11th Circuit: Pensacola Cross May Stay

In Kondrat'yev v. City of Pensacola, Florida, (11th Cir., Feb. 19, 2020), the U.S. 11th Circuit Court of Appeals, in a case with a complicated procedural history, held that a 34-foot cross in Pensacola's Bayview Park does not violate the Establishment Clause. Originally a 3-judge panel of the 11th Circuit, relying on past precedent, reluctantly ordered the cross removed. (See prior posting.)  The case was appealed to the Supreme Court which summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of its decision in American Legion v. American Humanist Assn. (See prior posting).  Now the 11th Circuit has decided that the cross may stay.  However, two of the judges filed a concurring opinion questioning the circuit's precedent on when plaintiffs have standing to bring an Establishment Clause challenge, saying in part:

we should—whether in this case or some other— convene en banc in order to bring our own Establishment Clause standing precedent into line with the Supreme Court’s and to clarify that  offen[se],”“affront[],” and “exclu[sion]” fail to satisfy Article III’s injury-in-fact requirement.

Pensacola News Journal reports on the decision.

3rd Circuit: Employee's Flu Vaccine Objections Were Not Religious

In Brown v. Children's Hospital of Philadelphia, (3rd Cir., Feb. 14, 2020), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a religious discrimination claim brought by a hospital employee who was fired for refusing to obtain a flu vaccination.  The court held that Naija Brown's objections were not "religious". She practiced an "African Holistic Heath" lifestyle. She claimed that while she did not have a pastor to validate her beliefs, she filed an "advance vaccine directive" prepared by Natural Solutions Foundation. The court concluded that her opposition to the vaccine were medical, not religious. PennLive reports on the decision.

Recent Articles of Interest

From SSRN:

• Richard Moon, The Law Society of BC v. Trinity Western University: Complicated Answers to a Simple Question, (July 30, 2019).
• Jean Stefancic, Law, Religion, and Racial Justice: A Comment on Derrick Bell's Last Article, (Case Western Reserve Law Review, Vol. 69, No. 2, 2018).
• Greg Walsh, Trinity Western University and the Future of Conservative Religious Education, (2020).
• Lloyd Hitoshi Mayer & Zachary B. Pohlman, What Is Caesar's, What Is God's: Fundamental Public Policy for Churches, (Notre Dame Legal Studies Paper No. 200211 (2020).
• Abhinav Chandrachud, The Many Meanings of Constitutional Morality, (January 18, 2020).
• Muhammad Sohail & Ataullah Khan Mahmood, Islamic Criminal Jurisprudence on the Offence of Trafficking in Persons: An Interpretation of Fasad fil Arz and Hadd Offence, (Pakistan Journal of Islamic Research (2019)).
• Ataullah Khan Mahmood & Ijaz Ali Chishti, Blasphemy Law and Its Interpretation a Pakistan’s Perspective, (Al Tafseer, Vol 34 (2019)).

Parishioners Sue Claiming Wrongful Removal of Priest

An unusual lawsuit was recently filed against the Archdiocese of Detroit by 20 parishioners of a Detroit Roman Catholic parish. The suit filed in a Michigan state trial court claims plaintiffs suffered extreme emotional distress when their priest was falsely accused of sexually abusing a minor and was removed . The complaint (full text) in Dux v. Bugarin, (MI Cir. Ct., filed 1/31/2020), alleges that the Archdiocese, afraid of being attacked by the press for failure to respond to sex abuse charges, twisted allegations and engaged in improper investigatory interrogations to fabricate a rape charge against Fr. Eduard Perrone.  It further alleges that Michael Bugarin, the priest charged with conducting the investigation of Fr. Perrone, is a conservative who was opposed to reforms in the Church advocated by plaintiffs and by Fr. Perrone. The complaint also claims that defendants fraudulently failed to disclose that funds solicited in their annual Catholic Services Appeal would be used for the investigation of Fr. Perrone. Detroit Free Press reports on the lawsuit.

