Suit Challenges Colorado Stay-At-Home Order Partly On Free Exercise Grounds

A suit was filed on Monday by a pro se plaintiff in a Colorado federal district court seeking a preliminary injunction to bar enforcement of the COVID-19 stay-at-home orders issued by the state and local officials.  The complaint (full text) in Lawrence v. State of Colorado, (D CO, filed 3/30/2020) alleges in part:

As a result of the Orders listed above that restrict the gathering of more than ten people at a time, the plaintiff's parish has ceased conducting weekly Mass, has ceased offering the Eucharist, and has ceased hearing confessions. The defendants' conduct has impaired the plaintiff's ability to freely exercise his religious faith, in violation of the First Amendment.

Colorado Politics reports on the lawsuit.

7th Circuit Upholds Prison Rule Limiting Off-Bunk Prayers

In Larry v. Goldsmith, (7th Cir., March 30, 2020), the U.S. 7th Circuit Court of Appeals upheld as reasonably related to a legitimate penological interest a prison rule that prohibits inmates from praying off their bunks after 9:00 pm. The policy was challenged by a Muslim inmate who was disciplined for praying next to his bunk at a prohibited time.

Pastor Arrested For Holding Church Services In Violation of Health Department Order

AP reports that in Hernando County,  Florida, police arrested Tampa (FL) megachurch pastor Rodney Howard-Browne for holding two Sunday church services with hundreds of people in violation of a county emergency health department order to limit all gatherings to less than ten people. The pastor turned himself into authorities and he was released on $500 bond. The church claims it enforced the 6-foot distancing rule between families and took other precautions as well. Howard-Browne has said the church is an essential services and suggested he would fight the issue in court. [Thanks to Tom Rutledge for the lead.]

8th Circuit: Catholic Hospital Retirement Plan Is Exempt From ERISA

In Sanzone v. Mercy Health, (8th Cir., March 27, 2020), the U.S. 8th Circuit Court of Appeals held that the retirement plan of a Catholic-affiliated hospital qualifies for the "church plan" exemption under ERISA. The court however remanded the case for consideration of whether deprivation of ERISA protections created sufficient injury to confer standing to challenge the church plan exemption as an Establishment Clause violation.  Reuters reports on the decision.

Suits In NY and Texas Say Stay-At-Home Orders Infringe Religious Rights

New York Post reports that a lawsuit was filed last Friday in a New York federal district court against the state of New York and Gov. Andrew Cuomo challenging the constitutionality of Cuomo's stay-at-home order imposed to limit the spread of COVID-19. Among other things, plaintiff, a Brooklyn lawyer, alleges that the ban violates his rights to free speech and to observe his Jewish faith.

A mandamus action filed in the Texas Supreme Court similarly challenges a Harris County, Texas stay-at-home order. Houston Chronicle reports that the challenge filed by three pastors and a conservative Republican activist claims that the order violates the 1st Amendment by ordering the closure of churches and also violates the Constitution by failing to classify gun shops as essential businesses.

UPDATE: Here is the full text of the complaint in the Texas case, In re Hotze, (TX Sup. Ct., filed 3/30/2020).

UPDATE 2: Front Porch News reports on an April 21 updated version of Texas' “Guidance to Houses of Worship During the COVID-19 Crisis.”

Recent Articles of Interest

From SSRN:

• Ibrahim Adewumi Adeyemi, Comparative Analysis of Capital Punishment in the Hadd Offence of Riddah Vis-a-Vis the Offence of Espionage, (August 15, 2018).
• Loren F. Selznick, Mangers and Turbans: Nonverbal Religious Expression in a Diverse Workplace, (University of Baltimore Law Review, Vol. 49, No. 2, 2020).
• Orazio Condorelli & Rafael Domingo Osle, Introduction to Law and the Christian Tradition in Italy: The Legacy of the Great Jurists, (January 31, 2020).
• Md Tasnimul Hassan, Gujarat under Narendra Modi: Sangh Terror, Failure of Governance and Complicity within the Judicial System, (January 21, 2020).
• Md Tasnimul Hassan, Islamic Jurisprudence: Apropos to the Indian Legal System, (International Journal of Socio-Legal Research, Volume 6-Issue 1, Page 27-40, 2019).
• Larissa M. Katz, Conscience With a Filter, (Jerusalem Review of Legal Studies, 2020).

From SmartCILP:

• Rabea Benhalim, Religious Courts in Secular Jurisdictions: How Jewish and Islamic Courts Adapt To Societal and Legal Norms, 84 Brooklyn Law Review 745-800 (2019).
• Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation." Introduction by Howard M. Wasserman. Articles by Ronald K. L. Collins, Erica Goldberg, Abner S. Greene, Paul Horwitz, Leslie Kendrick, Genevieve Lakier, Aaron Saiger, Steven D. Smith; keynote address by John Q. Barrett. 13 Florida International University Law Review 585-873 (2019).

Catholic Hospital Is Within Title VII Exemption

In Boydston v. Mercy Hospital Ardmore, Inc., (WD OK, March 25, 2020), an Oklahoma federal district court held that a Catholic hospital and its parent bodies are religious entities that are exempt under (42 USC §2000e-1(a)) from the religious discrimination prohibitions of Title VII.  Based on that conclusion, the court dismissed the Title VII (and parallel state anti-discrimination law) claims of religious discrimination brought by a power plant technician at the hospital.

10th Circuit Reverses Dismissal Of Inmate's 1st Amendment Claims

In Khan v. Barela, (10th Cir., March 26, 2020), the U.S. 10th Circuit Court of Appeals in a 35-page opinion reversed a New Mexico federal district court's sua sponte dismissal of a federal pre-trial detainee's pro se 1st and 4th Amendment claims. Erik Khan was a pre-trial detainee for some four years. His 1st Amendment free speech claims involved a prohibition on his reading hard-cover books, newspaper and newspaper clippings. His 1st Amendment free-exercise claims revolved around prison chaplains' refusal to allow him a clock, prayer schedule, and Muslim calendar to track the timing of Ramadan, and his inability to obtain Ramadan-compliant meals.

Student Who Objects To Reciting Pledge May Move Ahead On Compelled Speech Claim Against Teacher

In Oliver v. Klein Independent School District, (SD TX, March 25, 2020), a Texas federal district court, while dismissing a number of plaintiff's claims, allowed a high school student to move ahead with her 1st Amendment compelled speech claim against her sociology teacher Benji Arnold.  Plaintiff Mari Oliver  objected to reciting the Pledge of Allegiance. As described by the court:

Arnold played the Bruce Springsteen song “Born in the U.S.A.,” and told the class to write down how the song made them feel.... He then gave the students a timed assignment to transcribe the Pledge of Allegiance, stating that, because the assignment was written, the students were not actually pledging allegiance to the United States.... Oliver refused, drawing a “squiggly line” instead.

The court held:

The parties disagree about whether Arnold was hostile to those who abstain from the pledge and refuse to assimilate into American society. The complaint alleges that Arnold compared people who abstain from the pledge to Soviet communists, supporters of Sharia, and people who condone pedophilia.... The parties’ interpretations of Arnold’s remarks inform their arguments about whether the pledge assignment had an impermissible patriotic intent. Oliver and Arnold also dispute whether Oliver’s refusal to write the pledge was protected speech or a mere refusal to do coursework.... Granting summary judgment for Arnold on the compelled-speech claim is clearly inappropriate. Granting partial summary judgment for the plaintiffs is a closer question, but the full record at trial will provide a more secure basis for an accurate ruling.

Cert. Filed In Pittsburgh Abortion Clinic Buffer Zone Ordinance

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Bruni v. City of Pittsburgh. In the case, the U.S. 3rd Circuit Court of Appeals upheld a Pittsburgh ordinance that creates a 15-foot buffer zone outside any health care facility, including a Planned Parenthood clinic. In Bruni v. City of Pittsburgh, (3d Cir., Feb. 6, 2019), the court upheld the ordinance by interpreting it to not cover sidewalk anti-abortion counseling. ADF issued a press release announcing yesterday's filing of the petition for review.

Sioux Tribes Get Delay In Dakota Access Pipeline

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, March 25, 2020), the D.C. federal district court held that the Army Corps of Engineers needs to prepare an environmental impact statement on the proposed Dakota Access Pipeline route under Lake Oahe in North and South Dakota.  Sioux tribes rely on Lake Oahe water for, among other things, sacred religious and medicinal practices. Inside Climate News reports on the decision.

