. After a bench trial, the district court found that all four zoning law amendments were tainted by religious animus, enjoined their enforcement, and entered a broad injunction sweeping away or modifying for these plaintiffs New York State and local laws that otherwise would apply. The Village challenges the decision below. Its central contention is that the findings of religious animus were clearly erroneous. Tartikov cross appeals from a number of pretrialrulings that limited the scope of its claims.

After careful consideration of the extensive record, we decline to overturn the district court’s findings that religious animus motivated the two zoning amendments passed after the plaintiffs’ wishes became known and thus affirm the injunction barring their enforcement. But we respectfully conclude that there was insufficient evidence to support such a finding as to either of the two earlier zoning amendments and therefore reverse that portion of the judgment. We conclude also that the injunctive relief went further than was appropriate and modify those aspects of the judgment as well. We affirm as to the cross-appeal.

USCIRF Reauthorized By Congress

Congress yesterday gave final passage to HR1865, Further Consolidated Appropriations Act, 2020 (full text). Title VIII of the Act reauthorizes the United States Commission on International Religious Freedom for three more years.  The reauthorization bill makes a number of other changes to USCIRF's operations, including:

(1) requiring election of a Chair and Vice Chair at the first meeting of the Commission after May 30 each year, and requiring that they be of different political parties, with chair and vice chair's party rotated each year.

(2) USCIRF is to track the implementation of its recommendations and the effectiveness of such implementation.

(3) Commissioners invited to speak on behalf of USCIRF must notify other Commissioners of the invitation and must reflect Commission views in their remarks. Commissioners who are speaking in their private capacities must make this clear.

(4) If the government makes a payment to settle a harassment claim against a Commission member, the member shall be removed from the Commission.

Separately, on Dec. 18, the Senate approved the appointment of Rabbi Sharon A. Kleinbaum as a USCIRF commissioner.

Settlement Reached In Suit Over Homeless Shelter

A settlement has been reached in the RLUIPA lawsuit filed last month (see prior posting) by the Shawnee Mission Unitarian Universalist Church against the city of Lenexa, Kansas over denial of zoning approval for an overnight winter homeless shelter. According to a press release from the church's law firm, the settlement agreement allows the shelter to operate from Dec. 13 to April 1, with various conditions.  In addition the city has agreed to work with the Church to produce an ordinance within the next 3 years to allow homeless ministries in city.

New Law & Religion Bibliography

The AALS Section on Law and Religion has issued its 2019 Newsletter which includes a 17-page Law and Religion bibliography. Access the full Newsletter here.

British Court Says Sikh Challenge To Census Proposal Is Premature

In Gill, R (on the application of) v UK Statistics Authority, (EWHC, Dec. 12, 2019), a High Court judge in England dismissed as premature a challenge to a proposal by the UK Statistics Authority not to include a Sikh ethnic group tick box response in the 2021 census. Under the proposal there would be a specific "Sikh" response under "Religion", but those wishing to list themselves as Sikh under ethnicity would need to check the "Other, specify" box. The court agreed with the government's claim, which the court described as follows:

[T]his claim is a pre-emptive challenge to the exercise of the Queen's powers ... before the Minister has made a final decision on the form of the census questionnaire, or laid the draft delegated legislation before Parliament, and before Parliament and the Queen in Council have had an opportunity to consider it. The Defendant submits that the claim is premature, and in breach of Parliamentary privilege, as a declaration in the terms sought would not respect the separation of powers between the legislature and the judiciary.

Law & Religion UK has more on the decision.

Another Ruling On Business Refusal To Serve Same-Sex Weddings

In Country Mills Farms, LLC v. City of East Lansing, (WD MI, Dec. 18, 2019), a Michigan federal district court refused to grant summary judgment to either side on most of plaintiff's claims growing out of plaintiff's refusal rent his farm venue for same-sex wedding ceremonies. That refusal led to plaintiff being excluded from participating in the city's farmer's market, The court summarized:

Plaintiffs used Facebook to announce both their religious beliefs and their business practices. The City reacted to the Facebook post, culminating in the denial of Country Mill’s application to participate in the East Lansing Farm’s Market. The parties disagree whether City’s actions were because of Plaintiffs’ statement about their religious beliefs or whether the City’s actions were because of Plaintiffs’ statement about their business practices.  Because the record contains evidence from which the finder of fact could conclude that the City reacted to Plaintiffs’ statements about their religious beliefs, the cross motions for summary judgment must be denied for many of the claims. The trier of fact must decide what the City’s motivation was.

