Church's Challenge To Kentucky Ban on Mass Gatherings Is Rejected

In Maryville Baptist Church, Inc. v. Beshear, (WD KY, April 18, 2020), a Kentucky federal district court refused a request by a church and its pastor to issue a temporary restraining order against enforcing Governor Andy Beshear's ban on mass gatherings. The ban includes in-person religious services. The court said in part:

Plaintiffs seek to compare in-person attendance at church services with presence at a liquor store or “supercenter store[].” The latter, however, is a singular and transitory experience: individuals enter the store at various times to purchase various items; they move around the store individually—subject to strict social-distancing guidelines...—and they leave when they have achieved their purpose. Plaintiffs’ desired church service, in contrast, is by design a communal experience, one for which a large group of individuals come together at the same time in the same place for the same purpose....

Similarly unpersuasive is Plaintiffs’ contention that the orders violate their right to freely exercise their religion by discriminating against religious conduct. Again, the order temporarily prohibits “[a]ll mass gatherings,” not merely religious gatherings....  Religious expression is not singled out.

Louisville Courier-Journal reports on the decision.

Recent Articles of Interest

From SSRN:

• Joshua Cutler, A Hebrew Republic in the Gilded Age? Henry George’s Single Tax and the Hebrew Bible, (March 23, 2020).
• Abner S. Greene, Liberalism and the Distinctiveness of Religious Belief, (Forthcoming, 35 Constitutional Commentary (2020)).
• Carliss Chatman, If a Fetus is a Person, it Should Get Child Support, Due Process, and Citizenship, (Washington and Lee Law Review, Vol. 76, No. 1, 2020).

From SmartCILP:

• Milo Colton, Texas Indian Holocaust and Survival: McAllen Grace Brethren Church v. Salazar, 21 Scholar 51-146 (2019).

Kansas Churches Get TRO To Protect Against Enforcement Of Congregant Number Limits

In First Baptist Church v. Kelly, (D KS, April 18, 2020), a Kansas federal district court granted two churches a temporary restraining order against enforcement of a provision in Kansas Governor Laura Kelly's COVID-19 executive orders that ban religious assemblies of more than ten congregants.  The TRO's however included specific safety precautions that the churches had accepted. In granting the TRO, the court said in part:

Plaintiffs have made a substantial showing that development of the current restriction on religious activities shows religious activities were specifically targeted for more onerous restrictions than comparable secular activities. The Governor previously designated the attendance of religious services as an “essential function” that was exempt from the general prohibition on mass gatherings. That designation has not been rescinded or modified, yet in EO 20-18 and EO 20-25 churches and religious activities appear to have been singled out among essential functions for stricter treatment. It appears to be the only essential function whose core purpose – association for the purpose of worship – had been basically eliminated. For example, the secular facilities that are still exempt from the mass gathering prohibition or that are given more lenient treatment, despite the apparent likelihood they will involve mass gatherings, include airports, childcare locations, hotels, food pantries and shelters, detoxification centers, retail establishments (subject to the distancing and “essential function” purpose noted above), retail food establishments, public transportation, job centers, office spaces used for essential functions, and the apparently broad category of “manufacturing, processing, distribution, and production facilities.”...

ADF issued a press release announcing the grant of the TRO. (See prior related posting.)

Court Upholds New Mexico 5-Person Limit On Size of Church Gatherings

In Legacy Church, Inc. v. Kunkel, (D NM, April 17, 2020), a New Mexico federal district court refused to enjoin enforcement of the Order issued by the New Mexico Department of Health that bars gatherings of more than five people in houses of worship. Legacy Church, a megachurch, requires approximately 30 clergy and technical staff members to live stream its religious services. Summarizing its 100-page opinion, the court said:

The primary issues are: (i) whether Plaintiff Legacy Church, Inc.... is likely to succeed on the merits in demonstrating that Defendant Kathyleen M. Kunkel’s Public Health Emergency Order (4-11-20-PHO)..., which restricts places of worship from gathering more than five people within a single room or connected space, violates Plaintiff Legacy Church’s rights under the Free Exercise Clause of the First Amendment....; and (ii) whether Legacy Church is likely to succeed on the merits in demonstrating that the Order violates [its]... rights to peaceably assemble under the First Amendment. The Court concludes that: (i) the Order does not violate Legacy Church’s First Amendment religious freedom rights, because the Order is neutral and generally applicable; and (ii) the Order is a reasonable time, place, and manner restriction, and so does not violate Legacy Church’s First Amendment rights to assemble.