Canadian Province's School Funding of Catholic School Upheld

In Government of Saskatchewan v. Good Spirit School Division No. 204, (SK Ct. App., March 25, 2020), the Saskatchewan (Canada) Court of Appeal in a 133-page opinion, upheld the province's funding for non-Catholic students enrolled in a government-funded Catholic school. Global News reports on the decision.

Navy Liberalizes Policy On Religious Head Coverings

The U.S. Navy, in a memo dated March 16 (full text), became the third branch of the armed forces to liberalize its policy on accommodation of religious headgear.  As reported by Navy Times:

Previously, religious head coverings like Muslim hijabs and Jewish kippahs were allowed because they did not interfere with uniform covers, but per the March 16 instruction from the Bureau of Navy Personnel, there is no longer a requirement that an approved religious head covering be worn underneath the cover prescribed by the uniform of the day.

[Thanks to Scott Mange for the lead.]

Texas and Ohio COVID-19 Limits On Elective Medical Procedures Include Elective Abortions

Texas Tribune reports:

Citing the need to preserve health care capacity for COVID-19 patients, Texas Attorney General Ken Paxton said Monday that abortions should not be performed unless the mother's life is in danger.

The warning comes one day after Gov. Greg Abbott ordered health care facilities and professionals to postpone all procedures that are deemed “not medically necessary” as the state gears up for an influx of patients with COVID-19, the disease caused by the new coronavirus.

The attorney general said that the order, set to expire April 21, should also be interpreted to cover abortion clinics in the state.

Here is the Attorney General's press release.

New York Times reports that Ohio imposed a similar ban last week.

Britain Moves To Coronavirus Closures, Including Churches

Yesterday in Britain, Prime Minister Boris Johnson announced stay-at-home restrictions for the country to combat the spread of COVID-19. He said in part:

To ensure compliance with the Government’s instruction to stay at home, we will immediately: .... we’ll stop all social events​, including weddings, baptisms and other ceremonies, but excluding funerals.

The Church of England quickly announced that all of its churches would close immediately. [Thanks to Law & Religion UK for the lead.]

Huthi Court In Yemen Upholds Anti-Baha'i Death Sentence and Dissolution Order

AFP reports that on Sunday, a Huthi run appellate court in Yemen upheld the death sentence of a member of the Baha'i faith, despite international appeals on his behalf:

Hamed bin Haydara, who has been detained since 2013, was not allowed into Sunday's hearing in the capital Sanaa that rejected his appeal against the sentence imposed more than a year ago, the community said....

The rebels are linked to Iran, whose Shiite clerical regime bans the Baha'i faith....

The Baha'i International Community reports that there have been 18 appeals court hearings since bin Haydara was sentenced.

The U.S. Commission on International Religious Freedom issued a press release condemning the decision and said that the same court also upheld an order requiring dissolution of Baha'i institutions in Yemen.

Ohio Stay-At-Home Order Exempts Religious Gatherings

Ohio Governor Mike DeWine yesterday announced a statewide stay-at-home order designed to limit the spread of the coronavirus. The Order (full text) requires all persons to stay at home unless engaged in "essential" work, activity or travel. Among the list of essential operations that may continue is:

Religious facilities, entities and groups and religious gatherings, including weddings and funerals.

The Order takes effect at 11:59 pm today.  Business Insider reports on the governor's action.

Recent Articles of Interest

From SSRN:

• Helen M. Alvare, Beyond Moralism: A Critique and a Proposal for Catholic Institutional Religious Freedom, (Connecticut Public Interest Law Journal, Vol. 19, No. 1, 2019).
• Terri Day, Revisiting Masterpiece Cakeshop -- Free Speech and the First Amendment: Can Political Correctness Be Compelled?, (Hofstra Law Review, Volume 48 (Forthcoming)).
• Joao Pedro Padua, Discursive Devices for Inserting Morality Into Law: Initial Exploration From the Analysis of a Brazilian Supreme Court Decision, (Language and Law / Linguagem e Direito, Vol. 6(1), 2019, p. 11-29).
• Shamshad Pasarlay, Shīʿī Constitutionalism in Afghanistan: A Tale of Two Draft Constitutions, (Australian Journal of Asian Law, Vol. 20, No. 2, Article 1, 2020).
• Greer Donley, Parental Autonomy over Prenatal End-of-Life Decisions, (Minnesota Law Review, Vol. 105, Forthcoming).

From SmartCILP:

• Jonathan J. Kim & Eugene Temchenko, Constitutional Intolerance to Religious Gerrymandering, 18 Connecticut Public Interest Law Journal 1-57 (2019).
• L. Darnell Weeden, Using Rational Basis Review in an Establishment Clause Challenge to an Alleged Muslim Travel Ban Undermines Religious Liberty, 18 Connecticut Public Interest Law Journal 165-186 (2019).

Michigan Houses of Worship Exempted From Penalties For Violating COVID-19 Executive Order

On March 17, Michigan Governor Gretchen Whitmer issued Executive Order 2020-11 (COVID-19) which banned assemblages of more than 50 people in a single indoor shared space, with limited exceptions. None of the exceptions related to houses of worship.  However is an FAQs posting later in the week, the state said that while places of worship are covered, they are exempt from the penalty provisions that make willful violations of the ban a misdemeanor.  Detroit Free Press reports on the developments.

Texas Judge Sues Over Right To Oppose Same-Sex Marriage

A county judge in Jack County, Texas has filed suit in a Texas federal district court seeking declaratory and injunctive relief to prevent any future enforcement action by the Texas State Commission on Judicial Conduct against him. The complaint (full text) in Umphress v. Hall, (ND TX, filed 3/18/2020) alleges in part:

A few months ago, the Texas State Commission on Judicial Conduct issued a “public warning” to Dianne Hensley, a justice of the peace who recuses herself from officiating at same-sex marriage ceremonies on account of her Christian faith....  The Commission’s interpretation of Canon 4A(1) threatens every judge in Texas who refuses to perform same-sex marriages, as well as those who publicly evince disapproval of same-sex marriage or homosexual conduct in their extra-judicial activities.....

The Court should therefore declare that the First Amendment protects Judge Umphress’s right to conduct his extra-judicial activities in a manner that evinces disapproval of same-sex marriage and homosexual conduct.

Pink News reports on the lawsuit.

Police Had Cause To Search Residence of Catholic Religious Order Member

In State of Connecticut v. Sawyer, (CT Sup. Ct., March 19, 2020), the Connecticut Supreme Court held that the search warrant that led to the arrest of a member of a Catholic religious order for possessing child pornography was properly issued.  The court held that authorities had probable cause to search the residence of defendant, a member of The Brothers of Holy Cross, living with two other brothers in an apartment they rented from a West Haven Catholic church. Police acted on a report by one of defendant's roommates. AP reports on the decision.

New Hampshire Governor Sued Over Ban On Large Gatherings

One News Now reports that a lawsuit was filed yesterday in a New Hampshire state trial court challenging the Governor's COVID19- inspired emergency ban on gatherings of 50 or more people. The three plaintiffs argue that there is no emergency and that the ban violates their constitutional rights. Among the gatherings that plaintiffs wish to visit are religious services and Sunday school at a Baptist church. The court refused to issue an immediate temporary restraining order and scheduled a hearing for Friday.

HHS Sued Over Non-Enforcement of LGBTQ Anti-Discrimination Rules

As previously reported, last November the U.S. Department of Health and Human Services announced actions that effectively allow agencies receiving HHS grants to refuse to serve gay, lesbian and transgender individuals and families on religious grounds. First, HHS issued a Notice of Non-Enforcement of  rules adopted in 2016 that prohibit such discrimination. HHS then issued a Notice of Proposed Rulemaking that would repromulgate the rules with narrower anti-discrimination protections. Yesterday, a lawsuit was filed in a New York federal district court challenging the legality of the Notice of Non-Enforcement.

The complaint (full text) in Family Equality v. Azar, (SD NY, filed 3/19/2020) contends that the Notice of Non-Enforcement violates the Administrative Procedure Actin three ways. It was promulgated without notice-and-comment rule making. It was based on a mistaken determination that the 2016 original non-discrimination rule did not comply with the Regulatory Flexibility
Act. HHS failed to consider alternative remedies, the costs and benefits of their decision, and the public interest.  Lambda Legal issued a press release announcing the filing of the lawsuit, saying in part:

As the coronavirus pandemic continues to spread rapidly throughout the U.S., LGBTQ individuals of all ages are left vulnerable by the Trump administration’s illegal action, which implicitly permits discrimination when providing critical services.