The court, however, did hold that a portion of the city's non-discrimination ordinance is overbroad.  The court also dealt at length with plaintiff's free exercise claims. In part, the court rejected  plaintiff's argument that the Supreme Court's Trinity Lutheran decision precludes the city from denying him a public benefit because of his religious belief, saying: "the Trinity Lutheran opinion does not clearly extend beyond religious institutions "

Supreme Court Grants Cert. In 2 Ministerial Exception Cases

The U.S, Supreme Court today granted review in two cases involving the scope of the "ministerial exception" doctrine. The Court consolidated the two cases for review.  One of the cases is St. James School v. Biel, (Docket No. 19-348, certiorari granted 12/18/2019). In the case, the U.S. 9th Circuit Court of Appeals  in a 2-1 decision held that a 5th grade teacher at a Catholic elementary school is not a "minister" for purposes of the ministerial exception doctrine. At issue was a suit under the Americans for Disability Act brought by a teacher whose contract was not renewed.  (See prior posting.) The 9th Circuit over 9 dissents denied en banc review. (See prior posting.) The second case in which the Supreme Court granted review is Our Lady of Guadalupe School v. Morrissey-Berru, (Docket No. 19-267, certiorari granted 12/18/2019). In the case, the U.S. 9th Circuit Court of Appeals held that a teacher in a Catholic school is not a "minister" for purposes of the ministerial exception doctrine. (Full text of 9th Circuit decision).

India's Supreme Couirt Will Review Controversial Citizenship Law Amendments

On Dec. 12, India's Citizenship (Amendment) Act, 2019 (full text) that was passed by Parliament received assent of the President.  The controversial new law  allows migrants who came into India from Afghanistan, Bangladesh, or Pakistan on or before December 31, 2014, and who belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities, to become citizens. It does not include Muslims from those nations. (Background),  Muslims fear that the new law is part of Home Minister Amit Shah's plan to create a nationwide citizens' register to weed out illegal immigrants.  Now, according to Bloomberg, India's Supreme Court, in response to more than 50 petitions, will review the constitutionality of the new law. An initial hearing is scheduled for January 22.

Settlement Approved In Muslim Woman's Suit Over Booking Procedures

Minneapolis Star-Tribune reports that a Minnesota federal district court last month approved a $120,000  settlement of a suit brought by a Muslim woman, Aida Shyef Al-Kadi, who was  required by Ramsay County jail officials to remove her hijab after she was arrested on a traffic offense.The report goes on:

Along with the $120,000 payout, the settlement includes having the jail put specific rules in place on how to accommodate inmates with religious headwear during the booking photo process.

The county, while not required by the settlement to admit wrongdoing, further agreed to destroy all hard copies and delete any electronic versions of Al-Kadi’s booking photo. Also, the Sheriff’s Office must train its corrections officers on policies concerning inmates and the religious accommodations they require. County Board Chairman Jim McDonough called the terms “fair and in the best interests of our citizens.”

Russian Court Liberalizes Allowed Religious Use of Residences

Forum 18 reports this week on a November 2019 decision by Russia's Constitutional Court liberalizing the permissible religious uses of buildings that are zoned for residential purposes. The report explains:

The case followed a fine imposed on Olga Glamozdinova, a Seventh-day Adventist in Rostov Region, for granting free use of a room in her house to her Church and allowing them to use it as its legal address, when the land is designated for personal part-time crop cultivation. This land use permits the construction of a dwelling, but not of a religious building.

Glamozdinova argued that the house is also occupied as a dwelling by an acquaintance who also tends the crops on the plot, and the congregation uses the room for only four hours per week. The fine was upheld on appeal at both district and regional courts, but the Constitutional Court has now ruled that Glamozdinova's fine is subject to review because the law had been incorrectly applied in her case....

The Court stated, however, that religious use of residential premises must take into account the rights and legitimate interests of residents and neighbours, and the requirements of health and safety and environmental protection legislation. The Court also stated that it would be "unacceptable" for a dwelling to lose the features of residential premises and acquire those of a religious or administrative building....