[Thanks to Marty Lederman via Religionlaw for the lead.] 

Churches Sue Challenging Kansas Stay-At-Home Order

Two churches filed suit in a Kansas federal district court yesterday challenging a provision in Gov. Laura Kelly's COVID-19 stay-at-home order (Executive Order 20-18) which bans religious services with more than ten congregants. The complaint (full text) in First Baptist Church v. Kelly, (D KS, filed 4/16/2020) contends that the order violates plaintiffs' 1st Amendment rights as well as their rights under the Kansas Preservation of Religious Freedom Act.  ADF issued a press release announcing the filing of the lawsuit. The complaint alleges in part:

While EO 20-18 carves out broad exemptions for 26 types of secular activities from this gathering ban, including, bars and restaurants, libraries, shopping malls, retail establishments, and office spaces the order singled out “churches and other religious services or activities” to expressly prohibit any type of gathering of more than ten non-performing individuals, regardless of whether social distancing, hygiene, and other efforts to slow the spread of COVID-19 were practiced.

(See prior related posting.)

Litigation Delay Refused In Suit Over Christian School's Compliance With Nondiscrimination Requirements

In Bethel Ministries, Inc. v. Salmon, (D MD, April 15, 2020), a Maryland federal district court refused to stay discover in a suit by a Christian school challenging its disqualification from Maryland's scholarship program for non-public schools.  Bethel Christian Academy was denied funds because of its failure to comply with non-discrimination requirements which include a ban on discrimination on the basis of sexual orientation and gender identity. Maryland school officials had sought a stay because of the U.S. Supreme Court's grant of certiorari in Fulton v. City of Philadelphia. In refusing a stay, the district court said in part:

[T]he Supreme Court’s decision in Fulton might provide useful guidance for this Court’s resolution of Bethel’s claims. Even so, this Court is disinclined to stay proceedings because of a theoretical possibility....

By the nature of the claims presented in this case, a delay of more than a year would have a significant effect on Bethel’s enrollment, and its ability to budget for the academic year. Irrespective of the ultimate result of this matter, Bethel and Defendants would be better served by entering the 2020-2021 school year with this litigation moving closer to a definitive conclusion.

Justice Department Backs Church Objections To Discriminatory COVID-19 Bans

On Tuesday, the U.S. Attorney General William Barr issued a statement (full text) on Religious Practice and Social Distancing. He said in part:

In exigent circumstances, when the community as a whole faces an impending harm of this magnitude, and where the measures are tailored to meeting the imminent danger, the constitution does allow some temporary restriction on our liberties that would not be tolerated in normal circumstances. 

But even in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers.  Thus, government may not impose special restrictions on religious activity that do not also apply to similar nonreligious activity. For example, if a government allows movie theaters, restaurants, concert halls, and other comparable places of assembly to remain open and unrestricted, it may not order houses of worship to close, limit their congregation size, or otherwise impede religious gatherings.  Religious institutions must not be singled out for special burdens.

He also indicated that the Department of Justice had filed a Statement of Interest (full text) Temple Baptist Church v. City of Greenville, a Mississippi church's challenge to a ban on drive-in church services. (See prior posting.) Subsequently Greenville's mayor indicated that the city would allow drive-in services as long as families stay in their cars with the widows rolled up. (WREG News).

Suit Challenges Chattanooga's Ban On Drive-In Church Services

Suit was filed on Thursday in a Tennessee federal district court challenging Chattanooga, Tennessee's COVID-19 ban on drive-in church services.  The complaint (full text) in Metropolitan Tabernacle Church v. City of Chattanooga, (ED TN, filed 4/16/2020), alleges in part:

[A]ccording to the City, you can buy a hamburger and sit in your car at a drive-in restaurant, or sit in the parking lot of a retail establishment with hundreds of other vehicles with your windows rolled down, but you can’t sit in your car at a drive-in church service with your windows rolled up....

Plaintiffs sincerely believe that the Bible teaches the necessity of gathering together for corporate prayer and worship and that such assembly is necessary and good for the Church and its members’ spiritual growth....

The City’s drive-in church ban targets, discriminates against, and shows hostility towards churches, including Plaintiffs.

ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Enforcement of COVID-19 Orders Against Pro-Life Activists

Suit was filed today in a North Carolina federal district court seeking to enjoin city of Greensboro and Guilford County officials from applying COVID-19 orders to prevent anti-abortion activists from walking and praying in front of abortion clinics.  The complaint (full text) in Global Impact Ministries, Inc. v. City of Greensboro, (MD NC, filed 4/14/2020) contends:

The County has passed, and the City is enforcing, regulations limiting the operations of certain businesses and activities, and imposing social distancing requirements in response to the recent pandemic, but those requirements have been applied in an inconsistent and unconstitutional manner with respect to peaceful conduct and charitable religious activities in Greensboro. 

ADF issued a press release announcing the filing of the lawsuit.

Church Challenges To COVID-19 Orders Proliferate

Suits challenging COVID-19 orders that ban group church services are proliferating.  Sacramento Bee reported yesterday:

A group of Inland Empire pastors is suing California Gov. Gavin Newsom in federal court, alleging that his administration is “criminalizing the free exercise of religion” with stay-at-home directives that have prevented people from attending church services....

One of the plaintiffs is Dean Moffatt, a Riverside County pastor who was fined $1,000 for holding a Palm Sunday church service, according to the complaint filed.

KRQE News reported yesterday:

An Albuquerque [New Mexico] megachurch is now suing the state claiming the governor violated the first amendment that protects the freedom of religion. Specifically, it’s focused on the church’s Easter Sunday service and the number of people it takes to live stream to its congregation....

[Pastor Steve] Smothermon of Legacy Church filed suit requesting a temporary restraining order but also a permanent injunction affording them the same restrictions as local essential retailers, limiting capacity to 20%. Smothermon says to hold yesterday’s service they would have a worship team, a band, the pastor and technical staff. A group of about 30 people. Therefore, conducting the live-streamed services would immediately violate the governor’s order to limit gatherings to no more than five people.

WAVE News reported yesterday:

 A Kentucky church whose members defied Gov. Andy Beshear’s executive order not to gather in groups now plans to file a federal lawsuit claiming its constitutional rights were violated.

The Maryville Baptist Church is at the center of the debate, after about 50 members attended an Easter service in person.

Kentucky State Police troopers were ordered to take down the license plates of those who attended, threatening to quarantine them.

The church’s attorney, Matthew Staver, said the lawsuit is because the church was targeted.

Suit Challenges City's Ban On Drive-In Church Services

On Friday, a church in Greenville, Mississippi filed suit in federal district court challenging the city's COVID-19 closure order insofar as it bans drive-in church services held on church property where the service is broadcast over low-power FM radio to individuals sitting in their cars. The complaint (full text) in Temple Baptist Church v. City of Greenville, (ND MS, filed 4/10/2020) contends that the order violates plaintiffs' rights of free exercise, free speech and freedom of assembly, their due process rights, and conflicts with the Mississippi governor's statewide order.  ADF issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Nicholas Aroney & Patrick Parkinson, Associational Freedom, Anti-Discrimination Law and the New Multiculturalism, ((2019) 44 Australasian Journal of Legal Philosophy 1).
• M. Mohsin Alam Bhat, Equality in Secularism: Contemporary Debates on Social Stratification and the Indian Constitution, (Neo, Jaclyn L., Arif A. Jamal, and Daniel PS Goh, eds. Regulating Religion in Asia: Norms, Modes, and Challenges. Cambridge University Press, 2019).
• Smarika Kumar & Michael Riegner, Freedom of Expression in Diverse Democracies: Comparing Hate Speech Law in India and the EU, (in: Philipp Dann/Arun Thiruvengadam (eds), Democratic Constitutionalism in Continental Polities: EU and India compared, 2020, Cheltenham: Elgar, Forthcoming).
• Seana Shiffrin, Compelled Speech and the Irrelevance of Controversy, (47 Pepperdine Law Review 731 (2020)).
• Melanie Kalmanson & Riley Fredrick, The Viability of Change: Finding Abortion in Equality After Obergefell, (23 New York University Journal of Legislation and Public Policy, 2020).
• Hee Yul Lee, Hyun-Ju Hwang & Dong-Hwan Kim, Issues of Halal Supply Chain Management: Suggestion for Korean Traders, (Journal of Korea Trade Vol. 23, No. 8, December 2019, 132-144).
• M. Mohsin Alam Bhat, Court as a Symbolic Resource: Indra Sawhney Case and the Dalit Muslim Mobilization, (Rosenberg, Gerald N., Sudhir Krishnaswamy, and Shishir Bail, eds. A Qualified Hope. Cambridge University Press, 2019).

