Hair Salon Raises Free Exercise Claims To Wisconsin COVID-19 Order As State Supreme Court Invalidates It On Other Grounds

As reported by WBAY, a suit was filed Tuesday in a Wisconsin federal district court challenging the state's "Safer at Home" order on free exercise and free speech grounds.  Plaintiff Jessica Netzel operates a faith-based hair salon.  According to the news report:

The lawsuit states Kingdom Kuts "as the name implies, is a ministry of Plaintiff Ms. Netzel. Scriptural references are placed about the business. Ms. Netzel sincerely believes that she is to share her faith with others through her work at Kingdom Kuts."

The suit also says that the order prevents plaintiff from participating in in-person worship services.

UPDATE: Here is the full text of the complaint in Kindom Kuts v. Netzel, (ED WI, filed 5/12/2020). [Thanks to Marty Lederman via Religionlaw.]

Yesterday in Wisconsin Legislature v. Palm,( WI Sup. Ct., May 13, 2020), the Wisconsin Supreme Court in a 4-3 decision held that the state's Safer at Home order is unenforceable because it exceeds statutory authority and was not adopted in accordance with required rulemaking procedures.

ADL Releases 2019 Audit of Antisemitic Incidents

Yesterday the ADL released its 2019 Audit of Antisemitic Incidents in the United States. (Full text of report.) According to the report:

In 2019, ADL tabulated 2,107 antisemitic incidents throughout the United States.  This is a 12% increase from the 1,879 incidents recorded in 2018 and marks the highest number on record since ADL began tracking antisemitic incidents in 1979.

U.N. Conference On Role of Religious Leaders In Addressing COVID-19 Crisis

Yesterday, the United Nations General Assembly held a video conference on The Role of Religious Leaders In Addressing the Multiple Challenges of COVID-19. Here is background on the conference and a list of speakers. Here is a video of the entire 3-hour Conference. In his remarks (full text), U.N. Secretary General António Guterres said in part:

[W]e continue to see conflicts rage in many places — along with a rise in ethno-nationalism, stigma and hate speech targeting vulnerable communities and exacerbating suffering.  Meanwhile, extremists and radical groups are seeking to exploit eroding trust in leadership and feed on people’s vulnerability to serve their own ends.

 I ask faith leaders to actively challenge inaccurate and harmful messages, and encourage all communities to promote non-violence and reject xenophobia, racism and all forms of intolerance....

 Across the globe we are seeing an alarming increase in violence against women and girls as this pandemic spreads.... I appeal to religious leaders to categorically condemn such acts....

 [A]s we fight the spread of disinformation and misinformation, I ask religious leaders to leverage your networks and communication capacities to support governments in promoting WHO-recommended public health measures — from physical distancing to good hygiene — and to ensure that faith-based activities, including worship, religious ceremonies and burial practices, comply with these measures.

6th Circuit Permits Same-Sex Couple To Intervene In Lawsuit By Catholic Adoption Agency

The U.S. 6th Circuit Court of Appeals this week issued an opinion on a procedural issue in the continuing battle between the state of Michigan and Catholic adoption and foster care agencies.  In settling a case brought by a same-sex couple, the state agreed to impose sexual-orientation non discrimination requirements on child-placement agencies that contract with the state. Then the district court issued a preliminary injunction protecting the Catholic agency.  Now in Buck v. Gordon, (6th Cir., May 11, 2020), the Court of Appeals held that the trial court should have allowed permissive intervention in the case by a same-sex couple whose earlier lawsuit triggered Michigan's imposition of the non-discrimination requirements. Meanwhile the underlying case is on hold awaiting the U.S. Supreme Court's decision on a similar issue in Fulton v. City of Philadelphia.

Free Exercise Challenge To St. Louis COVID-19 Order Dismissed On Standing Grounds

In Hawse v. Page, (ED MO, May 11, 2020), a Missouri federal district court held that plaintiffs lack standing to bring a free exercise challenge to the St. Louis County's COVID-19 order limiting religious gatherings to ten persons. The court said in part:

Here, Plaintiffs state that they are bringing a "facial challenge" to the constitutionality of the Order.... Plaintiffs allege that they are Christians and that Sunday church services are important to their worship.....Plaintiffs allege that their churches are large enough to allow social distancing and have hand sanitizer and other hygiene products to allow for safe gatherings.... Plaintiffs, however, do not identify their religious denominations, organizations, or specific places of worship in the Complaint. Plaintiffs do not allege when their respective churches closed or what caused them to close. Plaintiffs do not allege that their large church gatherings were suspended because they were unlawful under the Order, rather than in response to the general COVID-19 public health crisis....  Thus, based upon the Complaint, the Court is unable to discern the specific impetus for closure of Plaintiffs' churches and, likewise, what would enable their churches to reopen. 