Maine Voters Refuse To Repeal Strengthened Vaccination Requirements

As reported by BJC, on Super Tuesday earlier this month, voters in Maine, by a 3-1 margin, rejected an attempt to repeal Maine's new stronger immunization law. The law removes the prior exemption for religious and philosophical objections to vaccination. The law goes into effect in September 2021.

USCIRF Fact Sheet On COVID-19's Impact on Religious Freedom

The U.S. Commission on International Religious Freedom has issued a new Fact Sheet titled: The Global Response to the Coronavirus: Impact on Religious Practice and Religious Freedom.

Maryland Amends Hate Crime Law

The Maryland General Assembly this week gave final passage to an amended hate crime law, making it easier to convict. The bill-- SB606/ HB917 (full text)-- defines a hate crime as one "motivated  in whole or in substantial part" by a person's race, color, religious beliefs, sexual orientation, gender, disability, or national origin, or because another person or group is homeless. Previously the law required the crime be committed "because of" such characteristics. WTOP News reports on the legislature's action.                   

White House Briefs New York's Orthodox Rabbis On COVID-19 Precautions

Jerusalem Post and Jewish Insider report that the White House yesterday held a conference call with 15 leading Orthodox rabbis in the New York area to encourage them to follow the White House guidelines designed to prevent the further spread of COVID-19. The call was conducted by Avi Berkowitz, an Orthodox Jew who is an assistant to the President. More than 100 people have tested positive for the coronavirus in New York's Orthodox Jewish Borough Park neighborhood. After the call, the Satmar Rebbe, Rabbi Aaron Teitelbaum, ordered all synagogues and Jewish schools in the largely Hasidic village of Kiryas Joel to close.

9th Circuit: Religious References At Sentencing Hearing Were OK

In United States v. Hong, (9th Cir., March 17, 2020), the U.S. 9th Circuit Court of Appeals held that a district court did not violate defendants' free exercise rights at a sentencing hearing in a fraud case, saying in part:

The district court did not plainly err in describing how the Hongs used religion to carry out their fraudulent scheme, in commenting on video footage showing Grace Hong speaking to a church group, or in mentioning the spiritual harm suffered by the Hongs’ victims. The Hongs point to no binding legal authority precluding a sentencing court from considering the religion of the victims or noting the spiritual impact of an offense on the victims. 

Judge May No Deduct Litigation Expenses Borne By His Legal Defense Fund

As previously reported, in 2018 the Oregon Supreme Court suspended state circuit court judge Vance D. Day from his judicial office for three years without pay. The suspension was based in part on Judge Day's refusal to solemnize same-sex marriages.  Now in Vance v. Department of Revenue, (OR Tax Ct., March 13, 2020), the Oregon Tax Court held that Day improperly claimed as a deduction on his state income tax $128,000 in legal fees paid on his behalf by his legal defense fund.

Supreme Court Postpones Oral Arguments For Public Health Reasons

The U.S. Supreme Court announced yesterday that it is postponing oral arguments currently scheduled for it March session because of the COVID-19 pandemic. Included in the cases postponed are Tanzin v. Tanvir (availability of money damages under RFRA) and the consolidated arguments in two cases involving the scope of the Ministerial Exception doctrine (Our Lady of Guadalupe v. Morrissey-Berru and St. James School v. Biel). The Court's press release added:

The Court’s postponement of argument sessions in light of public health concerns is not unprecedented.  The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic.  The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.

Recent Articles of Interest

From SSRN:

• Itamar Mann, Zionism and Human Rights, (International Journal of Constitutional Law, Volume 17 issue 4 (October, 2019)).
• Ram Rivlin, Family Law and Religion in Israel, (March 9, 2020).
• Barbara E. Armacost, Celebrating Robert Cochran and the Future of "Embodied" Christian Legal Scholarship, (Pepperdine Law Review, Forthcoming).
• Amy J. Sepinwall, Conscience in Commerce, (February 19, 2020).
• Emad H. Atiq, Review of 'Natural Law and the Nature of Law,' by Jonathan Crowe, (Notre Dame Philosophical Reviews, 2020).
• Daniel Peterson, Case Note: Constitutional Court Decision No 93/PUU-X/2012 on Shari’a Banking Dispute Resolution, (Australian Journal of Asian Law, Vol. 20, No. 2, Article 7, 2020).
• Natalie Silver, When Charity No Longer Begins and Ends at Home: The Australian Government's Regulatory Response to Charities Operating Overseas,  (Adelaide Law Review, 40:3, 2019, pp. 755-782).

From SmartCILP and elsewhere:

• Sarah A. Morgan Smith, Commonwealth As Civic Communion, [Abstract], 57 University of Louisville Law Review 467-500 (2019).
• Journal of Law and Religion, Vol. 34, Issue 3 (Dec. 2019) has recently appeared.

6th Circuit Upholds Company's Religious Accommodation For Jehovah's Witness

In Small v. Memphis Light, Gas & Water, (6th Cir., March 12, 2020), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of an employment discrimination claim by a Jehovah's Witness. The court concluded that Memphis Light adequately accommodated their employee's religious beliefs when it allowed him to swap shifts with other employees. Judge Thapar filed a concurring opinion, criticizing the Supreme court's Hardison decision.

DOJ Gives Its Lawyers A Training Week On Religious Liberty

The New York Times reports today:

The Justice Department this week hosted training for its lawyers on religious liberty laws as part of Attorney General William P. Barr’s push to prioritize religious freedom cases, but the workshops prompted concern among some career lawyers that they were being educated on ways to blunt civil rights protections for gay and transgender people....

The training week was part of an ongoing campaign at the department to bolster ​its work to​ protect religious freedom, which is regularly described by top leaders as the first right protected by the First Amendment​, a department official said in response to a request for comment. ...

 A department spokesman said that the trainings were in no way meant to marginalize gay, lesbian and transgender people or to promote discrimination in any way, and that nothing in the materials presented did so.

Vanita Gupta, the president of the Leadership Conference on Civil and Human Rights and the former head of the Justice Department’s Civil Rights Division, accused Mr. Barr of using the Justice Department to promote his religious beliefs.

“In speeches and statements, he says that civil society is being undermined by a move away from religiosity,” she said. “He wants to use civil rights statutes and the D.O.J. to redeem what he views as the corrupted soul of America.”

President Calls For Day of Prayer For Protection and Strength

In a Tweet issued yesterday President Donald Trump said:

It is my great honor to declare Sunday March 15 as a National Day of Prayer. We are a Country that, throughout our history, looked to God for protection and strength in times like these. No matter where you may be, I encourage you to turn towards prayer in an act of faith. Together we will easily PREVAIL!

However, no formal Presidential Proclamation on the day of prayer appears on the White House website. Fox News reports on the President's statement.

New Website On Law, Religion and COVID-19

A new website-- Religion, Law and COVID-19 Emergency has been created by a group of faculty at the University of Bari (Italy). Here is their description of the coverage they seek to include:

The health emergency caused by the contagious virus Covid-19 is having many consequences also on religious rules – more broadly for the difficulties raising from the possible contradiction between the respect for the measures taken by civil authorities and religious rules. International law allows for the limitation˝ of the right to religious freedom on the grounds of protection of public health, and we are witnessing a situation of unprecedented restrictions on the global scale. As scholars engaged in the study of the legal regulation of the religious phenomenon, we have wanted to create a space to collect documents, comments and other useful materials related to the emergency, in order to assess the outcomes of the normative choices made by civil and religious authorities.

Some Louisville Religious Leaders Question Governor's Call For Halt To Services To Combat Coronavirus

In order to slow the spread of COVID-19, officials in various parts of the United States, as well as in a number of other countries, have encouraged or required cancellation of gatherings of large numbers of persons.  These have often specifically included a call for cancellation of religious services.  For the most part, churches and synagogues have cooperated with these government requests. However, the reaction yesterday of some religious leaders in Louisville, Kentucky to a request (full text) by Governor Andy Beshear raises in a new context a possible clash between government mandated health measures and religious rights.  The Louisville Courier Journal reports:

... [T]he request has caused confusion for congregations citywide, with some seeing it as an affront to their religions.

