Recent Articles of Interests

From SSRN:

• Engy Abdelkader, The Victimization of Muslim American Women and the Challenges of Imperial Feminism in Comparative Context, (Oxford University Press (2020 Forthcoming)).
• Harold Anthony Lloyd, Gorsuch and Originalism: Some Critiques from Logic, Scripture, and Art, (March 5, 2017).
• Fajiri Muhammadin, Book Review: 'Contemporary Muslims and Human Rights Discourse A Critical Assessment' by Dr Umar Ahmad Kasule, (IIUM Law Journal, Vol. 27 No. 2, 2019).
• Eva Brems, Hidden Under Headscarves? Women and Religion in the Case Law of the European Court of Human Rights, (Forthcoming, Religion & Human Rights, 2020).
• Eva Brems & Jogchum Vrielink, Floors or Ceilings: European Supranational Courts and Their Authority in Human Rights Matters, (in Koen Lemmens, Stephan Parmentier and Louise Reyntjens (eds), Human Rights with a Human Touch: Liber Amicorum Paul Lemmens, Inttersentia Publishers, 2019, 281-312).
• Hillel Y. Levin, Stacie Patrice Kershner, Timothy D. Lytton, Daniel Salmon & Saad B. Omer, Stopping the Resurgence of Vaccine-Preventable Childhood Diseases: Policy, Politics, and Law, (University of Illinois Law Review, Forthcoming).
• Richard W. Garnett, Attempts, Complicity, Virtue & the Limits of Law, (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, John Witte, Jr. (London: Routledge), Forthcoming).
• Victor C. Romero, Servant Leadership and Presidential Immigration Politics: Inspiration from the Foot-Washing Ritual, (26 Wash. & Lee. J. Civ. Rts. & Soc. Just. 147 (2019)).
• Hillel Y. Levin, Private Schools’ Role and Rights in Setting Vaccination Policy: A Constitutional and Statutory Puzzle, (William & Mary Law Review, Forthcoming).
• David Read, Konrad Lee, Jennifer Anderson & Chad S. Pehrson, Corporation of the Presiding Bishop v. Amos After Thirty Years: Exploring Limits of Religious Freedom, Church Employment, and the Civil Rights Act, (Public Interest Law Journal, Vol. 28, pp. 247- 294 No. 2 (2019)).
• Fajri Muhammadin, Muhammad Awfa & Kirana Anjani, Kirana, Applying Customary International Law in the Indonesian Human Rights Court - An Islamic Solution of the Conundrum, (Al-Shajarah: Journal of the International Institute of Islamic Thought and Civilisation (ISTAC), Vol. 24 (2) of 2019).

Son's Wish To Be Cremated Prevails Over Mother's Religious Objections

In In re Remains of Ghostley, (AZ App., Jan. 22, 2020), a mother appealed the order of a probate court directing that the remains of her adult son be cremated.  The son's father and the son's girl friend both affirmed that the son's wishes were to be cremated and to have his ashes spread over the places he loved.  The mother contended that her Jewish religious beliefs opposed cremation and that the thought of her son's being cremated caused her to suffer emotional hardship. Arizona statutes provide that the decedent's wishes must be followed "if they are reasonable and do not impose an economic or emotional hardship." The Arizona appellate court concluded:

[T]he probate court did not err in making the factual determination that Mother’s distress arising from her son’s wishes to be cremated did not rise to the level of “emotional hardship” as contemplated by § 36-831.01. We defer to a trial court’s factual findings unless they are clearly erroneous....

Mother testified that her distress stemmed primarily from her professed religious beliefs, the sincerity of which we do not purport to question here. However ... nothing compelled the court to elevate Mother’s religious beliefs above the wishes of her son. Notably, the record reflects that decedent was also religious, and his own spiritual beliefs could have played a role in his decision to be cremated.

AP reports on the decision.

President Proclaims National School Choice Week

Yesterday President Trump issued a Presidential Proclamation (full text) declaring January 26 to February 1 as National School Choice Week.  His Proclamation says in part:

Each child is a gift from God who has boundless potential and deserves a fair shot at the American Dream. To have that fair shot, children and their families must be free to pursue an educational environment that matches their individual learning style, develops their unique talents, and prepares them with the knowledge and character needed for fulfilling and productive lives.....

Today, I renew my call on the Congress to focus on what is best for children and pass a Federal tax credit to support State-based educational choice programs.....

Trump Addresses March For Life

Yesterday President Trump addressed the 47th Annual March for Life on the National Mall in Washington. (Full text of remarks). He is the first President to attend the March in person.  He said in part:

All of us here today understand an eternal truth: Every child is a precious and sacred gift from God.  (Applause.)  Together, we must protect, cherish, and defend the dignity and sanctity of every human life.  (Applause.)...

We have taken decisive action to protect the religious liberty –- so important.  Religious liberty has been under attack all over the world, and, frankly, very strongly attacked in our nation.  You see it better than anyone.  But we are stopping it, and we’re taking care of doctors, nurses, teachers, and groups like the Little Sisters of the Poor.  (Applause.)  We are preserving faith-based adoption.  (Applause.)

And to uphold our founding documents, we have confirmed 187 federal judges — (applause) — who apply the Constitution as written, including two phenomenal Supreme Court Justices: Neil Gorsuch and Brett Kavanaugh.  (Applause.)

President Sends Greetings On Lunar New Year

The White House today issued a message from President Trump (full text) sending greetings to those in the U.S. and around the world who are celebrating the Lunar New Year.  He said in part:

On this occasion, we join millions around the globe in welcoming the Year of the Rat and embracing a new year filled with opportunities to make a positive impact in the lives of others.  As those of Asian heritage celebrate this special time of year ... we wish them happiness, health, and prosperity in the year to come.