The court however refused to dismiss plaintiffs' due process challenge at this time, asking for further briefing on the issue.

Pakistan Creates National Commission For Minorities

UCA News reports that on May 5, Pakistan's federal cabinet approved creation of a National Commission for Minorities. Pakistan's Supreme Court had called for the government to create such a body over six years ago.  The Commission will have representatives from the Christian, Muslim, Hindu, Sikh, Parsi and Kelash  communities. No Ahmadi Muslims are included.  Some minority groups have criticized the Commission as having no power.  The U.S. Commission on International Religious Freedom, however, welcomed the action by the Pakistani government.

Suit Against Community College Challenges Campus Speech Restrictions

Suit was filed in an Oregon federal district court last week by a pro-life group and two Christian students challenging a community college's policies that require advance approval for speech activities on campus as well as limiting speeches and leafleting to certain speech zones.The complaint (full text) in Chemeketa Students for Life v. Members of the Chemketa Board of Education, (D OR, filed 5/5/2020) challenges the school's policies on free speech and vagueness grounds. ADF issued a press release announcing the filing of the lawsuit.

Maine Ban On Religious Gatherings Over 10 Persons Is Upheld

In Calvary Chapel of Bangor v. Mills, (D ME, May 9, 2020), a Maine federal district court refused to issue a temporary restraining order against Maine Governor Janet Mills' COVID-19 order which prohibits religious gatherings of more than ten people. The court rejected plaintiff's free exercise, Establishment Clause and free speech challenges to the Order.

Waiver For Foster Care Agencies To Select Parents Using Religious Criteria Violates Establishment Clause

In Rogers v. U.S. Department of Health and Human Services, (D SC, May 8, 2020), a South Carolina federal district court refused to dismiss Establishment Clause and sexual orientation discrimination claims by a lesbian couple who challenged waivers granted by the state and federal government allowing religious child placement agencies (CPA's) receiving government funds to select foster parents on the basis of religion. (See prior posting.) The court said in part:

Plaintiffs allege that their inability to become foster parents through Miracle Hill was directly caused by the actions of the State Defendants and Federal Defendants because they have affirmatively enabled the discrimination against Plaintiffs by authorizing Miracle Hill and other religiously-affiliated CPAs to use religious criteria to reject prospective foster parents....

[T]he court finds that a reasonable, informed observer could conclude that the Defendants’ actions were taken in an effort to protect a specific CPA, Miracle Hill, and permit discrimination within South Carolina’s foster care program on the basis of Miracle Hill’s religious criteria. Other courts have similarly held that where, as Plaintiffs allege occurred in this case, a state’s authorization for faith-based CPAs to use religious criteria to exclude prospective foster parents “objectively endorses the religious views of those agencies[,] . . . sending a message . . . that [those prospective foster parents who are rejected] are outsiders, not full members of the community.”... Accordingly, taking all facts set forth in the Complaint as true, Plaintiffs have set forth sufficient allegations that Defendants’ actions had the primary effect of advancing and endorsing religion and, thereby, violate the Lemon test and the requirements of the Establishment Clause. ....

Contrary to Defendants’ argument, the Supreme Court has long recognized that the Constitution does not permit “a system of government in which important, discretionary governmental powers would be delegated to or shared with religious institutions.”... Therefore, to the extent Defendants’ assert that their actions are immune from challenge under the Establishment Clause as “religious accommodation,” such argument is directly contrary to the well-pled allegations in the Complaint and long-established federal jurisprudence and must be rejected at this stage of the proceedings.

Lambda Legal issued a press release announcing the decision.

Pastor Sues Over COVID-19 Orders and Conditions of Bond

In Louisiana, Pastor Tony Spell, who has defied state COVID-19 stay-at-home orders by holding large church services at Life Tabernacle Church in Central, Louisiana, has filed suit against Governor John Bel Edwards and other officials seeking a temporary restraining order allowing him to continue to hold services.  The suit challenges both the Governor's emergency orders and special conditions of bond imposed on Spell after he was charged with nearly running over a protester with his church bus. Those special conditions include compliance with the Governor's orders. The complaint (full text) in Spell v. Edwards, (MD LA, filed 5/7/2020) alleges in part:

There has been no factual determination made that Pastor Spell has actually violated the ambiguous and contradictorily-worded Emergency Orders, but Defendants are enforcing by penalties and home incarceration the Emergency Orders against him as if alleged violations were proven fact by the "end run" of a misplaced "special condition of bond," currently imposed by a Louisiana State District Court judge. Furthermore Defendants have explicitly failed and refused to even allow argument regarding the discriminatory and disparately applied orders against Pastor Spell and Life Tabernacle Church while allowing local and similarly situated non-religious businesses-"big box" retailers, groceries and hardware stores to continue business accommodating gatherings, crowds of more than ten (10) people or of any limit whatsoever, without the enforcement of any "social distancing," or other measures supposedly required by the Emergency Orders.