From Smart CILP:

• Symposium: Pagans and Christians in the City: Culture Wars from the Tiber to the Potomac by Steven D. Smith. Introduction by students Victoria Harris, John Komondorea; articles by Perry Dane, Abner S. Greene, Bruce P. Frohnen, Anna Su, Brian Dunkle, Helen M. Alvare, Michael P. Moreland. 57 Journal of Catholic Legal Studies 1-66 (2018).
• Education Law and Policy at the Margins: Critical Analyses of the Intersection of Race, Religion, Gender & Class in Education. Articles by Timberly L. Baker, Steven L. Nelson, Antron D. Mahoney, Heather Brydie Harris, Kenzo K. Sung, Ayana Allen-Handy, Chelsea E. Connery, Preston C. Green III, James C. Kaufman, David Hoa Khoa Nguyen, Josue Lopez, Ann M. Aviles, David O. Stovall. 19 University of Maryland Law Journal of Race, Religion, Gender & Class 1-184 (2019).

Kansas Supreme Court Says Legislative Attempt To Revoke Governor's COVID-19 Order Was Invalid

In Kelly v. Legislative Coordinating Council, (KA Sup. Ct., April 11, 2020), the Kansas Supreme Court upheld the effectiveness of Kansas Governor Laura Kelly's executive order (full text) which, among numerous other things, bars gatherings of more than ten people in churches and other houses of worship. (The order does allow more than ten individuals if they are conducting or performing the religious service, so long as they follow safety protocols including six-foot distancing.)  The court held that attempts by the Legislative Coordinating Council to revoke the governor's executive order were invalid. The court said that its decision does not rule on "whether Executive Order 20-18 was a legally valid or constitutional exercise of the Governor's authority, despite its limitation on religious gatherings." NPR reports on the decision.

President Trump Sends Easter Greetings

The White House this morning posted President Trump's Presidential Message on Easter, 2020. It reads in part:

Melania and I join millions of Christians celebrating the resurrection of Jesus Christ and the gift of eternal life this Easter.  Although this year’s observance of Easter comes during a somber time for our Nation, we hope all of you are filled with the joy, love, and hope that marks this holiest of days.

As our Nation has faced the unique challenges posed by the coronavirus during the past few weeks, we have turned to God for guidance, comfort, and hope.  Throughout this difficult period, we have witnessed the core tenets of Christianity—love, compassion, and kindness—reflected in the many acts of courage, generosity, and caring of the American people.  Our country’s citizens have taken to heart the words of 1 Peter 4:10: “Each one should use whatever gift he has received to serve others, faithfully administering God’s grace in its various forms.”

5th Circuit Upholds Part of TRO Issued Against Texas COVID-19 Abortion Ban

As previously reported, on April 7, the US. 5th Circuit Court of Appeals permitted Texas Gov. Gregg Abbott's COVID-19 related ban on elective abortions to go into effect. After additional skirmishing that led to a new temporary restraining order by the district court, on April 9 in In re Abbott, the 5th Circuit by a 2-1 vote upheld the TRO insofar as it permitted abortions for patients who would be past the 22-week limit for abortions by April 22, but otherwise stayed the TRO pending consideration of the case by the 5th Circuit.  Judge Dennis dissented saying he would not have stayed any part of the district court's TRO.  AP reports on these developments.

Court Allows Drive-In Church Services For Easter In Kentucky; In-Person Attendees Face Quarantine

In On Fire Christian Center, Inc. v. Fischer, (WD KY, April 11. 2020), a Kentucky federal district court issued a temporary restraining order barring the city of Louisville from enforcing a COVID-19 related ban on drive-in Easter services that were planned by a Louisville church. The court began its opinion as follows:

On Holy Thursday, an American mayor criminalized the communal celebration of Easter.

That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship – and even though it’s Easter.

The Mayor’s decision is stunning.

And it is, “beyond all reason,” unconstitutional.

The court explained in part:

Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs – including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.”That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”

The day before the decision was issued, Kentucky's attorney general issued a Statement (full text) saying in part:

We are aware that some Kentucky jurisdictions are discussing a prohibition of drive-in church services for the upcoming Easter holiday.  As long as religious groups and worshippers are complying with current Centers for Disease Control (“CDC”) recommendations for social distancing to slow the spread of COVID-19, we see no problem with these drive-in services occurring.