HHS Says California Violated Federal Conscience Protections On Abortion Coverage

The U.S. Department of Health and Human Services (HHS) Office of Civil Rights today issued a Notice of Violation (full text) to the state of California finding that the state violated federal law by making elective abortion coverage mandatory in all policies offered by insurance companies regulated by the state's Department of Managed Health Care. A Christian church and a Catholic religious order filed complaints with HHS saying that California's Mandate Letters to health care plans resulted in the religious organizations being required to offer their employees policies that cover abortions, in violation of the conscience provisions of the federal Weldon Amendment.

The Notice of Violation explains:

... [T]he only exemption California offered (to a health plan issuer) was limited to plans covering a narrow set of “religious employers” under California law. However, the Weldon Amendment protects from discrimination all plans that decline to cover abortion, without requiring any plan issuers, sponsors, or beneficiaries to have a religious character or have a religious reason for not providing or paying for such coverage.... [E]ven a categorical exemption of “religious employers,” as defined by California law, would have only been available to approximately 37% of those employer groups who, prior to the Mandate Letters, had health care coverage that limited or excluded abortion.

The Notice of Violation concludes:

If OCR does not receive sufficient assurance that California will cease requiring all health care plans, as a class, to cover abortion, or that it is willing to negotiate in good faith towards that end, OCR will forward this Notice of Violation and the evidence supporting OCR’s findings in this matter to the appropriate HHS funding components for further action under applicable grants and contracts regulations. Such referral may ultimately result in limitations on continued receipt of certain HHS funds in accordance with the Constitution and applicable Supreme Court case law. 

HHS also issued a press release explaining its action which in part quotes the Director of HHS's Office of Civil Rights:

We are putting California on notice that it must stop forcing people of good will to subsidize the taking of human life, not only because it’s the moral thing to do, but because it’s the law.

Pence Speaks At World Holocaust Forum

Vice President Mike Pence spoke yesterday at the Fifth World Holocaust Forum in Jerusalem. (Full text of remarks.) The event, held at Yad Vashem, marked the 75th anniversary of the liberation of Auschwitz.  The vice-president said in part:

Through pogroms, persecutions, and expulsions in the ghettos, and finally, even through the death camps, the Jewish people clung to an ancient promise that He would “never leave you or forsake you” and that he would leave this people to inherit the land that he swore to your ancestors that he would give them.

And so, today, as we bear witness to the strength and the resilience and the faith of the Jewish people, so too we bear witness to God’s faithfulness to the Jewish people.

UPDATE: On Jan. 24, President Trump issued a Proclamation on National Day Of Remembrance Of The 75th Anniversary Of The Liberation Of Auschwitz, 2020.

World Court Orders Myanmar To Prevent Further Genocide of Rohingya

The United Nations International Court of Justice has handed down an opinion and order imposing provisional measures on Myanmar to protect the Rohingya in Myanmar's Rakhine state from continuing acts of genocide. The court's opinion in The Gambia v. Myanmar, (ICJ, Jan. 23, 2020), deals at length with jurisdictional issues, standing and the availability of provisional relief pending a final decision in the case. Finding that a plausible claim has been stated and that there is a real and imminent risk of irreparable prejudice if interim relief is not granted, the Court ordered:

The Republic of the Union of Myanmar shall, in accordance with its obligations under the Convention on the Prevention and Punishment of the Crime of Genocide, in relation to the members of the Rohingya group in its territory, take all measures within its power to prevent the commission of all acts within the scope of Article II of this Convention, in particular:

(a) killing members of the group;

(b) causing serious bodily or mental harm to the members of the group;

(c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; and

(d) imposing measures intended to prevent births within the group;

...The Republic of the Union of Myanmar shall, in relation to the members of the Rohingya group in its territory, ensure that its military, as well as any irregular armed units which may be directed or supported by it and any organizations and persons which may be subject to its control, direction or influence, do not commit any acts described in point (1) above, or of conspiracy to commit genocide, of direct and public incitement to commit genocide, of attempt to commit genocide, or of complicity in genocide....

The Republic of the Union of Myanmar shall take effective measures to prevent the destruction and ensure the preservation of evidence related to allegations of acts within the scope of Article II of the Convention on the Prevention and Punishment of the Crime of Genocide....

The Court also issued a press release summarizing the decision. CNN has extensive background on the case.

10th Circuit Hears Oral Arguments On Passport Gender Markers

The U.S. Court of Appeals for the 10th Circuit yesterday heard oral arguments (audio of full arguments) in Zzyym v. Pompeo. In the case, a Colorado federal district court held that the State Department's policy on passport gender designations is arbitrary and capricious under the Administrative Procedure Act. (Full text of district court's 2018 opinion). The Department requires selection of "M" or "F" as gender on passport applications, and refused to allow plaintiff who is an intersex individual to select "X" as a gender marker. Lambda Legal's case page has extensive additional information and links to pleadings, briefs and decisions in the case.

Christian School Denied Injunction Against Anti-Discrimination Provisions In Aid Programs

In Bethel Ministries, Inc. v. Salmon, (D MD, Jan. 21, 2020), a Maryland federal district court refused to issue a preliminary injunction requested by a Christian elementary school. Bethel Christian Academy sought to enjoin enforcement of a provision requiring non-discrimination on the basis of sexual orientation or gender identity in order to participate in state-sponsored scholarship and school aid programs.  The court concluded that the school had not shown that the state targeted, was hostile to, or expressly discriminated against the school because of its religious beliefs. Nor had the school shown a likelihood of success on its claim that its free speech rights were infringed.