WBRZ News reports on the lawsuit.

Supreme Court Oral Arguments In Ministerial Exception Cases Live Today

At 11:00 AM today, the U.S. Supreme Court will hear oral arguments in Our Lady of Guadalupe School v. Morrissey-Berru (SCOTUSblog case page), and St. James School v. Biel (SCOTUSblog case page). In the cases, the U.S. 9th Circuit Court of Appeals held that the Catholic school teacher in each of the cases was not prevented from bringing an employment discrimination lawsuit. The 9th Circuit held that they are not "ministers" for purposes of the "ministerial exception" doctrine.  The oral arguments, which will be held via teleconference may be heard on C-Span live at this link.   Los Angeles Times reports on the cases.

UPDATE: Here is the transcript of the full arguments in the cases. Reuters reports on the oral arguments.

Recent Articles of Interest

From SSRN:

• Rafael Domingo, Toward the Spiritualization of Politics, (April 9, 2020).
• Beatrice Jessie Hill, The Deliberative Privacy Principle: Abortion, Free Speech, and Religious Freedom, (William & Mary Bill of Rights Journal, Vol. 28, 2019).
• Jason A. Cade, 'Water is Life!' (and Speech!): Death, Dissent and Democracy in the Borderlands, (Indiana Law Journal, Vol. 96 (Forthcoming)).
• Engy Abdelkader, China's Repression of Uigher Muslims: A Human Rights Perspective in Historical Context, (UCLA Law Journal of Islamic & Near Eastern Law (2020).
• Joseph Davis & Nicholas Reaves, Fruit of the Poisonous Lemon Tree: How the Supreme Court Created Offended-Observer Standing, and Why It's Time for it to Go, (Notre Dame Law Review, Forthcoming).
• Dimitry Kochenov & Uladzislau Belavusau, Same-Sex Spouses: More Free Movement, but What About Marriage? Coman: Case C-673/16, Coman et al. v. Inspectoratul General Pentru Imigrări, Judgement of the Court of Justice (Grand Chamber) of 5 June 2018, (Common Market Law Review 57(1), pp. 227–242, 2020).
• A.T. Mohd, A.M. Yunus & I. Hassan, Ideology, Communication, and Response to Terrorism: A Sharia-based Perspective, (International Journal of Academic Research in Business and Social Sciences, 10(3), 124–130 (2020).

TRO Issued Against Kentucky In-Person Worship Service Restriction

In Tabernacle Baptist Church, Inc. of Nicholasville, Kentucky v. Beshear, (ED KY, May 8, 2020), a Kentucky federal district court issued a state-wide temporary restraining order enjoining the state of Kentucky from enforcing the governor's COVID-19 ban on mass gatherings with respect to in-person religious services that comply with applicable social distancing and hygiene guidelines. The court said in part:

The prohibition on mass gatherings is not narrowly tailored as required by Lukumi. There is ample scientific evidence that COVID-19 is exceptionally contagious. But evidence that the risk of contagion is heightened in a religious setting any more than a secular one is lacking. If social distancing is good enough for Home Depot and Kroger, it is good enough for in-person religious services which, unlike the foregoing, benefit from constitutional protection.

First Liberty issued a press release announcing the decision.

6th Circuit Enjoins Ban On In-Person Worship Services

In Roberts v. Neace, (6th Cir., May 9, 2020), the U.S. 6th Circuit Court of Appeals issued an injunction barring enforcement pending appeal of Kentucky Governor Andrew Beshear's COVID-19 order banning in-person church services at Maryville Baptist Church. A week ago, in another opinion, the same court barred the ban on drive-in services. The court now noted:

In the week since our last ruling, the Governor has not answered our concerns that the secular activities permitted by the order pose the same public-health risks as the kinds of in-person worship barred by the order. 

Earlier in its opinion, the court explained:

The orders allow “life-sustaining” operations and don’t include worship services in the definition. And many of the serial exemptions for secular activities pose comparable public health risks to worship services. For example: The exception for “life-sustaining” businesses allows law firms, laundromats, liquor stores, gun shops, airlines, mining operations, funeral homes, and landscaping businesses to continue to operate so long as they follow social-distancing and other health-related precautions.... But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of the other services. 

Keep in mind that the Church and its congregants just want to be treated equally....  The Governor has offered no good reason for refusing to trust the congregants who promise to use care in worship in just the same way it trusts accountants, lawyers, and laundromat workers to do the same.