Religious organizations should not be treated any differently than other entities that are simultaneously conducting drive-through operations, while also abiding by social distancing policies....

This leniency does not, however, extend to in-person church services. As reported by WHAS News, Kentucky's governor says that anyone attending mass gatherings, including church services, this weekend, will be required to be quarantined for 14 days. Gov. Andy Beshear said the state record license plates those attending such gatherings and will give the information to local health departments who will then order quarantines.

UPDATE: On April 21, the Louisville Courier Journal reported:

On Fire Christian Church has reached an agreement with Louisville Mayor Greg Fischer and city officials to continue to hold drive-in services while abiding by social distancing guidelines set forth by the Centers for Disease Control and Prevention.

5th Circuit: Texas Elective Abortion Ban During COVID-19 Emergency Is Upheld

In In re Greg Abbott, (5th Cir., April 7, 2020), the U.S. 5th Circuit Court of Appeals issued a writ of mandamus that allowed the portion of Governor Greg Abbott's COVID-19 emergency order limiting elective abortion procedures to go into effect. All abortions other than those medically necessary to preserve the life or health of the mother are banned in order to preserve medical resources and limit the spread of coronavirus. Relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts, the court said in part:

The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” ... Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive.... At the same time, however, courts may not second-guess the wisdom or efficacy of the measures....

Properly understood, GA-09 merely postpones certain non-essential abortions, an emergency measure that does not plainly violate Casey in the context of an escalating public health crisis.... Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may constitute an undue burden under Casey, if they prove that, “beyond question,” GA-09’s burdens outweigh its benefits in those situations.

Judge Dennis filed a dissenting opinion. Texas Tribune reports on the decision.

Suit Challenges Student Government's Refusal To Fund Speech By Religious Figure

Suit was filed last week in a Georgia federal district court against officials at Georgia Tech after a Students for Life chapter was denied student activity fee funds to sponsor a talk by Dr. Martin Luther King's niece, Alveda King.  Student government denied funding because Ms. King has been involved in religious ministries and the religious aspects of her life could not be separated from the event which was to focus on civil rights and abortion. The complaint (full text) in Students for Life at Georgia Tech v. Regents of the University System of Georgia, (ND GA, filed 4/1/2020) alleges free speech violations (compelled speech and viewpoint discrimination), as well as due process and equal protection violations.  ADF issued a press release announcing the filing of the lawsuit.

Australia's Top Court Reverses Sex Abuse Convictions of Cardinal George Pell

In Pell v. The Queen, (High Ct. Australia, April 7, 2020), Australia's highest court reversed the sex abuse convictions of Cardinal George Pell, finding:

there is "a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof."

The court ordered that judgments of acquittal be entered for Pell. the Court issued a press release summarizing the opinion. Pell, who at the time of the alleged offenses served as Archbishop of Melbourne, later become Vatican's Prefect of the Secretariat of the Economy and is the highest-ranking Catholic official to be accused of sex abuse. CNN and New York Times report on the court's decision. Pell released this statement after the Court's decision was handed down. [Thanks to Tom Rutledge and Scott Mange for the lead.]

1st Circuit OKs "So Help Me God" In Naturalization Oath

In Perrier-Bilbo v. United States, (1st Cir., April 3, 2020), the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of "so help me God" at the end of the oath of allegiance administered at naturalization ceremonies. Plaintiff, a French citizen, was offered the options of just not repeating those words during the ceremony or of having a private ceremony where the oath would be administered without that phrase. She rejected these as inadequate.

The court denied plaintiff's Establishment Clause challenge, applying the test used by the Supreme Court in American Legion v. American Humanist Association, saying in part:

We follow the Supreme Court's most recent framework and apply American Legion's presumption of constitutionality to the phrase "so help me God" in the naturalization oath because we consider the inclusion of similar words to be a ceremonial, longstanding practice as an optional means of completing an oath. And because the record does not demonstrate a discriminatory intent in maintaining those words in the oath or "deliberate disrespect" by the inclusion of the words, Perrier-Bilbo cannot overcome the presumption.

Rejecting Plaintiff's Free Exercise claim, the court said in part:

We do not second-guess the sincerity of Perrier-Bilbo's beliefs or her feeling of distress upon hearing the phrase at issue. But even if the phrase offends her, offense "does not equate to coercion," Town of Greece, 572 U.S. at 589, and the Free Exercise Clause does not entitle her to a change in the oath's language as it pertains to others....