Utah Administrative Rule Banning Conversion Therapy Becomes Effective

As reported by NPR, in Utah a new rule under the Mental Health Professional Practice Act (full text of rule [scroll to pp. 61-66]) bans mental health professionals from providing conversion therapy to minors. The rule defines conversion therapy as

any practice or treatment that seeks to change the sexual orientation or gender identity of a patient or client, including mental health therapy that seeks to change, eliminate, or reduce behaviors, expressions, attractions, or feelings related to a patient or client's sexual orientation or gender identity.

The new rule became effective yesterday.  It excludes from coverage:

(i) a clergy member or religious counselor who is acting substantially in a pastoral or religious capacity and not in the capacity of a mental health therapist; or

(ii) a parent or grandparent who is a mental health therapist and who is acting substantially in the capacity of a parent or grandparent and not in the capacity of a mental health therapist.

KUER traces the evolution of the ban in Utah. After the original version of the ban failed to pass the state legislature last year, Utah Gov. Gary Herbert negotiated a version with the above exclusions that gained the support of the Church of Jesus Christ of Latter Day Saints. While Utah becomes the 19th state to pass this sort of ban, it is the first with a Republican governor and Republican controlled legislature to do so. [Thanks to Scott Mange for the lead.]

Canadian Court Says University Need Not Discipline Abortion Counter-Protesters

In UAlberta Pro-Life v Governors of the University of Alberta, (Alberta Ct. App., Jan. 6, 2020), an appellate court in the Canadian province of Alberta held that the University of Alberta was not required to discipline counter-demonstrators who held signs and banners that blocked the pro-life displays of an anti-abortion student group. Justice Watson, writing the primary opinion, said in part:

The case at bar does not provide an appropriate opportunity to reach any final conclusion about what a ‘positive’ aspect of freedom of expression might mean. It is one thing to provide equal access to opportunities to express. It is quite another to take steps to ensure that the party exercising the freedom has an optimal chance to persuade other people. The University cannot be expected to guarantee that Pro-Life’s message will persuade anybody. More particularly, one thing it does not mean, in my view, is that the University was required to set its face so much against counter protests that it must prosecute without exception any overshoot potentially governed by the Rules of Student Behaviour.

The court however held that the University was not justified in imposing a $17,500 security deposit for the organization to hold a subsequent event.  It held that the University is subject to Canada's Charter of Rights and Freedoms in regulating freedom of expression by students on campus grounds.

Justice Watson then wrote in part:

While I do not agree that victim blaming is what is involved, there appears to be error here by the University in imposing on Pro-Life the exclusive burden of overcoming problems arising from the fact that their expression might attract an adverse response.

... [I]t cannot be said that Pro-Life should be held 100% responsible for costs that future events might generate. Although the University says the concept of the heckler’s veto is misplaced here, the position for the University escalated the status of potential objectors to not merely being on par with the expresser, but above the expresser’s position.

[Thanks to James Phillips for the lead.]

Transcript of Today's Arguments in Espinoza v. Montana Dept. of Revenue Now Available

The transcript of today's oral arguments in the U.S. Supreme Court  in Espinoza v. Montana Department of Revenue is now available. Amy Howe at SCOTUS blog discusses the oral arguments, saying in part:

This morning the Supreme Court heard oral argument in the latest chapter of the battle over the use of public funding for religious schools. Supporters of such funding argue that the government should not be allowed to discriminate against religious families and schools, while opponents warn that requiring the government to allow public funds to be used for religious schools could harm public education. Both of those issues were at the forefront of today’s oral argument, as was the question of whether the lawsuit should continue at all. By the time the justices left the bench, it appeared that the outcome could hinge on the votes of Chief Justice John Roberts and Justice Stephen Breyer.

Supreme Court Will Hear Arguments Today In Montana Religious School Aid Case

The U.S. Supreme Court will hear oral arguments this morning in Espinoza v. Montana Department of Revenue.  In the case, the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.) The Solicitor General will  participate in oral argument, contending that Montana's "no-aid" provision violates the U.S. Constitution's free exercise clause.  SCOTUS blog has a preview of today's arguments. Here is SCOTUS blog's case page with links to all the filings in the case and to additional discussion of the issues involved. I will post the transcript of the oral arguments later today when it becomes available.

2nd Circuit: No Amended Complaint In Falun Gong Torture Lawsuit

In Chen Gang v. Zhao Zhizhen, (2d Cir., Jan. 13, 2020), the U.S. 2nd Circuit Court of Appeals agreed with the district court holding plaintiffs cannot file a third amended complaint in their long-running lawsuit. In the suit, originally filed in 2004, plaintiffs representing a class of Falun Gong practitioners claimed that defendant used his influential position in China to encourage persecution of Falun Gong members there. The motion came after dismissal of plaintiffs' earlier complaint alleging aiding and abetting and conspiracy in violation of the Torture Victim Protection Act. Washington Post reported on the decision.

New Survey On Antisemitism In France

American Jewish Committee Paris yesterday released a new 35-page report on antisemitism in France (Full text of report). The report analyzes surveys conducted in October and November of 2019. AJC's release summarizing the report says in part:

Nearly three-quarters, 73%, of the French public, and 72% of Jews, consider antisemitism a problem that affects all of French society. 47% of the general public and 67% of the Jewish respondents say the level of antisemitism in France is high, while 27% and 22%, respectively, say it is low.

While 53% of the general public say antisemitism has been increasing, and 18% decreasing, in recent years, 77% of Jews say it has increased and 12% decreased....

... 70 percent of French Jews say they have been victims of at least one antisemitic incident in their lifetime, 64% have suffered anti-Semitic verbal abuse at least once, and 23% have been targets of physical violence on at least one occasion, with 10 percent saying they were attacked several times.