This November 2019 Constitutional Court ruling may lead to fewer fines being imposed on religious organisations and individuals, but this will depend on Federal Service for State Registration, Cadastre and Cartography (Rosreestr) and other officials....

Cert. Denied In Boise Ban On Sleeping Outdoors

Yesterday the U.S. Supreme Court denied review in Boise, ID v. Martin, (Docket No. 19-247, certiorari denied 12/16/2019). (Order List.) In the case the U.S. 9th Circuit Court of Appeals held that the ban on cruel and unusual punishment in the 8th Amendment bars a city from criminalizing sleeping outdoors on public property when homeless people have no option to sleep indoors, including where their access to a shelter is conditioned on their participating in religious programs. (See prior posting.) Los Angeles Times has an Opinion piece on the case.

WAPO: IRS Whistleblower Says Mormon Church Misled Regarding Charitable Accounts

The Washington Post reports today:

A former investment manager alleges in a whistleblower complaint to the Internal Revenue Service that the Church of Jesus Christ of Latter-day Saints has amassed about $100 billion in accounts intended for charitable purposes, according to a copy of the complaint obtained by The Washington Post.

The confidential document, received by the IRS on Nov. 21, accuses church leaders of misleading members — and possibly breaching federal tax rules — by stockpiling their surplus donations instead of using them for charitable works. It also accuses church leaders of using the tax-exempt donations to prop up a pair of businesses.

Judge Who Refused To Perform Same-Sex Ceremonies Sues Over Reprimand

As previously reported, in November the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because of her refusal to perform same-sex marriage ceremonies. Now a lawsuit has been filled challenging the Commission's action.  The complaint (full text) in Hensley v. Texas State Commission on Judicial Conduct, (TX Dist. Ct., filed 12/16/2019) contends that the Commission's action violates Judge Hensley's rights under the Texas Religious Freedom Restoration Act. The complaint also seeks a class-wide declaratory judgment. Fox 44 News reports on the lawsuit.

Cert. Denied In Suit Against Priest Over Baptism Ritual

The U.S. Supreme Court today denied review in Fermin v. Priest of St, Mary- Marfa, Texas, (Docket No. 19-471, certiorari denied 12/16/2019) (Order List). In the case, the U.S, 5th Circuit Court of Appeals (full text of opinion) affirmed the dismissal of a suit in which a Texas man claimed that an unnamed priest used a crucifix during his baptism in 1925 "in violation of God's law" (including the Second Commandment's prohibition of idolatry).

Recent Articles of Interest

From SSRN:

• Seth Barrett Tillman, A Religious Test in America?: New Sources on the 1809 Motion to Vacate Jacob Henry's North Carolina State Legislative Seat, (November 25, 2019).
• Daniel P. Tokaji Denying Systemic Equality: The Last Words of the Kennedy Court, (December 9, 2019), 13 Harvard Law & Policy Review 539 (2019).
• Maritza Black, Adjudicating the Religious Beliefs of an Asylum Seekers: When the ‘Well-Founded Fear’ Standard Leads Courts Astray, (November 24, 2019).
• Engy Abdelkader, Myanmar: The Rohingya Crises as an Analytic Lens to Understanding Violent Extremism, (Handbook on the Dynamics of Violent Extremism, Extremist Groups and State Fragility, Routledge, Forthcoming).
• Leonid Sykiainen, FIQH as a Source of Contemporary Law in Arab Countries, (Higher School of Economics Research Paper No. WP BRP 92/LAW/2019).
• Aina-Obe Shamsuddin Bolatito, Islamic Fiqh (Jurisprudence) and Public Life: A Conundrum, (December 11, 2019).
• Kyriaki Topidi, Words that Hurt (1): Normative and Institutional Considerations in the Regulation of Hate Speech in Europe, (ECMI Working Paper n.118 (2019)).
• Kyriaki Topidi, Words that Hurt (2): National and International Perspectives on Hate Speech Regulation, (ECMI Working Paper Series n. 119 (2019)).
• Rochelle Rolston, Addressing Hate Crime in New Zealand: A Separate Offence?, (Victoria University of Wellington Legal Research Paper, Student/Alumni Paper No. 45/2019).
• Jens Ihlow & Jens Carsten Jackwerth, Stock Market Performance of Jewish Firms During the Third Reich, (December 9, 2019).