British Court Refuses Financial Support Orders For Non-Complying Religious Marriage Ceremonies

Under Britain's Matrimonial Causes Act, a party to a "void marriage" may obtain a decree of nullity from a family court which entitles the party, among other things, to seek an order for financial support.  In Attorney General v. Akhter, (EWCA, Feb. 14, 2020), Britain's Court of Appeal held that a party to an Islamic marriage ceremony held in a restaurant rather than a building registered as a marriage site and without other required formalities may not obtain a decree of nullity because the original ceremony not was not sufficient to even create a "void marriage."  The husband and wife had planned to follow the religious ceremony with a civil ceremony,  but never followed through on those plans. They remained together for 18 years and had four children before the wife sued for divorce. The court also posted a Media Summary of the decision.

Reporting on the lawsuit, International News quotes a critic of the decision

Today’s judgment will force Muslim and other women to turn to Sharia ‘courts’ that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system.

Air Force Changes Rules To Accommodate Religious Headgear and Beards

As reported by the Air Force Times, the Air Force earlier this month (Feb. 7) amended its Dress and Personal Appearance rules to allow airmen to request a waiver to permit wearing of conservative religious apparel, (Full text of amended Air Force Instruction.) The amended rules specifically address the wearing of hijabs, beards, and turbans or under-turbans/ patkas with uncut beard and uncut hair. The Army issued similar rules in 2017. (See prior posting.) [Thanks to Scott Mange for the lead.]

5th Circuit Dismisses Street Preacher's Suit Over Summons

In Roy v. City of Monroe, (5th Cir., Feb. 13, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit by a street preacher who was issued a summons, but then acquitted, of disturbing the peace. He then sued the police and the city of Monroe, Louisiana for violation of his free speech and free exercise as well as for other violations.  The 5th Circuit summarized it conclusions:

[T]he city of Monroe’s “disturbing the peace” ordinance is not unconstitutionally vague; that, because Sergeant Booth had probable cause to issue a summons under the ordinance, he was entitled to qualified immunity from Roy’s First Amendment retaliation claim; and that, in the light of these holdings, Roy cannot prevail on his claims under the Fourth Amendment and Due Process Clause.

AP reports on the decision.

International Religious Freedom Alliance Founded

Last week, Secretary of State Mike Pompeo announced that 26 nations have joined the United States to create the International Religious Freedom Alliance.  The nations pledged to uphold a Declaration of Principles committing them to take both proactive and reactive actions to uphold freedom of belief, thought, conscience and religion as protected by international law and United Nations International Covenant on Civil and Political Rights. [Thanks to Law & Religion UK for the lead.]

Prof Loses Fight Against School Rules On Transgender Discrimination

In Meriwether v. Trustees of Shawnee State University, (SD OH, Feb. 12, 2020), an Ohio federal district court judge adopted a magistrate's recommendation and dismissed a lawsuit by a college professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The philosophy professor refused to address a transgender student using the student's preferred gender identity title and pronouns. Instead he used only the student's last name. The court said in part:

[The faculty member's] speech-- the manner by which he addressed a transgender student-- was not protected by the First Amendment.  Further, he did not plead facts sufficient to state a claim for a violation of his right to free exercise of religion ... or for a violation of his rights to due process or equal protection.

Metro Weekly reports on the decision.

Suit Seeks Data On Anti-Semitic Hate Crimes In New York

A New York state Freedom of Information Law lawsuit was filed last week by The Forward newspaper seeking information on the rise in anti-Semitic hate crimes in New York City.  The complaint (full text) in The Forward Association, Inc. v. New York City Police Department asks for an order granting the paper immediate access to the requested records. The Forward reported on its lawsuit.