5th Circuit: Court Should Not Agree To Use Pronoun Requested By Litigant

In United States v. Varner, (5th Cir., Jan. 15, 2020), the U.S. 5th Circuit Court of Appeals denied a motion by a transgender female inmate for a name change on the inmate's judgement of confinement.  Petitioner wanted the male name on her judgment changed to reflect her later name change to that of a female.  In addition, petitioner sought to require the courts to refer to her using female pronouns. The majority and the partial dissent disagree on whether this motion refers to the district court, or only to the Court of Appeals. In rejecting this request, the majority said in part:

[I]f a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality. Federal judges should always seek to promote confidence that they will dispense evenhanded justice. See Canon 2(A).... In cases like these, a court may have the most benign motives in honoring a party’s request to be addressed with pronouns matching his “deeply felt, inherent sense of [his] gender.” ... Yet in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.... Even this appearance of bias, whether real or not, should be avoided....

A Washington Post op-ed discusses the decision.

Recent Articles of Interest

From SSRN:

• Monika Zalnieriute & Catherine Weiss, Reconceptualizing Intersectionality in Judicial Interpretation: Moving Beyond Formalistic Accounts of Discrimination on Islamic Covering Prohibitions, (Berkeley Journal of Gender, Law and Justice, 2020).
• Benjamin L. Berger, Is State Neutrality Bad for Indigenous Religious Freedom?,(in Jeffrey Hewitt, Beverly Jacobs, and Richard Moon, eds., Indigenous Spirituality and Religious Freedom (Toronto: University of Toronto Press, Forthcoming)).
• Anthony Shaw, Expressions of Sovereign Power in the Roman Tetrarchy and the Byzantine Empire: A Comparative Constitutional Analysis, (December 27, 2019).
• Robert H. Jackson & John Q. Barrett, The Faith of My Fathers, (168 U. Pa. L. Rev. 1 (2019).
• Michael A. Helfand, ‘The Peculiar Genius of Private-Law Systems': Making Room for Religious Commerce, (Washington University Law Review, Forthcoming).
• Katherine Shaw, Reva B. Siegel & Melissa Murray, Introduction: Reproductive Rights and Justice Stories, (Forthcoming).
• David S. Cohen & Carole Joffe, Obstacle Course: The Everyday Struggle to Get an Abortion in America (Introduction), (California Press 2020).
• Beatrice Jessie Hill & Ruth Faden, Brief for Biomedical Ethicists Ruth R. Faden, PH.D., et al., Amici Curiae in Support of Petitioners, EMW Women’s Surgical Center, P.S.C., et al. v. Adam Meier, No. 19-417 (9th Cir. Oct. 28, 2019),  (November 28, 2019).
• Shirley Lin, Dehumanization 'Because of Sex': A Neutral Approach to the Rights of Sexual Minorities Under Multiaxial Analysis, (Lewis & Clark Law Review, Forthcoming).
• M. Stuart Madden, The Social Guidance of Myth, Folklore and Faith, (December 22, 2019).

Claims Against Notre Dame and Feds Over Contraceptive Coverage Move Ahead

Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Jan. 16, 2020), is the latest installment in the dispute over the extent to which Notre Dame University must provide contraceptive coverage in its health insurance plans for employees and students. As described by the Indiana federal district court:

There are really two separate disputes at play here. The first involves a challenge to regulations that would allow Notre Dame to declare itself exempt from the Women’s Health Amendment of the Patient Protection and Affordable Care Act (“ACA”)....

The second part of this case presents a [new] wrinkle.... [A] week after issuing the interim final rules..., the Federal Defendants executed a private settlement agreement with Notre Dame exempting the university from all existing and future requirements with respect to contraceptive coverage. Notre Dame did not seek input from its students or faculty before entering into the settlement agreement. The Plaintiffs in this case — Irish 4 Reproductive Health (an association of Notre Dame students), Natasha Reifenberg, and Jane Does 1-3 — claim this backroom deal is illegal and unconstitutional. 

The court refused to dismiss plaintiffs' claims that the settlement agreement and the exemptive rules violate the Administrative Procedure Act and the Establishment Clause of the 1st Amendment. However the court did dismiss due process and equal protection challenges. (See prior related posting.)

Canadian Court Says Indigenous Events In School Did Not Infringe Religious Freedom of Christian Students

In Canada, in Servatius v. Board of Education School District No. 70, (BC Sup. Ct., Jan. 8, 2020), a British Columbia trial court judge rejected claims of infringement of religious freedom asserted by the mother of two school children. The court summarized the dispute:

As part of an effort to acquaint students with Indigenous culture and to promote a sense of belonging in Indigenous children, a Nuu-chah-nulth Elder visited a Port Alberni elementary school and demonstrated the practice of smudging. A few months later, an assembly at this public school witnessed an Indigenous dance performance, in the midst of which the dancer said a prayer. The petitioner is an evangelical Christian. Her nine-year-old daughter and seven-year-old son were enrolled in the school and witnessed these demonstrations of Indigenous culture and spirituality.

In dismissing the claims, the court said in part:

When arrangements are made for Indigenous events in its schools, even events with elements of spirituality, the School District is not professing or favouring Indigenous beliefs. Educators are holding these events to teach about Indigenous culture, and to introduce students to Indigenous perspectives and worldviews....

I conclude that proof on an objective basis of interference with the ability of the petitioner or her children to act in accordance with their religious beliefs requires more than the children being in the presence of an Elder demonstrating a custom with spiritual overtones or being in the presence of a dancer who said a brief prayer. In most instances, it is not difficult to recognize the boundary between a student learning about different beliefs and being made to participate in spiritual rituals. A field trip to a mosque to watch prayers would be learning about Islam; an Imam coming to the classroom and demonstrating prayer rituals would likewise not be problematic. However, in either of these cases, if the involvement of the students progressed to being called upon to pray or read from the Koran then it might well be said that educators have compelled the manifestation of a specific religious practice or the affirmation of a specific religious belief. If a Catholic priest came to school with altar candles and a censer containing incense to acquaint the students with the sights and scents of Church rites, this would seem to be well within the bounds of what the S.L. case stands for: religious freedom is not compromised when students are taught about other beliefs. If, however, the children underwent a baptism, this would be far over the line.