Come to think of it, aren’t the two groups of people often the same people—going to work on one day and going to worship on another? How can the same person be trusted to comply with social-distancing and other health guidelines in secular settings but not be trusted to do the same in religious settings?

... Nor does it make a difference that faith-based bigotry did not motivate the orders. The constitutional benchmark is “government neutrality,” not “governmental avoidance of bigotry.”

Liberty Counsel issued a press release announcing the decision.

White House Views CDC Reopening Guidelines As Infringements On Religious Liberty

New York Times reports today that the White House has rejected proposed CDC Guidelines for reopening schools, businesses and houses of worship.  A significant part of the White House objections focused on religious liberty concerns. The Times said in part:

... White House and other administration officials rejected the recommendations over concerns that they were overly prescriptive, infringed on religious rights and risked further damaging an economy that Mr. Trump was banking on to recover quickly. One senior official at the Department of Health and Human Services with deep ties to religious conservatives objected to any controls on church services.

“Governments have a duty to instruct the public on how to stay safe during this crisis and can absolutely do so without dictating to people how they should worship God,” said Roger Severino, the director of the Department of Health and Human Services’ Office for Civil Rights, who once oversaw the DeVos Center for Religion and Civil Society at the Heritage Foundation....

Particularly contentious were the C.D.C.’s recommendations for churches and other houses of worship. Mr. Severino vocally opposed them.

“Protections against religious discrimination aren’t suspended during an emergency,” he said in a statement on Thursday. “This means the federal government cannot single out religious conduct as somehow being more dangerous or worthy of scrutiny than comparable secular behavior.”

The recommendations for churches include encouraging all congregants to wear cloth face coverings when inside the building, offering video streaming or drive-in options for services and considering “suspending use of a choir or musical ensemble” during services. It also urges churches to consider “temporarily limiting the sharing of frequently touched objects,” like hymnals, prayer books and passed collection baskets....

In one version of the draft guidance, the section titled “Interim Guidance for Communities of Faith” was left blank, with a note in capital letters referring to multiple federal agencies that have to come to agreement. But another version included the guidance for faith communities with the caveat that it “is not intended to infringe on First Amendment rights as provided in the U.S. Constitution.”

“The federal government may not prescribe standards for interactions of faith communities in houses of worship,” the second version states. “C.D.C. offers these suggestions that faith communities may consider and accept or reject.”

White House National Day of Prayer Service Held Yesterday

The White House has released the transcript of the final 35 minutes of the National Day of Prayer Service held in the White House Rose Garden yesterday. Video of the full 47-minute service, which included remarks and prayers from numerous faith leaders, as well as remarks from the President, the First Lady and the Vice President, is available in full from C-SPAN at this link.

Church Lacks Standing To Challenge State's Insurance Coverage Mandate

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, May 6, 2020), a Washington federal district court refused to grant a preliminary injunction to a church that objects to Washington's SB 6219 which requires all health insurance plans to cover all FDA-approved contraceptive products. The court concluded that the church lacks standing to pursue the claim, saying in part:

Cedar Park has failed to establish that any injury is fairly traceable to SB 6219. When Cedar Park needed to renew its health insurance plan on September 1, 2019, there was no product in the marketplace that complied with Cedar Park’s preferred requirements. Cedar Park has failed to establish that this absence of a product was because of SB 6219. In fact, Cedar Park’s previous plan did not conform to its beliefs despite SB 6219 not having legal effect when Cedar Park purchased that plan. Now, Providence offers what appears to be an acceptable product despite the continued applicability of SB 6219. Thus, Cedar Park has failed to establish an injury or an injury that is fairly traceable to SB 6219.

Yesterday's National Day of Prayer Proclamation

Missed in the flood of developments, yesterday was National Day of Prayer. Here is the full text of President Trump's Proclamation which focused in large part on the COVID-19 crisis, saying in part:

Today, as much as ever, our prayerful tradition continues as our Nation combats the coronavirus.  During the past weeks and months, our heads have bowed at places outside of our typical houses of worship, whispering in silent solitude for God to renew our spirit and carry us through unforeseen and seemingly unbearable hardships.  Even though we have been unable to gather together in fellowship with our church families, we are still connected through prayer and the calming reassurance that God will lead us through life’s many valleys.  In the midst of these trying and unprecedented times, we are reminded that just as those before us turned to God in their darkest hours, so must we seek His wisdom, strength, and healing hand.  We pray that He comforts those who have lost loved ones, heals those who are sick, strengthens those on the front lines, and reassures all Americans that through trust in Him, we can overcome all obstacles....

I encourage all Americans to observe this day, reflecting on the blessings our Nation has received and the importance of prayer, with appropriate programs, ceremonies, and activities in their houses of worship, communities, and places of work, schools, and homes consistent with the White House’s “Guidelines for Opening up America Again.”