"Places that at one time seemed safe and sacred are now being called out as viral threats," the Interdenominational Ministerial Coalition said in a statement Wednesday. "The sanctity of church is needed during this uncertain time."....

The Rev. Stephen Smith adamantly said Portland Memorial Missionary Baptist Church will not cancel services for its 800 members. "You're not closing grocery stores, you're not closing gas stations, so no — we're not closing anything," Smith said.... 

"If we tried to shut the [Lenten] fish fry down we'd have a protest in the street," Smith said. "These people are going to come and get their fish; they're not thinking about a virus."...

... [T]he Archdiocese of Louisville.... issued a statement saying that it would not call for a cancellation of daily or weekend Masses.

"The Sunday celebration of the Eucharist is at the center of the life of the Church," the statement read. "Perhaps especially in difficult times, liturgical gatherings are a source of comfort and hope for the faithful, as well as an opportunity to offer our prayers to God for those who are suffering or who cannot be with us."

"At the same time, it is important – especially for those who are ill, feel vulnerable, or feel afraid – to be able to exercise individual discretion in light of this situation."

Christian Evangelists May Move Ahead With Part of Their Challenges To Restrictions On Them At City Festival

In O'Connell v. City of New Bern, North Carolina, (ED NC, March 10, 2020), a North Carolina federal district court allowed two Christian evangelists to move ahead with certain of their claims of unconstitutional treatment at the city's Mumfest-- an annual fall festival held in the historic downtown district.  The court held that the city did not infringe plaintiffs' 1st Amendment rights in barring them from carrying a nine-foot tall cross, using a loud megaphone to proselytize, or distributing literature, all in violation of city ordinances. The court did however allow plaintiffs to move ahead with their free speech and free exercise challenges to an officer moving them from the roadway to the sidewalk and placing a beeping firetruck and then a beeping utility cart between them and festival attendees who had gathered in the intersection.  The court said in part:

Defendant Conway testified that he ... placed a beeping cart in between plaintiffs and festival attendees because people were “getting aggravated” and “becoming aggressive” towards plaintiffs’ group.... Defendant Conway testified that individuals waived a rainbow flag in plaintiff O’Connell’s face and yelled at him.... In the past, individuals threw Mountain Dew bottles at plaintiff O’Connell, threatened plaintiff O’Connell with violence, and assaulted the police officers guarding plaintiff O’Connell....  Because “[l]isteners’ reaction to speech is not a content-neutral basis for regulation,” the court applies strict scrutiny to defendant Conway’s decision to order plaintiffs to the sidewalk and place a beeping cart between them and festival attendees in 2015.

Court Upholds $1.8M Award For Religiously Hostile Work Environment

In EEOC v. United Health Programs of America, Inc., (ED NY, March 6, 2020), a New York federal district court, in a 74-page opinion, upheld a jury verdict, as subsequently reduced by the court to $1.778 million, in a suit charging an employer with creation of a hostile religious work environment. The court said in part:

In the fall of 2007, defendants’ CEO, Robert Hodes, hired his aunt, Denali Jordan, who introduced religious and spiritual practices and teachings to the workplace. Defendants’ supervisors and officers, including Denali, imposed certain practices and beliefs, often referred to as “Onionhead” and “Harnessing Happiness,” on plaintiffs.....

[A]mple evidence in the record established that numerous religious images and practices permeated the office environment, and that employees were required to participate in such religious practices. Among other things, defendants’ office environment was cluttered with pervasive religious imagery, including rosary beads, Buddhas, and Onionhead/Harnessing Happiness literature, posters and banners; employees were given Onionhead feeling and truth cards and Onionhead workshop materials and instructed to use them; employees were strongly encouraged or instructed to wear Onionhead pins; employees were scheduled for attendance and participation at the Onionhead/Harnessing Happiness workshops, which employees understood were mandatory. ... [T]he Onionhead religion motivated certain idiosyncratic office practices, including the dismantling of overhead lights, use of candles, incense, and table lamps, hugging and kissing of coworkers, praying and meditation, and coworkers being directed to say “I love you.” All of these practices, taken together,could be found to have “unreasonably interfere[d] with an employee’s work performance” and altered the conditions of an employee’s work environment for the worse.

Missouri's Vaccination Exemption Form Not Motivated By Religious Hostility

In G.B. v. Crossroads Academy, (WD MO, March 2, 2020), a Missouri federal district court rejected the claim that the Missouri Department of Health and Senior Services was motivated by religious hostility when it adopted the exemption Form that parents must complete in order to obtain a religious exemption for their children from the state's vaccination requirement.  The Form includes a message from the Department encouraging vaccination to protect school children.

Court Interprets Defenses Under Illinois RFRA and Right of Conscience Act

In Rojas v. Martell, (IL App., March 6, 2020), an Illinois state appellate court answered four certified questions on the state's  Health Care Right of Conscience Act and its Religious Freedom Restoration Act. The court held that neither the analytic framework not the reasonable accommodation defense of Title VII should be read into these state statutes. It also concluded that transfer of an employee to a job that does not include the religiously objectionable duties may be permissible under the Right of Conscience Act. The issues arose in a case in which a county health department nurse claimed that the health department discriminated against her after she asserted that her Catholic religious beliefs prevented her from providing birth control, from providing Plan B emergency contraception, and from making abortion referrals.

Catholic Order May Build School, Gift Shop and Barn

In Fraternité Notre Dame, Inc. v. County of McHenry, 2020 U.S. Dist. LEXIS 40030 (ND IL, March 2, 2020), an Illinois federal magistrate judge, after holding a public hearing, approved a settlement agreement that allows a conservative order of Catholic nuns to construct a barn-like building for wine making, beer brewing, and canning, and to build a boarding school and a gift shop. In entering the settlement agreement, the parties stipulated that the county had violated the "substantial burden" provision of RLUIPA in denying an amended conditional use permit. The court's public hearing elicited comments both in favor of and opposed to the settlement agreement. The court said in part:

The historical religious bigotry Plaintiff has been subjected to provides a painful backdrop to this case. Plaintiff, its members, and the Property have been subjected to repeated acts of religious bigotry. The Property has been vandalized and desecrated in the most vile ways. Plaintiff's members have been threatened with lynching. And they have been placed in peril. For example, Plaintiff's vehicles have been vandalized in ways that affected the operation of the vehicles, including the loosening of lug nuts and the severing of brake fluid lines. Because of these criminal acts, Plaintiff installed fencing and cameras to protect its members and the Property.

Stunningly, a community member then staked out Plaintiff's property for hours upon hours, taking photographs of the fencing and cameras, all to prove his point that Plaintiff and its members were not "inviting." ...

Lots of people were willing to share their opinions regarding how Plaintiff should use its Property. But none of those opinions considered the legal requirements of RLUIPA.

Chicago Tribune reports on the decision.

Recent Articles of Interest

From SSRN:

• Laura Underkuffler, Should the Religious Be Exempt? Questions of Justice, Character, and the Maintenance of Norms, (Criminal Justice Ethics, Volume 37, 2018 - Issue 1).
• John Witte & Justin Latterell, The Last American Establishment: Massachusetts, 1780-1833, (Carl H. Esbeck and Jonathan Den Hartog, eds., Religious Dissent and Disestablishment: Church-State Relations in the New American States, 1776-1833 (University of Missouri Press, 2019)).
• Linda C. McClain, Bigotry, Civility, and Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, (John Witte, Jr. et al., eds, The Role of Law in Character Formation, Moral Education, and the Communication of Values in Late Modern Pluralistic Societies (Leipzig: EVA Publishers, 2020, Forthcoming).
• Linda C. McClain, Response to Commentaries on Who's the Bigot?, (Boston University Law Review, Vol. 99, No. 2713, 2020).
• Ashutosh A. Bhagwat, Crossing Doctrines: Conflating Standing and the Merits Under the Establishment Clause, (Washington University Law Review, Forthcoming).
• Samuel D. Brunson, God Is My Roommate? Tax Exemptions for Parsonages Yesterday, Today, and (if Constitutional) Tomorrow, (February 11, 2020).
• Dov Fox, The Legal Challenge of Abortion Stigma and Government Restrictions on Medical Practice, (Hastings Center Report, March 2020).
• Kent Greenfield, Trademarks, Hate Speech, and Solving a Puzzle of Viewpoint Bias, (Supreme Court Review, 2019, Forthcoming).
• Sefa Ozalp, et. al., Antisemitism on Twitter: Collective Efficacy and the Role of Community Organisations in Challenging Online Hate Speech. (Social Media and Society (2019).