(See prior related posting.)

Supreme Court Grants Review In Contraceptive Mandate Exemption Case

The U.S. Supreme Court today granted review in Little Sisters of the Poor v. Pennsylvania (Docket No. 19-431) and Trump, President of the U.S. v. Pennsylvania (Docket No. 19-454) (certiorari granted 1/17/2020). (Order List).The two cases were consolidated for oral argument. In the case, the U.S. 3rd Circuit Court of Appeals affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting). Little Sisters of the Poor were intervenors in the 3rd Circuit case. (See prior posting.)

8th Circuit Hears Arguments In Religion Clause Challenge To Missouri Abortion Restrictions

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Doe v. Parson (Docket No. 19-1578). In the case, a Missouri federal district court rejected both Establishment Clause and free exercise challenges to Missouri's abortion law.  The suit, filed by a member of the Satanic Temple, challenges the requirement that health care providers furnish women seeking an abortion in Missouri a state-prepared booklet that states, in part, that life begins at conception. (See prior posting.) Courthouse News Service reports on yesterday's arguments.

Online Site Has Immunity In Banning Conversion Therapy Videos

In Domen v. Vimeo, Inc., (SD NY, Jan. 15, 2020), a New York federal magistrate judge dismissed a suit by James Domen, a pastor who is the founder of Church United, a non-profit organization devoted to preserving the rights of pastors to exercise their faith without unlawful infringement.  Domen sued claiming religious and sexual orientation discrimination after Vimeo, an online video-sharing website, closed his account when he refused to remove five videos promoting sexual orientation change efforts.  The court held that Vimeo had both publisher immunity and immunity to police content under Section 230 of the Communications Decency Act, and that Section 230 pre-empts state civil rights laws. It also held that Domen had not shown the required discriminatory intent under either California or New York's anti-discrimination laws, and had not stated a free speech claim under California's constitution.  Courthouse News Service reports on the decision.

6th Circuit: Mosque Is Not In Interstate Commerce Under Federal Arson Statute

In United States v. Doggert, (6th Cir., Jan. 15, 2020), the U.S. 6th Circuit Court of Appeals reversed defendant's conviction for solicitation to commit federal arson of a local mosque. The federal arson statute (18 USC §844(i)) covers only property used in interstate of foreign commerce or in an activity affecting such commerce. The court said in part:

By any conventional measure, these terms do not cover the attempted destruction of a local mosque or for that matter any house of worship. In everyday English, one does not think of a mosque that serves a 200-person local community as a building used in commerce, much less interstate commerce. There may be plenty of good reasons to prosecute Robert Doggart for his deranged plan. But the words of this statute are not one of them.

However the court upheld Doggart's conviction under 18 USC §373 for solicitation to commit a crime of violence, namely destroying religious property in violation of 18 USC 247. [Thanks to Volokh Conspiracy for the lead.]

Suit In India Over Discriminatory Citizenship Law

In India, the state of Kerala has filed suit in the Supreme Court challenging as discriminatory the Citizenship Amendment Act, 2019, and various prior rules on citizenship for members of certain religious minorities who entered the country illegally. The complaint (full text) in State of Kerala v. Union of India, (India Sup. Ct., filed 1/14/2020), alleges in part:

The Impugned Amendment Act and Rules and Orders, though cover the persecuted religious minorities of Pakistan, Afghanistan and Bangladesh, overlooks the issues of Rohingyas in Myanmar and Muslims in Sri Lanka, who are also miniscule minorities in the said countries, which are also sharing international borders with India and which are also countries to which and from which there has been trans- border migrations....

The Impugned Amendment Act and Rules and Orders are discriminatory in so far it covers only religious persecution, among persecutions on very many grounds, of an irrationally chosen class of minorities in an unreasonably chosen class of neighbouring countries.... They do not cover the persecutions on the grounds of ethnicity, linguistics etc even in the said class of three countries. They do not cover the ethnic issues of Balochs, Sindhis, Pakthuns and Mohajirs in Pakistan and the Biharis in Bangladesh.

Jurist reports on the lawsuit. (See prior related posting.)

New Federal Proposals On Grants To Religious Entities, Campus Speech and Guidance on School Prayer

The White House (Fact Sheet, President's Remarks), the Department of Justice and the Department of Education each yesterday announced initiatives on school prayer and participation of religious organizations in government grant programs.

The Department of Education issued a 203-page Notice of Proposed Rulemaking (full text) which proposes rule changes to prevent discrimination against faith-based entities receiving federal grants and to protect free speech on campuses. DOE and the Department of Justice also issued revised Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools (full text).

The Department of Justice issued a 29-page Notice of Proposed Rulemaking (full text) on  Equal Participation of Faith-Based Organizations in Department of Justice’s Programs and Activities. Among the changes described in the Notice is one which:

delet[es] the requirement that faith-based social service providers refer beneficiaries objecting to receiving services from them to an alternative provider and the requirement that faith-based organizations provide notices that are not required of secular organizations.