Church Sues Maine Governor Over COVID-19 Restrictions

A lawsuit was filed on Tuesday in a Maine federal district court challenging Maine Governor Janet Mills' COVID-19 Order that restricts in-person religious services.  The complaint (full text) in Calvary Chapel of Bangor v. Mills, (D ME, filed 5/5/2020), alleges in part:

Calvary Chapel seeks a TRO restraining enforcement against Calvary Chapel of the various COVID-19 orders issued by Governor Mills and other State officials purporting to prohibit Calvary Chapel, on pain of criminal sanctions, from gathering in person at Calvary Chapel for worship services, regardless of the number of individuals present or whether Calvary Chapel meets or exceeds the social distancing and hygiene guidelines pursuant to which the State disparately and discriminatorily allows so-called “essential” commercial and non-religious entities (e.g., liquor stores, marijuana dispensaries, warehouse clubs, and ‘big box’ stores) to accommodate large crowds and masses of persons without scrutiny or numerical limit.

Bangor Daily News reports on the lawsuit.

Kentucky Governor Sued By Church and State AG Over COVID-19 Restrictions On Services

A church filed suit yesterday in a Kentucky federal district court challenging Kentucky Governor Andrew Beshear's COVID-19 Orders which bans in-person religious services but allows businesses categorized as "life-sustaining" to remain open with proper social distancing. The complaint (full text) in Tabernacle Baptist Church, Inc. of Nicholasville, Kentucky v. Beshear, (ED KY, filed 5/6/2020) alleges in part:

The exception in Governor Beshear’s order for “life-sustaining” businesses allows shopping malls, grocery stores, hardware stores, law firms, laundromats, liquor stores, and gun shops to continue to operate without fear of state police taking adverse action against participants in such endeavors, so long as they follow social-distancing and other health-related precautions. Businesses allowed to operate (like retail stores, for instance) have no numerical limitations or other restrictions that would cap the number of people who can gather together indoors. Defendants have thus deemed it safe to walk down an aisle in a grocery store, but not an aisle between pews, and to interact with a delivery woman, but not with a minister.

Kentucky Attorney General Daniel Cameron announced that he has filed a complaint (full text of complaint) seeking to intervene as a plaintiff opposing the Governor's Orders.  In his announcement, the Attorney General said in part:

The Governor continued his arbitrary and unlawful targeting of faith-based groups when he announced last week that some businesses, including dog groomers, horse races, manufacturers, and car dealerships, can reopen as early as May 11, nine days before houses of worship can reopen.  The law requires religious services to be treated no differently than secular activity, as long as those participating follow appropriate Centers for Disease Control (“CDC”) recommendations.

Thus a Republican state attorney general is pitted against a Democratic governor in federal court. WKYT News reports on the lawsuit.

Churches Sue Michigan Governor Over COVID-19 Orders Despite Their Exemption From Penalties

A group of churches and clergy yesterday filed suit in a Michigan federal district court challenging on a wide variety of state and federal constitutional grounds the stay-at-home orders of Michigan's Governor Gretchen Whitmer. These orders do not exempt churches, but do provide that they are not subject to any penalty for violating the restrictions.  The complaint (full text) in Word of Faith Christian Center Church v. Whitmer, (WD MI, filed 5/6/2020) alleges in part:

7.  EO   2020-70   continues   to   prohibit   gatherings   of   two   or   more individuals, including at churches, thereby denying them the ability to hold worship services and otherwise carry out their ministry functions until May 28, 2020.

8.  While EO 2020-70 states that “neither a place of religious worship nor its owner is subject to penalty under section 20 of this order for allowing religious worship at such place,” nothing in this provision applies to individuals attending a place or worship as clergy or congregants and does not apply to Plaintiffs.

9. A  promise  to  not  subject  a  geographic  location or  its  “owner”  to  the  criminal penalty under  EO  2020-70 merely  adorns  the  constitution  with  a  fig  leaf  and does not protect individuals or change the clear language of the order prohibiting any   religious services   or   other   ministry functions   at   a   church   or   religious  organization.

M Live reports on the lawsuit.

Church's Challenge To California Stay-At-Home Orders Is Rejected

In Cross Culture Christian Center v. Newsom, (ED CA, May 5, 2020), a California federal district court refused to enter a temporary restraining order against enforcement of state and county COVID-19 stay-at-home orders. The orders were challenged by a church wishing to hold in-person services. Rejecting plaintiff's free exercise claim, the court held that the orders are neutral laws of general applicability subject only to rational basis review.