9th Circuit OK's School's Policy On Transgender Students

In Parents for Privacy v. Barr, (9th Cir., Feb. 12, 2020) the U.S. 9th Circuit Court of Appeals upheld an Oregon school district's policy of allowing transgender students to use school bathrooms, locker rooms and showers that correspond to their gender identity. The court issued a summary along with its full opinion, saying in part:

 [T]here is no Fourteenth Amendment fundamental privacy right to avoid all risk of intimate exposure to or by a transgender person who was assigned the opposite biological sex at birth.....  [T]he Student Safety Plan provided alternative options and privacy protections to those who did not want to share facilities with a transgender student, even though those alternative options admittedly appeared inferior and less convenient....

... [T]the Fourteenth Amendment does not provide a fundamental parental right to determine the bathroom policies of the public schools to which parents may send their children, either independent of the parental right to direct the upbringing and education of their children or encompassed by it.

Texas Sues California In Supreme Court Over Travel Ban To States Allowing LGBTQ Discrimination

This week, the state of Texas filed an original suit in the U.S. Supreme Court against the state of California challenging California's ban on the state paying for travel by its employees to other states that allow discrimination against LGBTQ individuals or families. The complaint (full text of complaint and brief in support) in State  of Texas v. State of California, (US Sup. Ct., filed/2/10/2020) reads in part:

California has enacted and is enforcing economic sanctions against Texas, Texas citizens,and Texas businesses. California has targeted Texas and its residents because To Texas protects the religious freedom of faith-based child welfare providers within its borders....

California’s sanctions against Texas and Texans are born of religious animus and violate the Constitution’s Privileges and Immunities Clause, U.S. Const. art. IV, § 2, cl. 1; Interstate Commerce Clause, id. art. I, § 8, cl. 3; and guarantee of Equal Protection, id. amend. XIV, § 1.

The complaint and brief in support of the state's motion for leave to file a bill of complaint which is attached to the complaint seeks an order forcing California to take down its travel ban or remove Texas from it. Texas Attorney General's office has issued a press release announcing the filing of the suit.

Free Exercise Claim As To Marijuana Use Is Rejected

In State of Ohio v. Cook, (OH App., Feb. 10, 2020), an Ohio state appellate court rejected a defendant's claim that his use of marijuana-- which he claimed was part of his Shamanism religion-- violated his free exercise rights. The court said in part:

Even assuming that Cook’s “religious” beliefs are sincerely held, and even assuming that the law restricts his practice, there is certainly a compelling state interest in regulating the use of Schedule I controlled substances. Moreover, the drug laws are facially religion-neutral, and do not target any specific sect of any religion. Thus we find that they are narrowly tailored.... For these reasons we cannot find that the trial court erred in overruling Cook’s suppression motions. 

Zoning Requirement Violates RLUIPA

In Hunt Valley Baptist Church, Inc. v. Baltimore County, Maryland, (D MD, Feb. 10, 2020), a Maryland federal district court rejected federalism and Establishment Clause challenges to the constitutionality of RLUIPA against federalism and Establishment Clause challenges.The court went on to hold that the county's zoning ordinances that require a special exception process for churches to build in a conservation zone, but does not require this for schools, violate RLUIPA's equal terms provisions.

Recent Articles of Interest

From SSRN:

• Scott D. Gerber, Law and Religion in Plymouth Colony, (8 British Journal of American Legal Studies 167 (2019)).
• Kyriake Topidi, Customary Law, Religion and Legal Pluralism in Israel: Islamic Law and Shari'a Courts in Constant Motion, (Revista General de Derecho Público Comparado 26 (2019)).
• Nicholas Aroney, Christianity, Sovereignty and Global Law, (January 14, 2020).
• Hatim Hussain & Prateek Srivastava, Cryonics in India: Fulfilling the Ardent 'Legal' Desire to Live, (Book on Red Biotechnology (2018), Astral International Publishers).
• Shrutanjaya Bhardwaj, Individual Religious Freedom is Subject to Other Fundamental Rights, ((2019) 7 SCC Part-4 J-29).
• Collton Fehr, Re-Thinking the Process for Administering Oaths and Affirmations, (Dalhousie Law Journal, Forthcoming).
• Richard F. Duncan, Seeing the No-Compelled-Speech Doctrine Clearly Through the Lens of Telescope Media, (Nebraska Law Review, Forthcoming).
• Jay Augustine, And When Does the Black Church Get Political?: Responding in the Era of Trump and Making the Black Church Great Again (January 1, 2020). 17 Hastings Race & Poverty Law Journal 87 (2020).