Finally, the Office of Management and Budget issued a 2-page Memorandum providing guidance as to federal grants. (full text). It reads in part:

Even when no Federal regulation or grant term penalizes or disqualifies grant applicants from participation based on their religious character, some state laws governing awards to subgrantees, including state constitutions, may purport to limit sub-grantee participation in violation of the U.S. Constitution. In attempting to comply with such state constitutions and laws, grantees may be discriminating against applicants for sub-grants on the basis of religion, in violation of the Constitution's Free Exercise Clause and the grantee's commitment to adhere to Federal laws prohibiting discrimination under 2 C.F.R. § 200.300. Accordingly, grant awarding agencies shall ensure that the terms of the Federal grants they award make clear that states or other public grantees may not condition sub-awards of Federal grant money in a manner that would disadvantage grant applicants based on their religious character.

USA Today reports on these developments.

8th Circuit Hears Oral Arguments In Challenge To State Anti-BDS Law

Yesterday the U.S. 8th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Arkansas Times LP vs. Waldrip.  In the case, an Arkansas federal district court dismissed a challenge to an Arkansas law which requires companies doing business with the state to certify that they are not boycotting Israel. (See prior posting.) Courthouse News Service reports on yesterday's oral arguments.

January 16 Is Religious Freedom Day

January 16 is Religious Freedom Day-- celebrating the anniversary of the passage in 1786 of the Virginia Statute of Religious Freedom. Each year since 1993 the President has issued a proclamation marking the day. Presumably this year's Proclamation will be posted by the White House today. Gov. Pete Ricketts of Nebraska also issued a Proclamation (full text) recognizing the day.

UPDATE: Here is President Trump's Proclamation on Religious Freedom Day, 2020.

Religious Group's Distribution of Vegan Food May Be Expressive Conduct

In Krishna Lunch of Southern California, Inc. v. Gordon, (9th Cir., Jan. 13, 2020), the U.S. 9th Circuit Court of Appeals held that Krishna Lunch had plausibly pleaded that its distribution of sanctified vegan and vegetarian food (prasada) is protected expressive conduct under the 1st Amendment. The court explained:

While distributing prasada, the organization plans on chanting the names of God and other devotional hymns and songs, speaking with interested students and others of the University of California, Los Angeles (“UCLA”) community, distributing religious literature, and displaying signs depicting reincarnation, animal protectionism, and other topics related to its followers’ beliefs. Drawing all reasonable inferences in favor of Krishna Lunch, we can infer that in these circumstances an onlooker would understand the distribution of food “to be communicative.”

However the court dismissed the organization's free exercise claim, finding that UCLA's four-times-per-year policy is neutral and generally applicable, and saying:

Krishna Lunch has not negated every conceivable basis that might support the policy.

New Report On State Laws Impacting Church-State Separation and Religious Equality

Last week, American Atheists released its report: 2019 State of the Secular States.  The introduction to the 45-page report says in part:

In 2019 we saw a heightened awareness about the importance of the separation of religion and government, due in part to the increasing efforts to undermine this bedrock protection for religious freedom. At the federal level, the Trump Administration has stepped up its attempts to enshrine one particular religious viewpoint into the law by finalizing regulations promoting denial of health care by religious health care providers and by proposing rules which would prioritize religious beliefs over civil rights protections.

At the same time, Christian nationalists have continued to push forward Project Blitz, a well-organized and well-funded campaign designed to undermine religious equality around the country by using legislation at the state level to promote a distorted vision of religious freedom.... At www.BlitzWatch.orghttps://www.blitzwatch.org/, we provide tools to oppose this secretive campaign, and we closely track these negative bills....

In this second edition of the State of the Secular States report, we expand the number of evaluated law and policy measures. For every state, as well as the District of Columbia and Puerto Rico, we have assessed over 40 statewide law and policy measures, both positive and negative, pertaining to religious equality and the separation of religion and government.

Tennessee Passes Law Protecting Faith-Based Adoption/ Foster Care Agencies

Yesterday, the Tennessee General Assembly gave final passage to HB0836 (full text) which bars denial of licensing or funding for faith-based child placement agencies. The law protects agencies that refuse to participate in placing a child for foster care or adoption in violation of the agency's written religious or moral convictions or policies. According to AP, Gov. Bill Lee's Communications Director says that the governor will sign the bill.

No Action Under Color of Law In Refusing To Rent Meeting Space To Speaker

In Pasadena Republican Club v. Western Justice Center, (CD CA, Dec. 30, 2019), a California federal district court dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC. In rejecting the Republican Club's civil rights claims, the court said in part:

The court will grant the Center’s and [its former executive director] Chirlin’s motion to dismiss because the complaint does not plausibly allege that the Center and Chirlin were acting under color of state law, as § 1983 requires, or that the City was involved in the alleged conspiracy, as § 1985(3) requires. Although a symbiotic relationship existed to some degree between the Center and the City, this case is distinguishable from Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), upon which the Club relies....

Space Force General Sworn In On Bible Blessed In Controversial Ceremony

As reported by NPR, yesterday, Air Force Gen. John "Jay" Raymond was sworn in as head of the recently created United States Space Force. The swearing-in was unusually controversial because Raymond was sworn in by Vice President Mike Pence using a Bible that was blessed for that purpose at a ceremony last Sunday at the Washington National Cathedral. (Washington Post). Maj. Gen. Steven A. Schaick, chief of chaplains for the U.S. Air Force, held the Bible as it was being blessed.

Yesterday, the Military Religious Freedom Foundation filed a strongly worded letter of complaint (full text) with Secretary of Defense Mark Esper, calling the National Cathedral ceremony "a horrid example of DoD-endorsed, fundamentalist Christian supremacy, ...exclusivity ... and triumphalism...." God and Country blog also has coverage of the controversy.