Recent Publications:

• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, (Updated 2019 version, PLI Course Handbook).

Lighting Regulations Limiting Use of Catholic School's Baseball Field Do Not Violate RLUIPA

In Marianist Province of the United States v. City of Kirkwood, (8th Cir., Dec. 13, 2019), the U.S. 8th Circuit Court of Appeals rejected a claim by Vianney High School in Kirkwood, Missouri that the city's lighting and sound regulations which limit use of its baseball field at night violate its rights under RLUIPA and state law.  The court said in part:

Vianney asserts that various forms of religious exercise “motivate the school’s use” of its baseball field at night. The school emphasizes that athletics is part of the “formation of young men” in the Catholic Marianist tradition and that nighttime sports games allow it to reach out to the community and engage in religious fellowship.... Assuming Vianney’s uses of its baseball field at night ... constitute religious exercise, we examine its claim that the regulations substantially burden this exercise.

Vianney has not demonstrated that its religious exercise is substantially burdened, rather than merely inconvenienced, by its inability to use its baseball field at night.

The court also rejected the school's RLUIPA "equal terms" claim, and held that its state law claims should be dismissed as well.

5th Circuit Strikes Down Mississippi's Anti-Abortion Law

The U.S. 5th Circuit Court of Appeals yesterday struck down a Mississippi statute that prohibits abortions, with limited exceptions, after 15 weeks' gestational age.  In Jackson Women's Health Organization v. Dobbs, (5th Cir., Dec. 13, 2019), Judge Higginbotham writing for himself and Judge Dennis said in part:

In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.

Judge Ho filed a separate opinion concurring in the judgment, but criticizing the district court's opinion.  He said in part:

[W]hat distinguishes abortion from other matters of health care policy in America—and uniquely removes abortion policy from the democratic process established by our Founders—is Supreme Court precedent. The parties and amici therefore draw our attention not to what the Constitution says, but to what the Supreme Court has held.

A good faith reading of those precedents requires us to affirm..... I am nevertheless deeply troubled by how the district court handled this case. The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.

UPI reports on the decision.

Suit Filed Against Pharmacies That Refused To Fill Emergency Contraceptive Prescription

A suit was filed earlier this week in a Minnesota state trial court against two pharmacies and an individual pharmacist by a woman who was turned down at both pharmacies when she attempted to full a prescription  for ella-- a morning-after emergency contraceptive. The suit contends that defendants discriminated against plaintiff on the basis of sex, in violation of the Minnesota Human Rights Act. The Act defines "sex" as including pregnancy, childbirth, and related conditions. The complaint (full text) in Anderson v. Grand St. Paul CVS, LLC,(MN Dist. Ct., filed 12/9/2019) sets out the facts of plaintiff's discrimination claim:

[Anderson] had her doctor send [her prescription] to the McGregor Thrifty White pharmacy. She acted quickly because any delay in obtaining emergency contraception increases the risk of pregnancy. The pharmacist on duty told her that he would be unable to fill her prescription because of his “beliefs.” He also warned her against trying Shopko, another pharmacy in the surrounding area. The pharmacist did not provide Anderson with any information about how she could get her prescription filled.

Anderson next tried a CVS pharmacy in Aitkin, Minnesota, a town roughly 20 miles away. The CVS pharmacist also indicated that she could not fill the prescription. The pharmacist then claimed that she called a pharmacist at the Walgreens in Brainerd Minnesota, who told her that they could not fill the prescription either. Anderson later confirmed with that Walgreens pharmacist that they did speak with a pharmacist from CVS, but that they had told the CVS pharmacist that Walgreens could fill the prescription.

Though Anderson finally found a pharmacy that was willing to fill her prescription, it was over fifty miles from her home. Meanwhile, a massive snowstorm was headed to central Minnesota.  Given the increased risk of pregnancy from any delay in taking emergency contraception, Anderson drove over 100 miles round trip in the snowstorm in order to fill her prescription....

 NBC News reports on the lawsuit. [Thanks to Tom Rutledge for the lead.]