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

• Neha Tripathi, Female Genital Mutilation: A Humanistic Approach, (January 28, 2020).
• Juan Pablo Perez Leon Acevedo & Thiago Felipe Alves Pinto, Enforcing Freedom of Religion or Belief in Cases Involving Attacks Against Buildings Dedicated to Religion: The Al Mahdi Case at the International Criminal Court, (Berkeley Journal of International Law (BJIL), Vol. 37, No. 3, 2020).
• Santiago Legarre, Germán José Bidart Campos (1927–2004), (Law and the Christian Tradition in Latin America: Biographies (London, Routledge, 2020, Rafael Domingo and Matthew Mirow eds.).
• Husam Suleiman, Implementation and Advancement of a Collaborative Zakat Management System in Southern California, the United States; A Case Study of a Hybrid Zakat Cooperative Model, (October 4, 2018).
• Saqib Jawad, Anglicization of Islāmic Law in the Sub-Continent and Its Impact on the Legal System of Pakistan, (Ulūm-e-Islāmia Vol. No.26, Issue No. 02, 2019).

High School Football Coach's Complaint Over On-Field Prayer Ban Is Dismissed

In Kennedy v. Bremerton Schoool District, (W WA, March 5, 2020), a Washington federal district court dismissed 1st Amendment and Title VII claims by a high school football coach who was suspended when he insisted on prominently praying at the 50-yard line immediately after football games.  The court said in part:

The ensuing dispute has highlighted a tension in the First Amendment between a public-school educator’s right to free religious expression and their school’s right to restrict that expression when it violates the Establishment Clause....

Given this practical assessment of Kennedy’s duties as a coach, the Court must hold that his prayers at the 50-yard line were not constitutionally protected.... Like the front of a classroom or the center of a stage, the 50-yard line of a football field is an expressive focal point from which school-sanctioned communications regularly emanate. If a teacher lingers at the front of the classroom following a lesson, or a director takes center stage after a performance, a reasonable onlooker would interpret their speech from that location as an extension of the school-sanctioned speech just before it. The same is true for Kennedy’s prayer from the 50-yard line....

Here, Kennedy’s practice of praying at the 50-yard line fails both the endorsement and coercion tests and violates the Establishment Clause. While it may not convey school approval as universally as a public announcement system, speech from the center of the football field immediately after each game also conveys official sanction. This is even more true when Kennedy is joined by students or adults to create a group of worshippers in a place the school controls access to.

The case, at the preliminary injunction stage, has already worked its way to the U.S. Supreme Court where certiorari was denied, but with an unusual 6-page concurring statement by 4 justices. (See prior posting.) Kitsap Sun reports on yesterday's district court decision.

USCIRF Hearing On Citizenship Laws and Religious Freedom

The U.S. Commission on International Religious Freedom held a hearing yesterday on Citizenship Laws and Religious Freedom. The hearing focused on the use of citizenship laws to deny rights to religious minorities, with emphasis on developments in India and past actions in Burma. The written statements submitted in the hearings are available on USCIRF's website.

West Virginia Legislature Enacts Law To Permit Courses On The Bible

The West Virginia legislature yesterday gave final passage to House Bill 4780 (full text) which authorizes public schools to offer elective social studies courses on the Bible in grades 9 and above. Such courses are to:

Teach students knowledge of biblical content, characters, poetry, and narratives that are prerequisites to understanding the development of American society and culture, including literature, art, music, mores, oratory, and public policy....

The bill now goes to Governor Jim Justice for his signature.  WV Metro News reports on the legislation.

Virginia Becomes 20th State To Ban Conversion Therapy

Virginia Governor Ralph Northam this week signed into law House Bill 386 (full text) which bans licensed health professionals from engaging in conversion therapy with anyone under 18 years of age. New York Times reports that this makes Virginia the twentieth state to ban these attempts to change sexual orientation of gender identity. It is the first southern state to do so.

Transcript of Oral Arguments In June Medical Services Case Now Available

Here is the transcript of today's oral arguments in the U.S. Supreme Court in June Medical Services L.L.C. v. Russo -- the constitutional challenge to Louisiana's abortion law. Vox reports on the oral arguments, headlining it "Abortion rights had a surprisingly hopeful day in the Supreme Court". CNN however headlines its report "Supreme Court appears split after hearing first major abortion case with strong conservative majority".

10th Circuit: Inedible Vegan Diet Burdened Buddhist Inmate's Religious Exercise

In Blair v. Raemisch, (10th Cir., March 2, 2020), the U.S. 10th Circuit Court of Appeals held that a Buddhist inmate's complaint about the vegan diet he was served adequately stated a claim under the 1st Amendment's free exercise clause and under RLUIPA. According to plaintiff's complaint, on 19 out of each 28 days, he was served a vegan patty made at the prison from left-over beans, yams, oatmeal, tomato paste, and seasoning combined in a blender and then baked. He alleged that these were inedible, and caused him to vomit. This forced him to go hungry or purchase vegan food from the commissary. The court concluded that, if true, this substantially burdened plaintiff's sincerely held religious beliefs and put pressure on him to abandon them. Colorado Politics reports on the decision.

Supervision of Sex Offender's Church Attendance Upheld

In State of Washington v. Mecham, (WA App., March 2, 2020), a Washington state appellate court rejected a free exercise challenge to a community custody condition imposed on a convicted sex offender. Under a negotiated plea agreement, appellant, among other things, was prohibited from attending church services unless accompanied and supervised by an adult aware of his offenses and approved by his Community Corrections Officer.  In upholding the prohibition, the court said in part:

Mecham’s crime involved abusing an unsupervised child at church. The day of the offense, Mecham was attending church with his mother, father, and older brother. Mecham has failed to show that these members of his family, who presumably know his offense, will be unable to supervise his attendance at church. Thus, from the record, Mecham will be able to continue attending church services in the same manner as before his conviction.

Further, even if the restriction unduly burdened Mecham’s free exercise, the restriction satisfies strict scrutiny....

The State has a compelling interest to protect families who attend church services from Mecham. Mecham committed the offense in a church. He abused a seven-year-old in the church playroom while the congregation enjoyed lunch upstairs....  Mecham needs supervision to prevent this type of contact.

Supreme Court To Hear Arguments Today In High-Profile Abortion Case

Today, the U.S. Supreme Court hears oral arguments in a high profile abortion case-- June Medical Services v. Russo. At issue is the constitutionality of the Louisiana Unsafe Abortion Protection Act which requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction issued by the district court preventing the Act from going into effect. In September 2018, the U.S. 5th Circuit Court of Appeals reversed the district court and upheld the statute. In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. Plaintiff appealed the substantive holding to the Supreme Court. The state cross-appealed the grant of third-party standing to the abortion clinic plaintiff. (See prior posting.) Meanwhile in February 2019 the Supreme Court stayed the 5th Circuit's decision pending appeal to the Supreme Court, with four justices dissenting. The SCOTUS blog case page has links to all the filings (including dozens of amicus briefs) in the case, as well as to commentary on the case.

I will post a link to the transcript of the oral arguments when they become available later today.

Buffalo Catholic Diocese Files For Bankruptcy Reorganization

The Catholic Diocese of Buffalo (NY) announced last week that it has filed for bankruptcy reorganization, saying in part that the petition has:

a primary aim of enabling financial resolution for the most number of individuals who have filed claims under the Child Victims Act - a year-long window that opened on August 14, 2019 that suspends the statute of limitations related to allegations of past sexual abuse.  A further objective of reorganization is that it allows the Diocese to continue uninterrupted its mission throughout Western New York, while working to settle claims with existing Diocesan assets and insurance coverages....

Parishes of the Diocese are separately incorporated under New York State's Religious Corporation Law and not included in today's filing. Similarly, Catholic elementary and secondary schools are also not part of the Chapter 11 case, given that they are owned by parishes or are separately incorporated entities. Catholic Charities of Buffalo, with its extensive ministries that serve residents throughout Western New York, providing critical social services, is also separately incorporated under New York's Not for Profit Corporation Law and will not be part of the filing. This is also true for the Diocese's capital and endowment Campaign - Upon This Rock.

The Bradford Era reports on the filing.