Attorney Has Standing To Challenge Judge's Prayer Practices

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 13, 2010), a Texas federal district court held that an attorney has standing to challenge a Texas Justice of the Peace's practice of having his court sessions opened with a prayer. The attorney, who is non-religious, has declined clients in order to avoid the judge's courtroom. The court said in part:

Here, Attorney Roe has offered testimony that he practices law in Montgomery County, Texas, has appeared in Judge Mack’s courtroom on several occasions, and that he avoids the courtroom because of Judge Mack’s practice. The harm alleged does not occur only because he enters the courtroom, but also because he must avoid the courtroom since the practice continues. Therefore, there is a substantive risk that were he to accept a case in Judge Mack’s court, he will be exposed to the prayer practice. Hence, Attorney Roe has satisfied the standing requirements.

Judge Mack also challenges the FFRF’s standing. Because the Court has determined that Attorney Roe has standing, the FFRF has associational standing.

Court Upholds Removal of Mosque's Finance Director

In Islamic Center of Passaic, Inc. v. Salahuddin, (NJ App.,Jan. 13, 2020), a New Jersey appellate court upheld the removal of defendant as finance director and member of the governing Shura Board of a New Jersey Islamic Center. Defendant was the wife of the founder and long-time spiritual leader of the Center. She clashed with the Center's new imam, refusing to allow him or the Shura Board to oversee her financial transactions on behalf of the organization.  The court said in part:

Here, the parties' claims arise from Islamic Center's constitution and bylaws and do not involve religious doctrine or practices. The trial court's findings of fact and conclusions of law concern whether Islamic Center complied with the procedures set forth in its organizational documents. Judge LaConte applied neutral principles of law to determine if Salahuddin was lawfully removed from office. Resolution of the parties' purely secular claims did not trespass on their religious freedoms.

With respect to Salahuddin's substantive claims, our scope of review of the judge's findings in this nonjury case is limited. We must defer to the judge's factual determinations, so long as they are supported by substantial credible evidence in the record....

[W]e are convinced there is substantial, credible evidence supporting Judge LaConte's findings of fact. We also agree with his legal conclusion Islamic Center complied with its constitution and bylaws when removing Salahuddin as finance director and Shura Board member.

Pennsylvania Archdiocese Can Be Sued In New Jersey Courts For Priest's Abuse In New Jersey

Doe I v. Archdiocese of Philadelphia, (NJ Super. Ct., Jan. 8, 2020) is a case in which plaintiff sued the Archdiocese of Philadelphia (PA) in a New Jersey court alleging that in the 1970's he was sexually abused by a now-deceased priest who was assigned to a Pennsylvania parish.  The abuse, however, took place in New Jersey.  The suit claims that the Archdiocese was negligent in hiring, supervising and investigating complaints against the priest. Apparently the suit was brought in New Jersey because the state had extended its statute of limitations in child sex abuse cases, while Pennsylvania's statute of limitations would bar the lawsuit.  The New Jersey trial court rejected the Archdiocese's claim that the suit should be dismissed either for lack of jurisdiction or on forum non conveniens grounds. As to jurisdiction, the court said in part:

Here, the alleged conduct by the defendants’ agent ..., while in New Jersey ... caused serious injury – in the form of sexual abuse – to plaintiff. Once the abuse began, Brugger purposely transported plaintiff from Pennsylvania to New Jersey on two additional occasions to continue the abuse....

[P]laintiff is now, and was at all relevant times, a resident of Pennsylvania. Thus, plaintiff’s choice of forum in New Jersey is granted substantially less deference.... Additionally, the majority of potential witnesses are domiciled in Pennsylvania.... The Archdiocese’s principal office is located in ... Pennsylvania.... [However] the Archdiocese previously owned two properties in ... Atlantic County, New Jersey – the very county where the instant litigation pends....The New Jersey property ownership took place during the times relevant to this litigation, although no alleged abuse by Brugger occurred at either location....

Under this set of facts, it would not be a violation of defendants’ due process rights to subject them to the long-arm jurisdiction of the Courts of New Jersey, given their contacts with this State.....

Denying defendants' forum non conveniens defense, the court said in part:

the alternate forum, Pennsylvania, is inadequate as there remains no remedy there for the plaintiff due to its strict statute of limitations.

Brazil's Supreme Court Head Allows Video Satirizing Jesus to Be Shown On Netflix

AFP and AP report that the President of Brazil's Supreme Federal Court last Thursday overturned a lower court's preliminary injunction against the Netflix film The First Temptation of Christ. The film depicts Jesus in a gay relationship. In his decision last Thursday,  Judge Antonio Dias Toffoli said in part:

One cannot suppose that a humorous satire has the ability to weaken the values of the Christian faith, whose existence is traced back more than two thousand years, and which is the belief of the majority of Brazilian citizens.

On Christmas Eve, the Brazilian headquarters of Porta dos Fundos -- the company that produced the film-- were pelted with Molotov cocktails.

British Criminal Prosecution of Husband For Coercive Behavior Used To Obtain Jewish Divorce ("Get")

Britain's Serious Crime Act 2015, Sec. 76, criminalizes controlling or coercive behaviour in an intimate or family relationship. Jewish Chronicle yesterday reported that for the first time the law has been used in a private prosecution brought by a wife to obtain a get (Jewish divorce document) from her husband. According to the paper:

The husband was due to face a crown court trial in July and, if convicted, could have been jailed for up to five years.

But she has discontinued the case after her ex-husband finally gave the get last month.

Challenge To Missouri Vaccination Exemption Form Is Dismissed

Reiterating his reasoning in a November preliminary injunction decision, a Missouri federal district judge in W.B. v. Crossroads Academy- Central Street, (WD MO, Jan. 10, 2020), dismissed a challenge 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. The court said in part:

I again conclude that if the State wishes to require vaccination of school children, there is an unbroken collection of cases confirming that it can do so. It can also advocate vaccination... Such advocacy (right or wrong) deals with public health issues. It is entirely secular in nature and motive, not “hostile to religion.” For instance, it would not be hostile to a religious objection to eating pork for an agency to certify that pork is safe to eat. The certification, like the DHSS language here, is religiously neutral.... There is also no case-law cited by plaintiffs tending to show that parents are subject to a compelled speech regime when the DHSS message appears at the top of the exemption form that they are required to fill out. The text is in no way ambiguous as to the source of the vaccination recommendation.