Church of Atheism Not A Charity Under Canadian Tax Law

In Church of Atheism of Central Canada v. Minister of National Revenue, (Canada Fed. Ct. App., Nov. 29, 2019), Canada's Federal Court of Appeal held that the Church of Atheism of Central Canada is not entitled to registration as a charity under Canada's Income Tax Act.

Because the Act does not define “charitable activities”, we must turn to the common law to answer this question. At common law, there are four recognized charitable purposes, the two relevant to this appeal being “the advancement of religion” and “certain other purposes beneficial to the community” ....

Turning therefore to section 2(a) of the Charter, the appellant is correct to point out that the courts have found that this section does protect the rights of atheists.... However, I find in this case that the Minister’s refusal to register the appellant as a charitable organization does not interfere in a manner that is more than trivial or insubstantial with the appellant’s members ability to practise their atheistic beliefs. The appellant can continue to carry out its purpose and its activities without charitable registration....

Law & Religion UK reports at greater length on the decision.

Appeals Court Refuses Temporary Injunction Against Quebec's Secularism Act

In Hak v. Attorney General of Quebec, (Quebec Ct. App., Dec. 12, 2019) (full text of opinion in French), the Quebec Court of Appeal, by a 2-1 vote, upheld a trial court's refusal to issue a temporary injunction against the enforcement of two provisions of the Secularism Act (Bill 21). The sections at issue bar teachers, as well as various other public employees and officials, from wearing religious symbols in carrying out their official duties, and prohibit various public employees from carrying out their functions with their face covered. The individual plaintiff in the case who is about to graduate as a teacher wants to wear her hijab while teaching French in an English elementary or high school.

Judge Belanger refused to grant the temporary injunction, saying in part:

What the Attorney General invokes in this case and with reason, that is the presumption that the legislation addresses the common good . At this stage of the proceedings, the Court must assume that the Act serves a valid public purpose. Unless it is clear that the law enacted is not intended to serve a public purpose, the courts must take it for granted.

It follows from this principle that the courts will not suspend legislation passed by a legislature without having made a full constitutional review. Accordingly, suspension orders are only issued in clear cases.

We must recognize that we are not in a clear case where we can say right now that the Act is unconstitutional, despite the presence of serious issues.

Judge Mainville would likewise refuse a temporary injunction, saying in part:

[W]hen, as here, questions arise about the relationship between the state and religions, on which deep differences may reasonably exist within a free and democratic society, there is a need for courts to act with caution and circumspection because of the diversity of approaches to these issues and the difficulty of forming a uniform understanding of the meaning of religion in society. The role and impact of religion in society, as well as the forms of public expression of religious belief, are not the same in different times and contexts. They vary according to changing sociological and ideological factors, national traditions and demands imposed by the protection of the rights and freedoms of others and the maintenance of public order in a given society. The conception of the religious symbolism and its place in the public space are not perceived in the same way by each society.The State Secularism Act is a striking example in Canada.

It should therefore be noted that many of the issues relating to the wearing of religious symbols by police officers, teachers, principals and judicial personnel in Quebec - including the legal issues that arise - are complex and do not lend themselves to summary analyzes on the basis of piecemeal evidence, as the appellants ask us to do in this case.....

At this stage of the judicial proceedings, a suspension of sections 6 and 8 of the State Secularity Act can not be contemplated since the Court must presume that the public interest is served by the maintenance in force of these provisions given the presumption of constitutional validity. 

Chief Justice Hesler would have granted a temporary injunction, saying in part:

To sum up, it appears at this stage that the risk of suffering irreparable harm has materialized for certain teachers, all of whom are women, who aspired to a career in teaching. The prejudice will remain for the others who, not wishing to abandon the wearing of a religious sign, will have to give up their choice of career, or even move out of Quebec....

Without prejudging the fate of the appeal, which will be heard in October 2020, it is better to uphold respect for fundamental rights during the proceedings, considering the obligation on the courts to enforce these rights, rather than to deprive people of their fundamental rights, even for a limited time. [All English translations are via Google Translate].

Montreal Gazette reports on the decision.