Suit Challenges Tennessee School Voucher Law

Suit was filed yesterday in a Tennessee state trial court challenging the constitutionality under the state constitution of the Tennessee's school voucher law. The funding law applies only to two urban counties (Nashville an Memphis areas). The complaint (full text) in McEwen v. Lee, (TN Chancery Ct., filed 3/2/2020) alleges violations of the state constitution's home rule provision, its education and equal protection clauses, and state provisions on appropriation of public funds. The complaint alleges in part:

The Voucher Law diverts taxpayer dollars to private schools that are not required to adhere to the same academic, accountability, governance, and non-discrimination requirements as Tennessee’s public schools. Diverting limited public education funding to private schools that do not provide students the same standards of education and civil rights protections as public schools violates Tennessee’s Constitution and state law.

The ACLU of Tennessee issued a joint press release announcing the filing of the lawsuit.

House Holds Hearings On Anti-Semitic Domestic Terrorism

On Feb. 26, a subcommittee of the House Homeland Security Committee held a hearing titled Confronting the Rise in Anti-Semitic Domestic Terrorism, Part II. Transcripts of testimony and opening statements, as well as a video of the entire hearing, are available on the Committee's website. Part I of the hearings were held in January. (Transcripts and video of testimony).

Recent Articles of Interest

From SSRN:

• James T. Lindgren, The Religious Beliefs, Practices, and Experiences of Law Professors, (15 University of St. Thomas Law Journal 342 (2019)).
• Faisal Daudpota, An Overview of Pakistan's Jurisprudence on: Free Exercise Clause, and Religious Freedom of Minorities, (February 21, 2020).
• Neil James Foster, Respecting the Dignity of Religious Organisations: When is it Appropriate for Courts to Decide Religious Doctrine?, (University of Western Australia Law Review, Vol. 47, No. 1, 2020).
• Ian Turner, Limits to Terror Speech in the UK and USA: Balancing Freedom of Expression With National Security, (Amicus Curiae, 2020).

From SmartCILP:

• Lalita Moskowitz. God Is a Woman: Feminism as a Religion Protected Under the Free Exercise Clause of the First Amendment, 27 American University Journal of Gender, Social Policy & the Law 399-430 (2019).
• Marian Burchardt, Zeynep Yanasmayan & Matthias Koenig. The Judicial Politics of Burqa Bans in Belgium and Spain--Socio-Legal Field Dynamics and the Standardization of Justificatory Repertoires. 44 Law & Social Inquiry 333-358 (2019).
• Gregory S. Parks & Derek S. Hicks. "How Much a Dollar Cost?" Political Ideology, Religion, and Poverty Policy Through the Lens of Kendrick Lamar's Music, 28 Southern California Review of Law & Social Justice 197-260 (2019).
• Russell Powell, Social Justice and Islamic Jurisprudence, 17 Seattle Journal for Social Justice 1-23 (2018).
• Pamela A. Wilkins. Law School in a Different Voice: Legal Education as a Work of Mercy, 63 St. Louis University Law Journal 401-452 (2019).

British Tribunal Denies Asylum To Disingenuous Iranian Convert To Christianity

Britain's appellate court that reviews decisions on visa and asylum applications and the right to enter or stay in the UK-- the Upper Tribunal (Immigration and Asylum Chamber-- has recently issued an interesting decision on how to treat a citizen of Iran who disingenuously converts from Islam to Christianity in Britain in order to create a basis for an asylum claim. In PS (Iran) v. Secretary of State for the Home Department, (UKUT IAC, Feb. 20, 2020), the court concluded that such aperson does not run a real risk of persecution upon return to Iran, and therefore is not entitled to asylum in the UK. the court said in part:

PS has been out of Iran since 2013; he has claimed asylum on at least two occasions, variously asserting fear as a result of being caught up in the green movement protests, ‘honour’ based violence and latterly on the basis that he had converted to Christianity; he attended church between May 2015 and sometime in 2016 and was baptised after he had been going to that church for about two weeks; he has no known contact with the authorities prior to leaving Iran; he has no known connection with any persons of interest, nor any adverse social media content to be concerned about. He has no known connection with any organisation which could be connected by the Iranian government to the house church movement.  He may be asked to sign an undertaking promising that he will not undertake any Christian activities. There is no reason why PS would refuse. We find that he is likely to be judged to present a negligible risk to the security of Iran. He will be released fairly quickly and we are not satisfied that there is any risk of ill-treatment. PS may be placed under surveillance. Once the authorities are satisfied that he is not attending house church or attempting to contact known Christians he will be of no further interest to the authorities.  Accordingly, we find that PS does not face a real risk of persecution upon return to Iran and his appeal is dismissed. 

The Tribunal also issued a new Country Guidance based on this case. Law & Religion UK reports on the case at greater length.

German Top Court Upholds Hijab Ban For Legal Interns Involved In Official Proceedings

In a decision handed down last month, but not published until yesterday, Germany's Federal Constitutional Court in a 7-1 decision rejected a challenge by a legal intern to the requirement that she remove her hijab when involved in court hearings.  The full decision in German is here. In a press release, the court summarized the decision:

In an order published today, the Second Senate of the Federal Constitutional Court rejected as unfounded the constitutional complaint of a female legal trainee (Rechtsreferendarin) in the Land Hesse; the complaint was directed against the ban on wearing a headscarf when performing certain official tasks. Under constitutional law, the legislature’s decision to establish a duty of neutral conduct with respect to ideological and religious matters for legal trainees must be respected. While this duty amounts to an interference with the complainant’s freedom of faith and other fundamental rights, it is justified. Such an interference can be justified by the constitutional principles of the state’s religious and ideological neutrality and of the proper functioning of the justice system as well as by the negative freedom of religion of others. In the case at hand, none of the conflicting legal interests outweighs the others to such an extent that it would be required under constitutional law to prevent the complainant from wearing religious symbols in the courtroom, or to allow her to do so.

Justice Department Sides With Wedding Photographer In District Court Case

The Department of Justice announced yesterday that it has filed a Statement of Interest (full text) in Chelsey Nelson Photography, LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 2/27/20).  As previously reported, in the case the owner of a wedding photography business seeks a preliminary injunction to prevent enforcement of Louisville's public accommodation ordinance against her. Plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. DOJ sides with the photographer, arguing in part:

Most commercial transactions will not involve requiring an unwilling speaker to participate in someone else’s expressive activity. But where public accommodations laws do intrude on expression in this way, they are subject to heightened scrutiny....

Photography—and particularly the bespoke wedding photography in which Ms. Nelson engages—is inherently expressive.... By ... compelling her to engage in expression promoting and celebrating a ceremony in violation of her conscience, Defendants infringe upon the fundamental “principle of autonomy to control one’s own speech.”

... That is not to say that every application of a public accommodations law to protected expression will violate the Constitution. In particular, laws targeting race-based discrimination may survive heightened First Amendment scrutiny....  The Supreme Court has not similarly held that classifications based on sexual orientation are subject to strict scrutiny or that eradicating private individuals’ opposition to same-sex marriage is a uniquely compelling interest.

Court Refuses To Order Church Membership Meeting

In Ceglar v. Christ's Harbor Church, (TX App., Feb. 27, 2020), a Texas state appellate court dismissed on ecclesiastical abstention grounds a suit brought by some 25 church members seeking a court order forcing the Church Elders to call a membership meeting.  Two female members of the Church charged its newly-hired senior pastor with inappropriate behavior. Plaintiffs wanted the membership meeting to decide whether the pastor should be disciplined or fired. Under the Church's bylaws, calling a special meeting requires a petition signed by 15% of the Church's members. The court concluded that, given the criteria for Church membership set out in the by-laws, the court cannot determine who is a member without delving into doctrinal matters.

Suit Challenges South Carolina's Anti-LGBTQ Curriculum Law

Three advocacy organizations filed suit yesterday in a South Carolina federal district court challenging the constitutionality of S.C. Code §59-32-30(A)(5) which prohibits public school sex education programs from discussing "alternate sexual lifestyles from heterosexual relationships including, but not limited to, homosexual relationships except in the context of ... sexually transmitted diseases." The complaint (full text) in Gender and Sexuality Alliance v. Spearman, (D SC, filed 2/26/2020)contends that the law violates the equal protection clause, saying in part:

The Anti-LGBTQ Curriculum Law harms LGBTQ students. It stigmatizes them by creating a state-sanctioned climate of discrimination in schools and denies LGBTQ students health education opportunities equal to those of their heterosexual peers.

WCSC reports on the lawsuit.