The court rejected Plaintiff's argument under RFRA, saying in part:

While she might find the options offered by the Government subjectively burdensome, however, the district court was right to conclude that not every imposition or inconvenience rises to the level of a "substantial burden."

The court also rejected equal protection and due process challenges.  Judge Barron filed a concurring opinion. Free Thinker blog discussed the decision.

SBA Says Churches and Other Religious Organizations Are Now Eligible For SBA Loans

On April 3, the Small Business Administration announced that faith-based organizations, including houses of worship, are eligible to receive SBA loans regardless of whether they provide secular social services. (FAQ Document) (Press Release).  This applies both to the Paycheck Protection Program designed to keep small business workers employed, and to the Economic Injury Disaster Loan Program which provides small businesses and non-profits working capital. The FAQ Document says in part:

...[N]o otherwise eligible organization will be disqualified from receiving a loan because of the religious nature, religious identity, or religious speech of the organization. The requirements in certain SBA regulations— 13 C.F.R. §§ 120.110(k) and 123.301(g)—impermissibly exclude some religious entities. Because those regulations bar the participation of a class of potential recipients based solely on their religious status, SBA will decline to enforce these subsections and will propose amendments to conform those regulations to the Constitution. Although 13 C.F.R. § 120.110(a) states that nonprofit entities are ineligible for SBA business loans (which includes the PPP program), the CARES Act explicitly makes nonprofit entities eligible for the PPP program and it does so without regard to whether nonprofit entities provide secular social services.

Supreme Court Denies Review In Bus Ad Case

The U.S. Supreme Court today denied certiorari in Archdiocese of Washington v. Washington Metropolitan Transit Authority, (Docket No. 18-1455, cert. denied 4/6/2020).  (Order List [scroll to end]).  In the case, the D.C. Circuit Court of Appeals rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads.  The ban includes ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese of Washington wished to purchase space on the exterior of buses for its Christmas season "Find the Perfect Gift" ad. (See prior posting.) The Circuit denied en banc review, over a dissents in an opinion written by Judge Griffith. (See prior posting.)

Justice Kavanaugh was part of the panel that heard the original arguments in the case in the D.C. Circuit, so he recused himself from considering the petition for review.  While the Supreme Court denied review, Justice Gorsuch joined by Justice Thomas filed a statement saying in part:

Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted for reasons admirably explained by Judge Griffith in his dissent below and by Judge Hardiman in an opinion for the Third Circuit....

... [T]he government may minimize religious speech incidentally by reasonably limiting a forum like bus advertisement space to subjects where religious views are unlikely or rare. But once the government allows a subject to be discussed, it cannot silence religious views on that topic.... So the government may designate a forum for art or music, but it cannot then forbid discussion of Michelangelo’s David or Handel’s Messiah. And once the government declares Christmas open for commentary, it can hardly turn around and mute religious speech on a subject that so naturally invites it.

Recent Articles of Interest

From SSRN:

• Nicholas Aroney, Federalism: A Legal, Political and Religious Archeology,(March 6, 2020).
• Kyle Velte, Errant Exceptionalism, (March 6, 2020).
• Sabah Mofidi, Religion and Political Culture in Eastern Kurdistan, (Journal of Middle Eastern Research 2 (2019) 45-65).
• Anne Levesque, Assessing Litigation Strategies by Government Respondents to Human Rights Complaints, (Canadian Journal of Human Rights, Forthcoming).
• Dr. Ahmad Shaikh, Study of the Honour Killing in India Within the Boundaries of the Indian Constitution, (March 8, 2020).
• Steven Jacobs, The Future of Roe v. Wade: Have Recent Developments Robbed Roe of its Original Justification?, (March 7, 2020).
• Michael Boucai, Before Loving: The Lost Origins of the Right to Marry, (Utah Law Review, Vol. 2020, No. 1, 2020).
• Shadrack Bentil, Polymorphous Discrimination: Rohingya Women in the Goggles of Intersectionality, (February 22, 2020).

From SmartCILP:

• Lucien J. Dhooge, A Case Law Survey of the Impact of RLUIPA on Land Use Regulation, [Abstract], 102 Marquette Law Review 985-1044 (2019).
• Allan W. Vestal. "No person . . . shall ever be molested on account of his mode of worship or religious sentiments. . . .": the Northwest Ordinance of 1787 and Strader v. Graham, 102 Marquette Law Review 1087-1159 (2019).