Supreme Court Will Broadcast Contraceptive Mandate Case Arguments Today In Real Time

Beginning at 10:00 am (EDT) this morning, the U.S. Supreme Court will hear consolidated oral arguments in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania  (SCOTUSblog case page) and Trump v. Pennsylvania (SCOTUSblog case page). In the case, the 3rd Circuit upheld a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding exemptions under the Affordable Care Act for employers with religious or moral objections to contraceptive coverage. Little Sisters of the Poor were intervenors in the 3rd Circuit case. (See prior posting.)  Under the Supreme Court's special procedures for arguments during the COVID-19 crisis, arguments will be conducted via teleconference which will be broadcast live by C-Span at this link.

Court Refuses To Dismiss Catholic School Teacher's Suit On Church Autonomy Grounds

In Payne-Elliott v. Roman Catholic Archdiocese of Indianapolis, Inc., (IN Super. Ct., May 1, 2020), an Indiana trial court refused to dismiss a lawsuit against the Catholic Archdiocese brought by a teacher who claims that the Archdiocese interfered with his contractual relationship with Cathedral High School, an independent school that had a relationship with the Archdiocese. The teacher was ordered to be fired by a directive from the Archdiocese issued after the teacher entered a same-sex marriage. The school feared that if it did not comply, the Archdiocese would no longer recognize it as a Catholic institution. The Archdiocese argued that the lawsuit should be dismissed under the "church autonomy" doctrine. The court said in part:

In civil dispute involving church as party, the court has jurisdiction to resolve the case if it can be done without resolving an ecclesiastical controversy. The court can avoid the religious controversy by deferring to the highest authority within the ecclesiastical body....

... [T]his Court cannot determine that the directive by the Archdiocese to terminate Payne-Elliott was made by the highest authority in the ecclesiastical body of Cathedral or of the Roman Catholic Church.“

The court also questioned whether the case involved an ecclesiastical controversy at all:

... [A] letter from the President and Chairman of the Board of Cathedral elaborates as to ”What is at stake?” Therein, Cathedral states: ”Furthermore, Cathedral would lose its 501(c)(3) status thus rendering Cathedral unable to operate as nonprofit school." This rational for firing Payne-Elliott is important,... If Payne-Elliott was terminated by Cathedral for an economic benefit to Cathedral at the direction of the Archdiocese, then that is different matter than Catholic doctrine.

The court also refused to accept several other grounds for dismissal put forward by the Archdiocese.  Indiana Lawyer reports on the decision.

Trump On COVID-19 Restrictions On Worship Services

On Sunday, President Trump answered questions for nearly two hours at a Fox News Virtual Town Hall, televised from the Lincoln Memorial in Washington, D.C. (Transcript of full Town Hall.) Here is what the President had to say about state restrictions on in-person worship services:

VIEWER:  Hi, Mr. President.  My husband and I both work at our local church, and I think a lot of us churchgoers are just wondering when we might be able to get back to an in-person church service.  Do you have any idea when this might be?

THE PRESIDENT:  I hope it’s going to be very soon, because I’m seeing things that I don’t like seeing.  I see some churches — they are literally staying in their car with the window closed.  I guess it comes out through the radio, the service.  And they were getting arrested, and they’re sitting in a car, and the cars are even far away.  And they say, “Close your windows.”  So it has to come in electronically, and I’m saying, “Why can’t they do that?”

Or they’ll go in a field, some field, and they’ll be — they’ll have a good minister, pastor, or could be a rabbi, could be a person of faith, and what happens is, in some places — not in all places — I would say in most places they really sympathize.  But I do.

And I’ve been listening to services over the last four or five weeks.  Some very, very good people.  And everybody knows who I’ve been listening to.  And we go different person.  Last week it was Cardinal Dolan at St Patrick’s Cathedral, a place I’m very familiar with.  But we’ve had pastors and ministers.

I will say this: It’s wonderful to watch people over a laptop, but it’s not like being at a church.  And we have to get our people back to churches, and we’re going to start doing it soon.

Q    The Attorney General sent a memo directing U.S. attorneys to be on the lookout for health restrictions that could interfere with constitutional rights.  There are a lot of people who cheered that because, you know, they do want to go back to church, and as you’re talking about.  But there are others who fear he might be encouraging people to do things that might be unsafe at the time when some states are going up.

THE PRESIDENT:  Yeah.  No, he’s not — well, there’s not too many states that I know of that are going up.  Almost everybody is headed in the right direction....

South African Court Upholds COVID-19 Ban Over Objections of Mosque and Its Imams

Challenges to COVID-19 Orders by houses of worship are not limited to the United States.  In Mohamed v. President of the Republic of South Africa, (SA High Ct., April 30, 2020), a South African trial court judge rejected a challenge to the country's lock down order brought by a mosque and two of its imams and worshipers. The Order, issued under the Disaster Management Act 2002, effectively required all houses of worship to be closed down. The court described the claims being asserted:

According to the applicants, they believe it is obligatory to perform the five daily prayers in congregation and at mosque. Although they admit that their views are not held by the majority of Muslims throughout the country, they claim that the Lockdown Regulations violate their constitutional rights to freedom of movement, freedom of religion, freedom of association (including religious association) and the right to dignity....