6th Circuit: Non-Recognition Substantially Burdened Christian Identity Inmates

In Fox v. Washington, (6th Cir., Feb, 6, 2020), the U.S. 6th Circuit Court of Appeals held that the trial court had misapplied RLUIPA in upholding Michigan's refusal to recognize prison inmates' Christian Identity, white separatist religion. The prison system denied Christian Identity adherents the right to group worship and full immersion baptism. The court said in part:

... [P]laintiffs have met their burden ,,, to show that the Department has imposed a substantial burden on their religious exercise with respect to group worship for the Sabbath and holidays....

At step three of RLUIPA, the burden shifts to the Department to make two showings. First, it must prove that the imposition of the substantial burden on plaintiffs’ religious exercise was “in  furtherance of a compelling governmental interest.” ... Second, the Department must establish that it used “the least restrictive means of furthering that compelling governmental interest.”... The district court made no such rulings, and the record is not well developed on these issues. “As ‘a court of review, not of first view,’ we will remand the case to the district court to resolve the point in the first instance.”

"Neutral Principles" Approach Controls Issue of Joining Parent Church

In Korean New Life Methodist Church v. Korean Methodist Church of the Americas,(CO App., Feb. 6, 2020), a Colorado state appellate court held that the neutral principles of law approach should be used in deciding a dispute over whether a local church agreed to be under the authority of a national denomination.  It agreed that the trial court, using that approach, correctly determined that the local church never gave up control to submit to the authority of the parent church body, saying in part:

[W]e conclude that the question of submission does not involve a “religious dispute” covering ecclesiastical matters or involving church doctrine.... Rather, it involves an inquiry into the local church’s organizational intent as evidenced by church documents, testimony, and conduct.

Court Upholds Denial of Invocation Slot For Satanic Temple

In Satanic Temple v. City of Scottsdale, (D AZ, Feb. 6, 2020), an Arizona federal district court held that the Satanic Temple failed to prove by a preponderance of the evidence that the denial of their request to deliver a non-theistic invocation at a City Council meeting was because of their religious beliefs. The court rejected defendants' claims that the beliefs of the Satanic Temple do not constitute a religion. However the court credited the testimony of the Acting City Manager that he based his decision on a long-standing unwritten policy that only organizations that had substantial ties to the city could deliver invocations. This decision followed substantial public opposition to the Satanic Temple's appearance, including the orchestration by a church of 15,000 e-mails in opposition. The blog For Infernal Use Only reports on the decision.

UPDATE: In an April 9 opinion (full text), the court, with one exception, refused to amend its findings of fact or to amend its judgment.

Fruit Company Settles Suit Over Refusal To Accommodate Sevent Day Adventist

The EEOC announced yesterday that the North Carolina-based Cottle Strawberry Nursery has settled a religious discrimination lawsuit filed against it by the agency. The company was charged with firing a Seventh Day Adventist because she refused to work on Saturdays.  In the settlement it agreed to pay $12,500 in damages and develop a religious accommodation policy.

Trump, Pence Speak At National Prayer Breakfast

Both Vice President Pence and President Trump spoke at the National Prayer Breakfast in Washington, D.C. yesterday. Pence (full text of remarks) said in part:

As the President has said many times, in his words, “We are a nation of faith.”  And I can assure you that this President, this Vice President, and our entire administration believe in prayer and we rely on the prayers of the American people every day.

In fact, President Trump has made it a practice of opening every Cabinet meeting in prayer.

President Trump spoke later in the morning (full text of remarks). This passage has probably captured the most press attention:

Weeks ago, and again yesterday, courageous Republican politicians and leaders had the wisdom, the fortitude, and strength to do what everyone knows was right.  I don’t like people who use their faith as justification for doing what they know is wrong.  Nor do I like people who say, “I pray for you,” when they know that that’s not so.