Factional Dispute In Israelite House of David Is Dismissed

In Ferrel v. Israelite House of David, (MI App., April 2, 2020), a Michigan appellate court upheld a trial court's dismissal on ecclesiastical abstention and standing grounds a suit by a former member of the Israelite House of David against the two individuals who claimed to be among a handful of members of a religious organization whose history traced back over 100 years.  Plaintiff had surrendered his membership in a settlement agreement with the organization in 2013. According to the court:

Plaintiff stated that he is “perhaps . . . the only person who is a true believer in the religion of IHOD with the capacity to manage the assets to advance its religious purpose.” He alleged that “he may be the only party standing between continuation of IHOD doctrine and Defendant’s theft and destruction of the religion for personal gain.” On the basis of these allegations, plaintiff sought relief in various forms, including a declaratory judgment that defendants “have improperly and unlawfully diverted IHOD from its stated mission....

In affirming the dismissal of the case, the court said in part:

The trial court did not err by ruling that resolution of plaintiff’s claims would require a decision on matters of church doctrine and polity. Plaintiff argues that his complaint did not seek resolution of any religious issues but concerned a dispute about real estate. This statement is belied by an examination of plaintiff’s amended complaint.... Plaintiff maintained that, with the exception of William Robertson, who was elderly and may have suffered from dementia, “there are no proper members of IHOD.” Plaintiff further alleged that, unlike defendants, he was a true believer and “should be allowed to reestablish his membership as the only person committed to maintain the faith.”... 

The damages that plaintiff alleged are spiritual in nature.... [P]laintiff alleged that he was “deprived of the means and mechanisms necessary for the free exercise of his chosen religion,” “prevented from participating in the central tenet and goal of the religion—the ingathering of the flock of God,” and “deprived of the means to spread the gospel to others.” He also alleged that he has suffered “extreme emotional distress from the loss of the means to practice his religion and the specter of being deprived of salvation.”

5th Circuit Clarifies Test For Prior Restraints In Limited Public Forums

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., April 3, 2020), the U.S. 5th Circuit Court of Appeals remanded to the district court a lawsuit by Freedom From Religion Foundation which was denied the right to display its "Bill of Rights Nativity Scene" in the Texas State Capitol building.  The court rejected Texas' sovereign immunity defense and held that under the Ex part Young exception an injunction barring future conduct could be issued. However, it said, under the 11th Amendment the district court cannot grant retrospective relief. It went on:

Among out sister circuits, however, “there is broad agreement that, even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment.” ...

[W]e hold that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, we REVERSE and REMAND for the district court to apply the correct unbridled discretion analysis in the first instance.

New Jersey's COVID-19 Ban Enforced Against Religious Life-Cycle Events

Philadelphia Inquirer yesterday published this report on enforcement in Lakewood, New Jersey of the state's COVID-19 ban on large gatherings:

Fifteen men were charged with violating Gov. Phil Murphy’s ban on large gatherings during the coronavirus crisis after they attended an Orthodox Jewish funeral Wednesday in Lakewood, the Ocean County Prosecutor’s Office said Thursday.

The gathering was one of several in Lakewood in recent weeks in which police were called to break up large groups of people. Other events included a bat mitzvah over the weekend; four separate weddings in which four people who hosted them were charged with a disorderly person offense or with maintaining a nuisance; and a gathering of about 25 young men at a school in which the headmaster was charged with maintaining a nuisance.

Michigan Will Allow Secular Marriage Celebrants

In an April 2 press release, the Center for Inquiry reports:

Secular celebrants are now permitted to officiate and solemnize marriages in Michigan, after the state attorney general reversed the government’s opposition to a lawsuit brought by the Center for Inquiry (CFI). Promising that the state considers CFI-trained and certified Secular Celebrants to be covered by existing statutes regarding marriage solemnization, the presiding federal court brought the case to a close.

New Jersey's Aid In Dying Act Is Upheld

In Petro v. Grewal, (NJ Super., April 1, 2020), a New Jersey state trial court dismissed a suit challenging the constitutionality of New Jersey's Medical Aid in Dying for the Terminally Ill Act.  Plaintiffs challenged the law on numerous grounds, including under the free exercise clause. First the court held that plaintiffs lack standing to challenge the law, saying in part:

Their deeply felt religious, ethical or professional objections to the Act do not suffice to establish standing, even under New Jersey's liberal standard.