... [A]pplicants seek, not just an order exempting them from the restrictions placed on congregational worship, but all persons. 

Section 36 of South Africa' Constitution provides:

The rights in the Bill of Rights may be limited only in terms of law of general application to the extent that the limitation is reasonable and justifiable in an open and democratic society based on human dignity, equality and freedom, taking into account all relevant factors....

The court concluded:

This pandemic poses a serious threat to every person throughout South Africa and their right to life, dignity, freedom of movement, right to access healthcare and their right to a clean, safe and healthy environment. In a country where we are dominated by so much poverty, where people don’t have access to basic amenities such as clean running water, housing, food and healthcare, the potential risk to those households poses a further threat which places an additional burden on the Government to combat – the risk then, in light of those circumstances rises exponentially....

To the extent that the Government has put together its Task Team, has consulted exhaustively with them to ensure the safety of its citizens in order to “flatten the curve” and prevent an already fragile health system from being overwhelmed, I cannot find that the restrictions imposed are either unreasonable or unjustifiable and thus the application must fail.

GroundUp reports on the decision.

DOJ Files Statement of Interest Supporting Church's Challenge To Virginia's COVID-19 Restrictions

The Department of Justice announced yesterday that it has filed a Statement of Interest supporting plaintiff in Lighthouse Fellowship Church v. Northam.  The suit seeks to enjoin the state of Virginia from enforcing its COVID-19 Order limit on church services. The order limits religious gatherings to ten people. (See prior posting.)  By filing its Statement of Interest before the state of Virginia was required to file its answer to the complaint, DOJ was able to avoid taking a position on several important questions. DOJ's Statement of Interest (full text) contends in part:

This case ... involves important questions of how to balance the deference owed to public officials in addressing a pandemic threatening the health and safety of the public with fundamental constitutional rights. For purposes of this filing, the United States does not take a position on the ultimate question of whether the Commonwealth may have a legally sufficient justification for treating Plaintiff differently from non-retail businesses or other permitted assemblies that may be comparable. The Commonwealth has not yet responded to Plaintiff’s allegations that it permits non-retail businesses, such as law or accounting offices, to gather in numbers greater than ten so long as they use social distancing. Likewise, the Commonwealth has not yet responded to Plaintiff’s allegations that various comparable secular gatherings are permitted. Based on the materials before the Court, Plaintiff has demonstrated a likelihood of success on the merits of its claim under the Free Exercise Clause of the U.S. Constitution that the Commonwealth’s executive orders have prohibited religious gatherings at places of worship, even with social distancing and personal hygiene protocols, while allowing comparable secular gatherings to proceed with social distancing. It thus becomes the Commonwealth’s burden to demonstrate that it has compelling reasons to treat Plaintiff differently than similar non-religious businesses, and that it has pursued its objectives through the least restrictive means. Because the Commonwealth has not yet filed any response, it has not satisfied its burden.

New York Post reports on DOJ's filing.  On Sunday, Virginia's Governor Northram filed a Notice of Intent To File A Response, asking the court to wait for that before deciding the case. On Friday, the court had issued a 33-page opinion denying a Temporary Restraining Order. Lighthouse Fellowship Church v. Northam, (ED VA, May 1, 2020).
[UPDATED]

Court Rejects Challenge To Illinois 10-Person Limit On Religious Services

In Cassell v. Snyders, (ND IL, May 3, 2020), an Illinois federal district court upheld against constitutional attack Illinois Governor J.R. Pritzker's COVID-19 Order which, as amended after the filing of this lawsuit, allows religious worship services of up to ten people if they comply with social distancing precautions. In denying plaintiffs injunctive relief, the court said in part:

The Court is mindful that the religious activities permitted by the April 30 Order are imperfect substitutes for an in-person service where all eighty members of Beloved Church can stand together, side-by-side, to sing, pray, and engage in communal fellowship. Still, given the continuing threat posed by COVID-19, the Order preserves relatively robust avenues for praise, prayer and fellowship and passes constitutional muster. Until testing data signals that it is safe to engage more fully in exercising our spiritual beliefs (whatever they might be), Plaintiffs, as Christians, can take comfort in the promise of Matthew 18:20—“For where two or three come together in my name, there am I with them.” ...

Ultimately, then, the Court concludes that the April Order qualifies as a neutral, generally applicable law. It therefore withstands First Amendment scrutiny so long as “it is supported by a rational basis.” ... Given the importance of slowing the spread of COVID-19 in Illinois, the Order satisfies that level of scrutiny, and Plaintiffs do not seriously argue otherwise. As a result, the Court finds that Plaintiffs’ Free Exercise claim is unlikely to succeed on the merits.