Washington Post reports on the Prayer Breakfast.

VP Pence Promotes New School Choice Scholarship Proposal

Vice President Mike Pence yesterday delivered a 20-minute address on School Choice at Saint Francis DeSales School in Philadelphia, PA. (Full text of remarks.) He particularly focused on the proposal for Education Freedom Scholarships that President Trump promoted in his State of the Union address on Tuesday.

German Court Refuses To Order Removal of Anti-Semitic Church Carving

AFP reports that an intermediate appellate court in the German state of Saxony-Anhalt has refused to order the removal of a 13th century anti-Semitic bas relief on a church in the town of Wittenberg. The court concluded that the carving, known as the Judensau (Jews' sow), did not harm Jews' reputation because it was embedded in a broader memorial and was accompanied by a sign put up in 1988 explaining it in context.

Court Dismisses Challenge To City's Refusal To Fly Christian Flag

In Shurtleff v. City of Boston, (D MA, Feb. 4. 2020), a Massachusetts federal district court dismissed a suit challenging refusal by the city of Boston to fly a Christian themed flag on a flag pole outside city hall for a Constitution Day and Citizenship Day event sponsored by plaintiffs. The court held that the city's flag display constituted government speech that is not subject to the strictures of the First Amendment.  It also held that the city's actions did not violate the Establishment Clause or Equal Protection clause. The 1st Circuit Court of Appeals last June affirmed the denial of a preliminary injunction in the case. (Full text of 1st Circuit opinion).

Noise Restrictions On Sidewalk Abortion Counselors Upheld

In Henderson v. McMurray, (ND AL, Feb. 4, 2020), an Alabama federal district court upheld a Huntsville, Alabama special events ordinance and the provision in a permit allowing plaintiffs, pro-life sidewalk abortion counselors, to use amplification only if they cannot be heard in adjacent buildings. The court concluded that the challenged restrictions do not violate plaintiffs' rights to free speech or free exercise of religion.

Court Accepts RFRA Defenses of Volunteers Feeding Migrants

In United States v. Hoffman, (D AZ, Feb. 3, 2020), an Arizona federal district court reversed the criminal convictions of four volunteers aiding migrants through the faith-based organization No More Deaths/No Más Muertes. A federal magistrate judge had fined and imposed probation on the defendants for violating federal regulations barring entry into a national wildlife refuge without a permit and barring abandoning property there. Summarizing its holding, the court said in part:

Defendants ... appeal from convictions for violations of the regulations governing the Cabeza Prieta National Wildlife Refuge.... The violations were committed in the course of leaving supplies of food and water in an area of desert wilderness where people frequently die of dehydration and exposure. Defendants, who are volunteers with a charitable organization affiliated with the Unitarian Universalist Church, admit the factual allegations made by the Government.... Defendants argue that those actions, taken with the avowed goal of mitigating death and suffering, were sincere exercises of religion and that their prosecution is barred by the Religious Freedom Restoration Act.... The Court finds that Defendants demonstrated that their prosecution for this conduct substantially burdens their exercise of sincerely held religious beliefs, and that the Government failed to demonstrate that prosecuting Defendants is the least restrictive means of furthering any compelling governmental interest.

Law, Rights & Religion Project issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Phil Lord, What Is the True Purpose of Quebec's Bill 21?, ([2020] Directions, (Forthcoming)).
• Manal Cheema, Fill in the Blank: Compelling Student Speech on Religion, (105 Va. L. Rev. Online 175 (2019)).
• Fajri Muhammadin & Mohd Hisham Mohd Kamal, The Western Universalism v. Cultural Relativism Debate on Human Rights and Islam - An ‘Aqidah-Based Approach, (Afkar: Jurnal of Aqidah and Islamic Thought, Vol. 21 (2), 2019, pp.175-216).
• Michael McNally, Native American Religious Freedom as a Collective Right, (2019 BYU L. Rev. 205 (2019)).
• Farrah Ahmed, Arbitrariness, Subordination and Unequal Citizenship, (January 7, 2020).
• Abhinav Chandrachud, Secularism and the Citizenship Amendment Act, (January 4, 2020).
• Samuel D. Brunson, 'I’d Gladly Pay You Tuesday for a [Tax Deduction] Today': Donor-Advised Funds and the Deferral of Charity, (Wake Forest Law Review, Forthcoming).