Supreme Court Review Sought In City Council Speech Limits At Meeting On Mosque

A petition for certiorari (full text) was filed on Dec. 9 with the U.S. Supreme Court in Youkhanna v. City of Sterling Heights. In the case, the U.S. 6th Circuit Court of Appeals rejected challenges to the manner in which the city of Sterling Heights, Michigan conducted a raucous city council meeting at which settlement of a RLUIPA lawsuit was being considered.  At issue was the city's settlement of a zoning dispute with backers of a mosque.  City Council placed limits on the scope of comments that citizens could make during the meeting, and eventually cleared the meeting room when the audience became disruptive. (See prior posting.)

Appeals Court Dismisses Suit To Enforce Board's Suspension of Church Pastor

In Stewart v. McCray, (IN App., Dec. 11, 2019), an Indiana state appellate court dismissed a suit seeking to enforce a suspension imposed by the Board of Directors of a Baptist church on its pastor. The trial court had found the pastor in contempt a the court's order enforcing the suspension.  As the court of appeals explained:

This matter stems from a years-long dispute between certain members of the congregation of the Canaan Baptist Church, in Elkhart, Indiana ... and its pastor, Reverend McNeal Stewart, III ... involving allegations that Rev. Stewart usurped the authority of the Church’s board of directors and disregarded the constitution and bylaws of the Church.....

The instant matter arises from Rev. Stewart’s suspension from his pastoral duties for his alleged failure to act in accordance with the Church’s Bylaws. Regardless of whether the parties, at times, failed to adhere to the Church’s Bylaws, at bottom, this is a dispute over the Church’s leadership. As such, this matter, at its core, is purely ecclesiastical and one which the trial court lacked subject matter jurisdiction to adjudicate.

Catholic School Principal's Retaliatory Discharge Claim Dismissed

In Rehfield v. Diocese of Joliet, (IL App., Dec. 10, 2019), an Illinois state appeals court dismissed a suit by the former principal of a Catholic school who contended that she was the victim of a retaliatory discharge. Her suit raised both common law and Whistleblower Act claims. Plaintiff's firing came after controversy over her contacting the police about a threatening phone call from a parent to the parish priest. In dismissing the suit, the court said in part:

[T]he ecclesiastical abstention doctrine applied to Rehfield’s claims. Further, since this case involved the Diocese’s subjective decision to terminate Rehfield’s employment and did not involve church charters, constitutions and bylaws, deeds, State statutes, or other evidence that would resolve the matter the same as it would a secular dispute, we decline to employ the neutral principals of law approach.... Last, because we find the ecclesiastical abstention doctrine applied to Rehfield’s claims, we need not address ... whether claims for common law retaliatory discharge are available to contractual employees.

Trump Signs Executive Order On Title VI and Anti-Semitism

President Trump yesterday issued an Executive Order on Combating Anti-Semitism. The Order reads in part:

Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq., prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance.  While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices.  Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.

It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI....

The Executive Order goes on to provide that in enforcing Title VI, executive departments shall consider the definition of anti Semitism adopted ... by the International Holocaust Remembrance Alliance, and "the 'Contemporary Examples of Anti-Semitism' identified by the IHRA, to the extent that any examples might be useful as evidence of discriminatory intent."

The White House issued a Fact Sheet on the Order which, as reported by AP, was signed during a White House Hanukkah reception.

Methodist Parent Body Sues SMU Over Attempted Split From Church Control

Suit was filed last week in a Texas state trial court by the regional parent body of the Methodist Church against Southern Methodist University alleging that SMU last month filed invalid amendments to its Articles of Incorporation purporting to eliminate the parent body's control over SMU's board of trustees, over amendments to SMU's Articles of Incorporation, and over sale of SMU's property.  The complaint (full text) in South Central Jurisdictional Conference of the United Methodist Church v. Southern Methodist University, (TX Dist. Ct., filed 12/4/2019), alleges:

The November 2019 Articles make no mention of SCJC, much less any mention of the rights permanently guaranteed to SCJC by SMU’s governing documents. Instead, by deleting any mention of SCJC and its rights, the November 2019 Articles attempt to terminate all of SCJC’s rights and relationship with SMU without approval or authorization of SCJC for the amendment in Violation of SMU’s governing documents and the Trustees’ fiduciary duties to SCJC.

RNS, reporting on the lawsuit, says that the moves by SMU are "part of the latest fallout over the global denomination's decision earlier this year to strengthen language in its rulebook barring LGBTQ members from marriage and ordination."