Trump Praises Modi's Efforts On Religious Freedom In India

At his press conference (full text) in New Delhi, India yesterday, President Donald Trump responded to a question about religious freedom in India:

Q    While you’ve been here in the country, in the capital, the northeast part of Delhi, there have been violent clashes.  Police have been killed, some demonstrators.  Nine deaths so far, we hear, and about 100-plus injured.  What did Prime Minister Modi say to you about this amended citizenship law?  And how concerned are you about this kind of religious violence in India?

THE PRESIDENT:  So, we did talk about religious freedom.  And I will say that the Prime Minister was incredible on what he told me.  He wants people to have religious freedom, and very strongly.  And he said that in India they have — they have worked very hard to have great and open religious freedom.  And if you look back and look at what’s going on, relative to other places especially, but they have really worked hard on religious freedom.

I asked that question in front of a very large group of people today.  And he talked about it; we talked about it for a long time.  And I really believe that’s what he wants.

As far as the individual attack, I heard about it but I didn’t discuss that with him.  That’s up to India.

The Hill reports on these remarks.

Religious Discrimination Suit Dismissed As Moot

In Fiedor v. Florida Department of Financial Services, (ND FL, Feb. 24, 2020), a Florida federal district court dismissed a state government employee's lawsuit alleging religious discrimination.  The court describes the facts of the case:

This case arises from a state agency’s regional manager’s mistaken view that agency policy prohibited employees from discussing religion at work or posting church-related materials on an office bulletin board. After the mistake came to light as a result of this lawsuit, the agency issued an unequivocal correction.  Employees of the regional office now may discuss religion and post church-related materials on the bulletin board. Following a bench trial, this opinion holds moot the plaintiff employee’s challenge to the manager’s now-abandoned position.

2nd Circuit: Chinese Christian Convert Does Not Have Reasonable Fear of Persecution Upon Deportation

In Wang v. Barr, (2d Cir., Feb. 24, 2020), the U.S. 2nd Circuit Court of Appeals upheld the denial of asylum to a Chinese citizen who had converted to Christianity. It held that she failed to prove a well-founded fear of future persecution. The court said in part:

Wang argues that there is a reasonable possibility that the Chinese government will become aware of her religious practice because she intends to attend an underground church, and that there is a reasonable possibility that she will be persecuted as a result because the government has a pattern or practice of persecuting similarly situated Christians. ....

The State Department’s 2015 International Religious Freedom Report states that there are approximately 45 million Christians practicing in unregistered churches in China and that authorities in some areas of the country allow unregistered churches to hold services “provided they remained small in scale,” although authorities in other areas target and close such churches.... The news reports in the record concern abuses against people who are not similarly situated to Wang—who testified that she would attend services at an unregistered church, but not that she would take a leadership role, proselytize, or engage in other activism—or concern areas of China other than Wang’s native Fujian province.

9th Circuit Upholds HHS Family Planning Grant Rules

In a 7-4 en banc decision yesterday, the U.S. 9th Circuit Court of Appeals upheld the Trump Administration's rules that apply to recipients of family planning grants under Title X. In State of California v. Azar, (9th Cir., Feb. 24, 2020),  the majority in an 82-page opinion vacated injunctions that had been entered by three district courts.  The court described the major provisions of the challenged rules:

While referrals for abortion as a method of family planning are not allowed, the Title X project may give a pregnant client a “list of licensed, qualified, comprehensive primary health care providers,” which may include “providers of prenatal care[], some, but not the majority, of which also provide abortion as part of their comprehensive health care services.” .... The Title X project may also provide referrals for abortion when such a procedure is medically necessary....

... [T]he Final Rule ... requires that a Title X project be organized “so that it is physically and financially separate . . . from activities that are prohibited under section 1008 of the Public Health Service Act..... [in order to avoid] the appearance and perception that Title X funds being used in a given program may also be supporting that program’s abortion activities.... 

The dissenters argued that the HHS rules violate Congressional mandates, saying in part:

The majority would return us to an older world, one in which a government bureaucrat could restrict a medical professional from informing a patient of the full range of health care options available to her. Fortunately, Congress has ensured such federal intrusion is no longer the law of the land.

ABC News reports on the decision.

Supreme Court Denies Cert. In Title VII Religious Accommodation Case

The U.S. Supreme Court today denied review in Patterson v. Walgreen Co., (Docket No. 18-349. certiorari denied 2/24/2020). In the case, the U.S. 11th Circuit Court of Appeals, in a suit alleging religious discrimination and retaliation, held that Walgreen had offered reasonable accommodations for the religious needs of a Seventh Day Adventist employee whose beliefs did not permit him to work on Saturday. (See prior posting). In a concurring opinion (full text) accompanying the denial of cert, Justice Alito, joined by Justices Thomas and Gorsuch, said that in an appropriate case the Court should reconsider its holding in the Hardison case that an employer need accommodate an employee's religious observance only if it imposes no more than a de minimis hardship on the employer. They concluded however that "this case does not present a good vehicle for revisiting Hardison."

Supreme Court GVRs Puerto Rico Decision On Pension Liability of Catholic Church

Th U.S. Supreme Court today issued opinions granting certiorari, vacating the judgment of the Puerto Rico Supreme Court and remanding for further proceedings the case of Roman Catholic Archdiocese of San Juan v. Feliciano, (US Sup. Ct., Feb. 24, 2020). At issue was whether the Roman Catholic and Apostolic Church in Puerto Rico was liable for pension benefits of Catholic School employees in Puerto Rico.  The petition for certiorari argued that civil courts must respect the Church's own views on its internal structure. The Supreme Court in a per curiam opinion concluded, however, that it need not reach that issue because Puerto Rican courts lost jurisdiction over the case when it was removed to federal court and had not yet been remanded. Justice Alito, joined by Justice Thomas, wrote to note important issues that may arise on remand. They said in part:

[T]he Free Exercise Clause of the First Amendment at a minimum demands that all jurisdictions use neutral rules in determining whether particular entities that are associated in some way with a religious body may be held responsible for debts incurred by other associated entities....

Beyond this lurk more difficult questions, including (1) the degree to which the First Amendment permits civil authorities to question a religious body’s own understanding of its structure and the relationship between associated entities and (2) whether, and if so to what degree, the First Amendment places limits on rules on civil liability that seriously threaten the right of Americans to the free exercise of religion as members of a religious body.

Supreme Court Grants Review Of City's Refusal To Contract With Catholic Social Services

The U.S. Supreme Court today granted review in Fulton v. City of Philadelphia, (Docket No. 19-323, certiorari granted 2/24/2020) (Order List). The case will be argued next term. In the case, the U.S. 3rd Circuit Court of Appeals upheld held against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.)  Links to filings with the Supreme Court in the case are available from SCOTUSblog's case page.

European Court Finds That Azerbaijan Violated Rights of Jehovah's Witnesses

On February 20, 2020, the European Court of Human Right issued two chamber judgments finding violation of religious freedom rights by Azerbaijan. In Nasirov and Others v. Azerbaijan (application no. 58717/10), the court held that the detention of several Jehovah’s Witnesses for door to-door preaching and distribution of literature violated their rights to freedom of religion (Art. 9) and liberty of person (Art. 5) under the European Convention on Human Rights.

In Religious Community of Jehovah’s Witnesses v. Azerbaijan (no. 52884/09), the Court concluded that Azerbaijan's ban on the importation of specified religious books violated Jehovah's Witnesses freedom of expression under the European Convention on Human Rights (Art. 10) considered in connection with their right to freedom of religion (Art. 9), saying in part:

Cases which involve prior restraint call for special scrutiny by the Court.

Azerbaijan had argued that the three titles in question contained disparaging remarks about the Christian and Jewish communities, contending:

[T]he books in question implied religious superiority and incited religious discord and could therefore damage the peaceful coexistence of several religious communities in a multireligious society...

The court concluded however that Azerbaijani courts "did not carry out careful balancing exercise in conformity with the criteria laid down in its case-law and did not provide “relevant and sufficient” reasons for the interference."