Orthodox Jewish Family Ejected From Flight Sue American Airlines

An Orthodox Jewish family filed suit in a Texas federal district court last week charging American Airlines with religious, racial and national origin discrimination, as well as defamation, negligence and intentional infliction of emotional distress. The suit comes after the husband, wife and their 19-month old daughter were removed from an American Airlines flight. The complaint (full text) in Adler v. American Airlines, Inc., (SD TX, filed 1/28/2020) alleges that the Adlers were told by an American Airlines agent to deplane. Once off the plane, they were told that they had been ejected on instructions from the pilot because of extremely offensive body odor. In exchanges that followed, the Adlers rejected the claim, but the airline's agent allegedly told the Adlers "that he knew that Orthodox Jews take baths once a week." The complaint goes on to allege that an online search for "body odor" turns up the Adlers' name. Courthouse News Service and Detroit Free Press report on the lawsuit.

Trump Extends Some Travel Ban Restrictions To Six More Countries

In an exceptionally long Presidential Proclamation (full text), President Trump on Friday extended tailored restrictions under his controversial travel ban to immigrants (but not temporary visitors) from six additional countries. As explained by a News Release from the Department of Homeland Security:

.... For four countries – Burma, Eritrea, Kyrgyzstan, and Nigeria – the President has imposed travel restrictions on immigrant visas.

The reason is straightforward – individuals who have entered the U.S. on immigrant visas are challenging to remove even if, after admission into the U.S., the individual is linked to disqualifying information such as terrorist connections, criminal ties, or misrepresented information. 

 And because each of these countries have deficiencies in sharing terrorist, criminal or identity information, it is likely that information reflecting that a visa applicant is a threat may not be available at the time the visa or entry is approved. This is unacceptable.

 Two countries – Sudan and Tanzania – performed marginally better and the President decided to impose travel restrictions on Diversity Visas.  This is a less severe sanction compared to the general restriction on immigrant visas, given the significantly fewer number of aliens affected....

... [T]his Proclamation only restricts entry on certain categories of immigrant visas. Family members can still visit their loved ones, businesses can still employ qualified candidates, and other visits can take place on a temporary basis with a non-immigrant visa.

DHS also issued this shorter news release. Vox has more on the President's action.

Recent Hearings By House Foreign Affairs Committee

The House Foreign Affairs Committee has held two hearings of interest in recent days:

• Ending Global Religious Persecution (Jan. 28, 2020) Video of full hearing. Further coverage at Blog from the Capital.
  
• Resisting Anti-Semitism and Xenophobia in Europe (Jan. 29, 2020). Video of full hearing.

Church Leaders Sentenced To Prison In Scheme To Siphon Off Church Funds

The U.S. Attorney's Office for the District of New Jersey announced this week:

The leader and the main treasurer of the Israelite Church of God in Jesus Christ were sentenced to federal prison today for their respective roles in a scheme in which both men caused the church to pay millions of dollars in personal expenses for the leader that the leader then omitted from his personal tax returns.

The two men had previously pleaded guilty to one count of conspiring to defraud the United States of at least $250,000 in taxes.  Jermaine Grant, the church leader, was sentenced to 18 months in prison. The treasurer, Lincoln Warrington, was sentenced to 12 months and one day.