New USCIRF Report on Apostasy, Blasphemy and Hate Speech Laws In Africa

Yesterday, he U.S. Commission on International Religious Freedom released a 50-page report titled Apostasy, Blasphemy, and Hate Speech Laws in Africa: Implications for Freedom of Religion or Belief (full text of report). The Executive Summary reads in part:

The freedoms of opinion and expression and of religion or belief are intricately intertwined—where violations occur against one, there are often violations against the other. Although these human rights are protected under articles 18 and 19 of the Universal Declaration of Human Rights (UDHR), states around the world continue to pass and enforce laws that restrict both freedoms. This paper provides a survey and analysis of speech restrictions in Africa that have, or may, limit FoRB. Laws that restrict apostasy (the public renunciation of one’s religion), blasphemy (the insult of a religion or religious objects or places), and hate speech (generally encompassing communication that prejudices a particular group based on race, religion, ethnicity, or other factor) all limit freedom of expression. Such laws also have unique implications for citizens’ abilities to express and practice their faith. These laws are prevalent throughout Africa, where at least 9 countries have apostasy laws, at least 25 criminalize blasphemy, and at least 29 have laws against hate speech.

Misunderstanding of RFRA Not A Defense To Willful Failure To File Tax Returns

The Oregonian reports that an Oregon federal district court yesterday found a tax protester guilty on four counts of willful failure to file tax returns.  The verdict came in a second trial on stipulated facts after defendant's first trial ended in a hung jury. The court ruled that while a good faith misunderstanding of the tax law is a defense to "willfulness", that defense was unavailable here. As reported by The Oregonian:

Bowman’s lawyer had argued during Bowman’s jury trial that Bowman’s reliance on another federal law, the Religious Freedom [Restoration] Act, led to his "good faith’' misunderstanding of his obligations under the federal tax code. The judge threw out that defense before Bowman’s second trial, ruling that any "good faith'' misunderstanding had to be of the tax code itself, not another law.

The court's ruling was presumably based on its reading of the U.S. Supreme Court's decision in Cheek v. United States (1991).  An appeal of the conviction is planned.

Court Dismisses Challenges To NY Repeal of Religious Exemption From Vaccination Requirement

In F.F. on behalf of her minor children v. State of New York, (Albany Cty NY Sup. Ct., Dec. 3, 2019), a New York state trial court upheld New York's repeal of the religious exemption to the state's compulsory vaccination requirement for school children.  The court rejected Free Exercise, Free Speech and Equal Protection challenges to the repeal.  The suit was brought by some 55 families of school children. In rejecting free exercise claims by plaintiffs, the parents of school children, the court rejected their argument that the object of the law was to target religion rather than protect public health.  The court went on to say in part:

[P]lainitffs most strenuous argument for applying strict scrutiny is that the repeal of the legislation was infected by statements made by individual legislators whose comments, they say, demonstrate unconstitutional hostility toward plaintiffs' sincerely held religious beliefs.  For this argument, Plaintiffs cite Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm'n., (138 S Ct 1719 [2018]), where the Supreme Court relied on the comments of individual members of the Colorado Civil Rights Commission, which sanctioned a baker for his refusal to make a wedding cake for a same sex couple....

This Court declines to extend that part of the Supreme Court's analysis in Masterpiece Cakeshop, which probed the comments of individual members of a decision-making body to the collective decision-making of New York State's Legislature and Executive.... [I]n Masterpiece Cakeshop, the Court considered the remarks of a seven-member administrative body, not a state legislature.

The trial court had previously denied a preliminary injunction against the exemption repeal (see prior posting), and the state appellate court summarily affirmed that decision. Albany Times-Union reports on the trial court's latest decision.

Supreme Court Denies Review Of Kentucky Ultrasound Informed Consent Law

The U.S. Supreme Court today denied review in EMW Women’s Surgical Center v. Meier, (Docket No. 19-417, certiorari denied 12/9/2019). (Order List). In the case, the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected a 1st Amendment free speech challenge to Kentucky's Ultrasound Informed Consent Law. The law requires a doctor to make the fetal heartbeat audible, and to display and describe ultrasound images, to a woman seeking an abortion. (See prior posting.) CNN reports on the Court's action.