NPR reports on the decision.

Challenge To Form 990 Rules Is Dismissed

In Nonbelief Relief, Inc. v. Rettig, (D DC, Jan. 10, 2020), the D.C. federal district court dismissed a challenge by a non-profit organization to the exemption which excuses churches from filing an annual form 990 with the Internal Revenue Service.  NonBelief Relief was formed to assist atheists and other non-religious individuals.  It contributes funds to other charitable organizations. When NonBelief Relief failed to file its Form 990 for three years, its tax-exempt status was revoked.  It then sued seeking an injunction reinstating its status, and a declaratory judgment that the church exemption violates the Establishment Clause.  The court first held that the Anti-Injunction Act and the Declaratory Judgment Act bar granting relief:

... the award of an injunction or declaratory judgment on NonBelief Relief’s behalf would restrain the government’s collection of taxes against NonBelief and its donors.

The court went on to hold that once NonBelief Relief's tax exempt status was revoked, it lost standing to challenge the constitutionality of the church exemption from filing Form 990:

NonBelief Relief alleges that it suffered an injury when, as a 501(c)(3) tax-exempt organization, it was required to file a Form 990, while churches and other religious institutions were not. But assuming that is so, that injury is neither ongoing nor imminent, because NonBelief Relief is no longer a tax-exempt organization and has expressed no intent to reapply for that status..... [I]t is being treated the same as all other non-501(c)(3) organizations.

3rd Circuit: Deprivation of Chaplain Visits Did Not Substantially Burden Inmate's Free Exercise

In Quiero v. Ott, (3rd Cir., Jan. 9, 2020), the U.S. 3rd Circuit Court of Appeals held that a prisoner's free exercise of religion was not substantially burdened by being deprived of chaplain visits for ten days.

Recent Articles of Interest

From SSRN:

• Nathan S. Chapman, The Weight of Judgment, (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, John Witte, Jr. (London: Routledge), Forthcoming).
• David A. Skeel, Christianity and Bankruptcy, (Forthcoming In Christianity and Market Regulation (Daniel Crane & Samuel Gregg eds., Cambridge University Press 2020).
• Carlo Pedrioli, Is Incitement on the Internet Easier to Punish than Incitement on Television? A Case Study of the Koran-Burning of Florida Pastor Terry Jones, (Free Speech, Privacy and Media: Comparative Perspectives 49 (Russell L. Weaver, Mark D. Cole, Steven I. Friedland, Duncan Fairgrieve, András Koltay & Arnaud Raynouard eds., 2019)).
• Richard F. Duncan, Defense Against the Dark Arts: Justice Jackson, Justice Kennedy and the No-Compelled-Speech Doctrine, (December 19, 2019).
• David S. Cohen, The Promise and Peril of a Common Law Right to Abortion (Symposium Review of Anita Bernstein's The Common Law Inside the Female Body), (Northwestern University Law Review, Vol. 114, 2019).
• Meghan Boone, Reproductive Due Process, (The George Washington University Law Review, 2020 (Forthcoming)).
• Kathy L. Cerminara, Cruzan's Legacy in Autonomy, (SMU Law Review, Forthcoming).

From SSRN (Non-US Law):

• Iqra Saleem Khan, Consent in Marriage: A Radical Feminist Analysis of Pakistani Law, (William & Mary Journal of Women and the Law, Vol. 26, No. 3, 2020).
• Derek Ross & Deina Warren, Religious Equality: Restoring Section 15's Hollowed Ground, (91 Supreme Court Law Review (2d), 2019).
• Assaf Likhovski, A Colonial Legal Laboratory? Jurisprudential Innovation in the British Empire, (American Journal of Comparative Law (Forthcoming)).
• Sahar F. Aziz, 'Whosoever Sees An Evil' - Muslim Americans' Human Rights Advocacy, (Oxford Research Encyclopedia of Religion (Spring 2020)).
• P. Y. Lo, Hong Kong Courts and Same-Sex Marriage: Could Judicial Recognition of Spouse of Same-Sex Marriage Celebrated in Foreign Jurisdictions Be the Prelude for Judicial Recognition of Same-Sex Marriage Locally? (December 21, 2019).
• Alessio Romarri, Do Far-Right Mayors Increase the Probability of Hate Crimes? Evidence From Italy, (December 19, 2019).

UPDATE: Vol. 34, Issue 2 of the Journal of Law and Religion has been published online and is available without charge until Feb. 15.

11th Circuit OKs Disqualification of Juror Who Heard From A Higher Being

In United States v. Brown, (11th Cir., Jan. 9, 2020), the U.S. 11th Circuit Court of Appeals affirmed the trial court's dismissal of a juror in the fraud case of former Florida representative Corrine Brown. At issue was a statement made by one of the jurors during deliberations. He told the other jurors:

A Higher Being told me Corrine Brown was Not Guilty on all charges.

Judge Rosenbaum agreed with the district court that the juror was not capable of reaching a verdict based only on the evidence at trial. Judge Conway concurred specially

Judge Pryor filed a 62-page dissent, saying in part:

One persistent confusion that has plagued this appeal is the notion that a juror’s belief that he has received divine guidance reflects a form of improper outside influence.... This confusion cannot withstand scrutiny. Indeed, it betrays a failure to reflect on the nature of prayer. ...

Juror No. 13’s statement that God had communicated with him described an internal mental event, not an external instruction.

[Thanks to Doug Velardo for the lead.]

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.