Court Denies Preliminary Injunction To Pastor Targeted For Ministering To Migrants

In Dousa v. U.S. Department of Homeland Security, (SD CA, Jan. 28, 2020), a California federal district court refused to grant a preliminary injunction to a Christian pastor who claimed that her right to freely exercise her religion was substantially burdened by federal government's surveillance, brief detention and harassment of her. She contended that the government's actions amounted to retaliation for her activities ministering to asylum seekers and migrant on the Mexican side of the U.S. southern border. Denying a preliminary injunction, the court said in part:

Dousa has not shown at this stage that the Government has substantially burdened her Free Exercise rights. The harms she alleges—a “canceled trip to Mexico, refrain[ing] from blessing migrant marriages, hav[ing] her pastoral counseling chilled,” ... are subjective, and the Ninth Circuit is clear that “a subjective chilling effect on free exercise rights is not sufficient to constitute a substantial burden.”

However the court refused to completely dismiss her allegations of 1st Amendment and RFRA violations, saying in part:

It bears repeating that a preliminary injunction is an “extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to relief.” ... The conclusion here that Dousa is not entitled to an injunction is simply a finding that she has not made that “clear showing” at this stage; it is not a finding that she cannot make that showing down the line, perhaps with the advantage of additional discovery.

Courthouse News Service reports on the decision.

4th Circuit Hears Arguments In Challenge To Trump's Travel Ban

The U.S. 4th Circuit Court of Appeals yesterday heard oral arguments (audio of full oral arguments) in International Refugee Assistance Project v. Trump.  In the case, a Maryland federal district court refused to dismiss Establishment Clause, due process and equal protection challenges to President Trump's third travel ban Proclamation. (See prior posting.) The case had been remanded by the U.S. Supreme Court in light of its rejection of an Establishment Clause challenge in a parallel case. Brown County Democrat reports on the oral arguments.

DC Circuit Rejects NLRB's Test For Jurisdiction Over Adjunct Faculty At Religiously-Affiliated Colleges

In Duquesne University of the Holy Spirit v. NLRB, (DC Cir., Jan. 28, 2020), the Court of Appeals for the DC Circuit, in a 2-1 decision, held that the National Labor Relations Board lacks jurisdiction over adjunct faculty at Duquesne University.  In doing so, the majority rejected the test developed by the National Labor Relations Board in its 2014 Pacific Lutheran decision. The NLRB took the position that it lacks jurisdiction over adjunct faculty at non-profit religiously-affiliated colleges only if both the school holds itself out to the public as a religious institution and the particular faculty group petitioning performs a specific religious role. The majority held that the role played by the particular faculty may not be considered:

Pacific Lutheran impermissibly intrudes into religious matters. The Board suggests that it can avoid constitutional problems by considering only whether a religious school “holds out” faculty members as playing a specific religious role, ... but such an inquiry would still require the Board to define what counts as a “religious role” or a “religious function.” ... Defining which roles qualify would be far outside the competence of Board members and judges.

Judge Pillard dissenting said in part:

The Board’s approach has several advantages.... It recognizes the significant structural and functional differences between adjuncts and full faculty at many schools, as well as the heterogeneity of schools’ religious exercise. It thereby not only respects precedent and protects religious exercise, but also affords schools leeway to delineate for themselves the scope of the academic teaching corps that embodies their religious mission. In contrast to the automatic presumption of religiosity that the court adopts today, the Board’s approach adds a measure of tailoring at the exemption’s outer edge, eliminating needless sacrifice of adjuncts’ NLRA rights but extending the exemption to them where called for by a religious role the school itself identifies.

Pittsburgh Post-Gazette reports on the decision.

Trump Releases Middle East Peace Plan Including Plans For Jerusalem and Holy Sites

President Trump today released his his 181-page Israeli- Palestinian peace plan titled Peace To Prosperity. (Full text of plan.) The briefer Fact Sheet released by the White House summarizes the plan's provisions on Holy Sites in Jerusalem:

Israel will continue to safeguard Jerusalem’s Holy Sites and will guarantee freedom of worship for Jews, Christians, Muslims, and people of all faiths.

• The status quo at the Temple Mount/Haram al-Sharif will be preserved.