The court however went on to also reject plaintiffs' claims on the merits. In part of its opinion, the court rejected plaintiffs' free exercise objections to the obligation of a doctor who refuses to provide aid in dying to transfer health care records to a patient's new doctor. The court said that the law is a neutral law of general applicability, and that the obligation to transfer records is "minimally burdensome."  North Jersey.com reports on the decision.

Interesting RFRA Case Involving Proof of Infant's Citizenship

Sabra v. Pompeo, (D DC, April 2, 2020), is an unusual RFRA case.  Mohammed Sabra and his wife Ponn Sabra are United States Citizens.  Here are Mrs. Sabra's claims, as recounted by the court:

In September 2018, Mrs. Sabra moved from the United States to Gaza with her three daughters because her two eldest daughters attend college there.... After arriving in Gaza, Mrs. Sabra discovered that she was pregnant with Baby M....  Mrs. Sabra decided to stay in Gaza to be close to Mr. Sabra’s family there....

In 2019, Baby M was born at home in Gaza just after intense bombing was going on in Gaza City.  In June 2019, Mrs Sabra contacted the U.S. embassy in Israel seeking an emergency appointment at the Erez Crossing to obtain a Counselor Report of Birth Abroad and a passport for Baby M.  The parents indicated that they needed to seek medical treatment for Baby M in the United States.  Because Mrs. Sabra was 46 years old, the consulate insisted on additional evidence establishing that she was in fact the baby's mother.  The embassy ultimately insisted on photos of Mrs. Sabra during her pregnancy and DNA testing of Baby M.  However the Sabra's, who are Muslim, objected:

... Mr. Sabra has a “strong religious hesitation” to DNA testing, whereas Mrs. Sabra has an “absolute religious objection” to the DNA testing of Baby M.... With respect to the photographs, Plaintiff’s counsel confirmed that there are two photographs of Mrs. Sabra during the pregnancy, but Mr. and Mrs. Sabra refuse to provide those photographs to the Embassy based on religious objections..... The basis ... is that the photographs are “very personal,” they were “taken in an intimate in-house setting with just the family,” and “for religious views, [they] should [not] be seen by anyone outside of the family ever.”

In an 87-page opinion that deals with a number of other issues as well, the court refused to dismiss plaintiffs' RFRA claims, saying in part:

There is a genuine dispute as to whether the Embassy’s request for the DNA testing and Mrs. Sabra’s pregnancy photographs served a compelling interest by the least restrictive means.

Court Dismisses Claims That Mormon Doctrines Are Fraudulent

In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, March 31, 2020), a Utah federal district court dismissed on 1st Amendment grounds a suit alleging fraud by the LDS Church.  In the suit, a former LDS Church member alleged that several basic teachings of the Church involve misrepresentations.  The court said in part:

Each of these alleged misrepresentations directly implicates the Church’s core beliefs. Because a statement’s falsity is an essential element of fraud claims, adjudicating these claims would require the court to do exactly what the Supreme Court has forbidden—evaluate the truth or falsity of the Church’s religious beliefs. This court can no more determine whether Joseph Smith saw God and Jesus Christ or translated with God’s help gold plates or ancient Egyptian documents, than it can opine on whether Jesus Christ walked on water or Muhammed communed with the archangel Gabriel. The First Amendment prohibits these kinds of inquiries in courts of law.

Courthouse News Service reports on the decision.

Challenge To School Bible Program Is Dismissed After Program Is Terminated

In Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV. March 31, 2020), a West Virginia federal district court in a 25-page opinion dismissed as moot a suit to enjoin Mercer County's Bible in the Schools program.  The Board terminated the 70-year old program after litigation challenging it had continued for two years.

Courts Grapple With State Abortion Bans In COVID-19 Responses

As previously reported, Texas and Ohio have included abortions as non-essential medical procedures which are banned to preserve resources for treatment of COVID-19 patients. Alabama has also imposed a similar ban. Wall Street Journal reports that district court judges in each of those states have blocked the bans. However yesterday in In re Abbott, (5th Cir., March 31, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision temporarily stayed the Texas federal district court's injunction, allowing the ban on abortions to remain, at least for the time being. The state however was directed to file an initial response by 8:00 a.m. today.

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.