Recent Articles of Interest

From SSRN:

• Phil Lord, Case Comment: Garcia v Church of Scientology Flag Service Organization, (86:2 Arbitration __ (Forthcoming)).
• Richard H. Weisberg, Binaries: Remarks on Chaim N. Saiman's 'Halakhah', (Villanova Law Review, Vol. 64, No. 5, 2019).
• Micah Schwartzman & Nelson Tebbe, Establishment Clause Appeasement, (Virginia Public Law and Legal Theory Research Paper No. 2020-17 (2020)).
• Sahar F. Aziz, The Social Construction of the Racial Muslim, (Rethinking Orientalism (ed. Tamara Sonn) (Oxford University Press), Forthcoming).
• Melissa Were, The Right to Emergency Medical Treatment in the Context of Abortion in Kenya, (October 2019).
• Kaiponanea T. Matsumura, The Integrity of Marriage, (William & Mary Law Review, Vol. 61, No. 2, 2019).

New Chinese Regulations For Religious Groups Took Effect This Month

A Fact Sheet issued last week by the U.S. Commission on International Religious Freedom summarizes China's 2019 Administrative Measures for Religious Groups which became effective on February 1, 2020. Bitter Winter magazine provides a full translation of the Measures. Among the provisions are the following:

Religious organizations must support the leadership of the Communist Party of China, abide by the Constitution, laws, regulations, rules and policies, adhere to the principles of self-support and self-governance, adhere to the direction of Sinicization of religions in China, embody the core values ​​of socialism, and maintain national unity, ethnic unity, religious harmony and social stability.

... Religious organizations shall accept professional guidance and supervision by the religious affairs department of the people’s government.

No 1st Amendment Violation In Requiring Parolee To Live At Christian Homeless Shelter

In Janny v. Gamez, (D CO, Feb. 21, 2020), a Colorado federal district court dismissed an inmate's First Amendment challenge to his arrest for parole violations. Mark Janny's parole officer directed him to stay at a Christian homeless shelter in order to meet the parole requirement that he establish a residence of record. Janny was expelled from the shelter's program when he refused to attend chapel religious services. The court held that plaintiff's Establishment Clause rights were not infringed because there was a secular purpose for the homeless shelter requirement. The court also accepted defendant's qualified immunity defense to an assertion of free exercise violations, saying that it was not clearly established that a parole officer violates a parolee’s rights by requiring him to reside at a facility that provides religious programming.

Swiss Court Says Company's Logo Is Not Offensive To Christians

Swiss Info reports that Switzerland's Federal Administrative Court has ruled against the Swiss Federal Institute of Intellectual Property's attempt to prevent the company Jägermeister from expanding the use of its logo (a stag with a glowing cross between it antlers) beyond liquor and clothing items. The Institute argued that the logo was offensive to the religious views of some consumers. According to Swiss Info:

The court ... said ...: although the story behind the logo indeed stems from an old Christian tale, today the average consumer associates it clearly with the Jägermeister liqueur rather than revelation....

For the Swiss federal judges, ... the “intensive” use of the image by Jägermeister had “weakened its religious character” over time, and nobody was likely to be offended. 

The company is thus free to use it for all promotional activities and products in Switzerland including cosmetics, mobile phones, or telecommunications services.

[Thanks to Tom Rutledge for the lead.]

DOJ Sues Nebraska Village For Refusing Building Permits To Church

The Justice Department announced yesterday that it has filed suit in a Nebraska federal district court against the village of Walthill, Nebraska alleging violations of the "substantial burden" and "equal terms" provisions of the Religious Land Use and Institutionalized Persons Act.  The complaint (full text) in United States v. Village of Walthill, Nebraska, (D NE, filed 2/20/2020), alleges in part:

This civil action is based on the Village’s unlawful refusal to allow Light of the World Gospel Ministries, Inc...., a non-denominational Christian church, to construct a new place of worship on property it owns in a commercial (“C-1”) district of the Village by denying the Church necessary permits. 

... Since 2007, LOTW has operated religious services out of a small, 1,250 sq. ft. building ... on another lot in the C-1 district. The space is no longer adequate to serve its religious needs, and the unstable condition of a dilapidated building next to the church on the property made the space unsafe. The Village refused to permit LOTW to build its noncommercial religious property in the C-1 district, but has permitted noncommercial nonreligious entities to construct buildings in the C-1 district during the same time period.

Court Says Student Evangelists May Preach In Chicago's Millennium Park

In Swart v. City of Chicago, (ND IL, Feb. 20. 2020), an Illinois federal district court granted a preliminary injunction to four Wheaton College students who were part of an outreach ministry to prevent the city of Chicago from enforcing its regulations limiting speech and handbilling activities in the downtown Millennium Park. The court held that the park is a traditional public forum, that the regulations, as enforced, are not content neutral and unconstitutionally vague.  The court also granted a preliminary injunction to intervenors who engage in other kinds of speech activities in the park. Chicago Sun Times reports on the decision.

Jewish School Sues Town For Religious Discrimination

A religious discrimination suit was filed in a New York federal district court this week by an Orthodox Jewish girl's school against the Town of Clarkstown, New York charging it with wrongfully preventing the school from purchasing a Baptist Church property.  The complaint (full text) in Ateres Bais Yaakov Academy of Rockland v. Town of Clarkston, (SDNY, filed 2/18/2020), alleges in part:

In early January 2019, in reaction to ABY’s pending permit application following its entry into a contract for the purchase of the Property, Clarkstown Supervisor George Hoehmann, other Clarkstown officials and members of a Rockland County political party, members of CUPON, and CUPON’s counsel met to concoct a plan to prevent ABY’s purchase of the Property.

... In parallel to the manufactured public pressure from CUPON, the Town denied ABY’s permit application through a blatant misapplication of its zoning laws....

Following its knowing interference with and evisceration of ABY’s contract topurchase the  Property and months of delay, the Town purchased the Property for itself. For the Town, this is but the latest example in a demonstrable pattern of wreaking havoc on religious property applicants to prevent their engagement in the Clarkstown community. 

Lower Hudson News reports on the lawsuit.

Harrisburg Catholic Diocese Files For Bankruptcy Reorganization

Yesterday, the Catholic Diocese of Harrisburg (PA) filed for bankruptcy reorganization in federal bankruptcy court. In announcing the move, Bishop Robert Gainer said in part:

Over the past few years, our Diocese has been forced to confront our horrific past regarding clergy sexual abuse. Today, we are facing some difficult financial realities. Despite making every attempt to scale back operations and reduce overhead, we are currently unable to meet our financial obligations.

... Our current financial situation, coupled with changes in the law both here and in New Jersey, where we are already named in one lawsuit and where we anticipate more to follow, left us with no other path forward to ensure the future of our Diocese. Despite the success of the Survivor Compensation Program, which helped 111 survivors of clergy child sexual abuse, or 96% of those who participated in the Program, we already are in receipt of half a dozen new lawsuits, any one of which could severely cripple the Diocese.

As Bishop, I must ensure the Diocese’s core mission is upheld, which is to remain focused on Christ’s mandate to preach, teach, sanctify, and to serve those in need. We must work to bring the Chapter 11 process to a conclusion, as soon as is reasonably possible and in a way that allows us to be present to the community, as we have been for the past 152 years.

Links to all the pleadings and other documents in the case are available here.  Reporting on the filling, AP says that the diocese joins at least 20 others across the country that have filed for bankruptcy. The diocese says it has assets of less than $10 million with liabilities between $50 and $100 million.

Parents Sue School District Over Its Transgender Policy

A group of parent filed suit this week against the Madison, Wisconsin school district challenging the district's policy on transgender students.  The complaint (full text) in Doe I v. Madison Metropolitan School District, (WI Cir. Ct., filed 2/18/2020) contends that the district's policy violates state constitutional provisions protecting parental rights and their free exercise of religion. The complaint describes the district's policy as follows:

The policy enables children, of any age, to socially transition to a different gender identity at school without parental notice or consent, requires all teachers to enable this transition, and then prohibits teachers from communicating with parents about this potentially life-altering choice without the child’s consent. Even more, the Madison School District directs its teachers and staff to deceive parents by reverting to the child’s birth name and corresponding pronouns whenever the child’s parents are nearby.

The complaint goes on to allege:

As a direct result of their religious beliefs, if these Plaintiffs’ children ever experience gender dysphoria, they would not i mmediately “affirm” whatever beliefs their children might have about their gender, but would instead remind them that they were “fearfully and wonderfully made,” see Psalm 139:14, and seek to help them identify and address the underlying causes of the dysphoria and learn to accept and embrace their God-given sex.

... At the same time, Plaintiffs w ill never stop loving their children, or love them any less, no matter what they believe about their gender.

LGBTQ Nation reports on the lawsuit.