• The special and historic role of the King of Jordan with regard to the Muslim Holy Shrines in Jerusalem will be preserved.

• All Muslims are welcome to peacefully visit al-Aqsa Mosque.

The full plan includes this language as part of its description of arrangements for Jerusalem and its holy sites:

Unlike many previous powers that had ruled Jerusalem, and had destroyed the holy sites of other faiths, the State of Israel is to be commended for safeguarding the religious sites of all and maintaining a religious status quo.

Given this commendable record for more than half a century, as well as the extreme sensitivity regarding some of Jerusalem’s holy sites, we believe that this practice should remain, and that all of Jerusalem’s holy sites should be subject to the same governance regimes that exist today. In particular the status quo at the Temple Mount/Haram al-Sharif should continue uninterrupted.

Jerusalem’s holy sites should remain open and available for peaceful worshippers and tourists of all faiths. People of every faith should be permitted to pray on the Temple Mount/Haram al-Sharif, in a manner that is fully respectful to their religion, taking into account the times of each religion’s prayers and holidays, as well as other religious factors.....

... We believe that returning to a divided Jerusalem, and in particular having two separate security forces in one of the most sensitive areas on earth, would be a grave mistake.

While a physical division of the city must be avoided, a security barrier currently exists that does not follow the municipal boundary and that already separates Arab neighborhoods (i.e., Kafr Aqab, and the eastern part of Shuafat) in Jerusalem from the rest of the neighborhoods in the city.

This physical barrier should remain in place and should serve as a border between the capitals of the two parties.

Jerusalem will remain the sovereign capital of the State of Israel, and it should remain an undivided city. The sovereign capital of the State of Palestine should be in the section of East Jerusalem located in all areas east and north of the existing security barrier, including Kafr Aqab, the eastern part of Shuafat and Abu Dis, and could be named Al Quds or another name as determined by the State of Palestine. 

Presidential Message On International Holocaust Remembrance Day

Yesterday the White House issued a Presidential Message on International Holocaust Remembrance Day, 2020. (Full text). It says in part:

This year’s annual observance of International Holocaust Remembrance Day is especially moving as we commemorate the 75th anniversary of the liberation of Auschwitz....

Unfortunately, there are still Jewish men, women, and children who face persecution and discrimination today.  To fight the rise of anti-Semitism in the United States, I issued an Executive Order in December of 2019 that will help combat racist, anti-Semitic discrimination.  Anti-Semitism will never be tolerated, and this action bolsters my Administration’s efforts to create a culture of respect that deeply values the dignity in every human life.

Jewish Day School May Move Ahead With Some Claims In Dispute With New York Village

A press release from First Liberty describes the claims that gave rise to an opinion by a New York federal district court last week:

The lawsuit, filed in November 2018, alleges that government officials in the Village of Airmont, New York and the Suffern Central School District engaged in a deliberate effort to dissuade Orthodox Jewish residents from staying in or moving to the Village of Airmont. Central UTA owns 21 acres of property within the Village of Airmont that for nearly 20 years served as both a children’s school and day camp. The Village granted multiple approvals for the private, non-Orthodox school to operate. However, since Central UTA purchased the property in 2016 and advised the Village of its plans to build new buildings, Village officials have repeatedly used discriminatory zoning tactics to prevent Central UTA from operating.

In a similar effort, the local school district, Suffern Central, denied Central UTA children transportation and special education services even though it provided these same services to the previous school.

In Central UTA of Monsey v. Village of Airmont, New York, (SD NY, Jan. 23, 2020), the court held that claims growing out of the attempt to obtain approval for building two new school buildings and renovating an existing building should be dismissed for lack of ripeness. However the court allowed plaintiffs to move ahead with their RLUIPA, 1st Amendment and 14th Amendment claims growing out of a Notice of Violation issued as to the operation of a school for 200 to 300 students in an existing building and the failure to provide transportation and special needs services. The Notice of Violation placed the school at risk for over $2 million in fines.

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....