The court also rejected state RFRA and other state law challenges. WTTW News reports on the decision.

Priest Sues Challenging New Jersey COVID-19 Order

Last week, a New Jersey Catholic priest filed suit challenging New Jersey Governor Phil Murphy's COVID-19 Order which has led to the closure of all Catholic churches in the state. The complaint (full text) in Robinson v. Murphy, (D NJ, filed 4/30/2020), alleging violations of the 1st and 14th Amendments, seeks a temporary restraining order preventing the state from imposing different restrictions on religious gatherings than it does on gatherings at "essential" commercial businesses.  NJ101.5 News reports on the lawsuit.

UPDATE: On July 23, plaintiffs filed a third amended complaint (full text) in the case. Thomas More Society issued a press release announcing the filing.

Pastors Challenge Maryland's COVID-19 Limits On Worship Services

As reported by the Baltimore Sun:

Maryland politicians, pastors and business owners banded together Saturday afternoon to file a sweeping federal lawsuit aimed at ending restrictions enacted by Maryland Gov. Larry Hogan in response to the coronavirus.

The lawsuit argues that the governor’s orders banning large gatherings and closing most businesses violate constitutional and federal laws protecting commerce, freedom of assembly, the right to protest and the right to practice their religion.

The 56-page complaint (full text) in Antietam Battlefield KOA v. Hogan, (D MD, filed 5/2/2020) includes nine pastors and a deacon among the 19 plaintiffs.It alleges in part that the Governor's ten-person limit on gatherings for religious worship violates plaintiffs free exercise rights and violates the Establishment Clause by dictating the manner in which Christians and churches must worship.

Recent Articles of Interest

From SSRN:

• Steven Douglas Smith, Why School Prayer Matters, (San Diego Legal Studies Paper No. 20-447 (2020)).
• Robin S. Maril, The Religious Freedom Restoration Act, Trinity Lutheran, and Trumpism: Codifying Fiction with Administrative Gaslighting, (Northwestern Journal of Law and Social Policy, Vol. 16, No. 1, 2020).
• Stephanie H. Barclay, The Historical Origins of Judicial Religious Exemptions, (Notre Dame Law Review (forthcoming 2020)).
• Greer Donley, Beatrice Chen & Sonya Borrero, The Legal and Medical Necessity of Abortion Care Amid the COVID-19 Pandemic, (Journal of Law & the Biosciences, Forthcoming).
• Tifani Silveria, Whole Woman's Health: Not the 'Whole' Story, (Regent University Law Review, Vol. 32, No. 1, 2019).
• Nancy J. Knauer, The LGBT Equality Gap and Federalism, (American University Law Review, Vol. 70, No. 1, 2020).
• David S. Miller, et al, The FFCRA and CARES Act: Key Provisions Affecting Nonprofit Organizations (April 23, 2020).
• Philip Hackney, Political Justice and Tax Policy: The Social Welfare Organization Case, (Texas A&M Law Review, Vol. 8, 2021, Forthcoming).

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

• Ioana Cismas & Ezequiel Heffes, Not the Usual Suspects: Religious Leaders as Influencers of International Humanitarian Law Compliance, (Yearbook of International Humanitarian Law Vol. 22: 70 Years Geneva Conventions: Past, Present and Future (2020 Forthcoming)).
• Giancarlo Anello, Homo Religiosus in a Globalized World: How Religious Individuals are Actors of Global Law, (April 4, 2020).
• Margaret Muga & Joshua Malidzo Nyawa, Judicial Protection of the Minority Religious Beliefs: A Commentary on the Rastafarian and Mohammed Fugicha (Hijab) Judgments, (March 28, 2020).
• Shaikh Ahmad, Review on Triple Talaq Within the Islamic Legislations, (March 28, 2020).
• Shaikh Ahmad, Muslim Women's Rights Regarding Marriage and Divorce In the Context of the Islam Religion, (March 31, 2020).
• Shaikh Ahmad, Analysis of the Triple-Talaq Within the Framework of Judiciary in India With Reforms of Sharia Law, (April 2, 2020).

From SmartCILP:

• Shams Al Din Al Hajjaji, A Tale of Two Theories: Government By Judiciary Theory versus Guardianship of the Jurist Theory, 33 Emory International Law Review 503-533 (2019).

President Proclaims May As Jewish American Heritage Month

Last week, President Trump issued a Proclamation (full text) declaring May 2020 as Jewish American Heritage Month. The Proclamation reads in part:

This month, we reaffirm our commitment to never compromise our steadfast support for the Jewish community, our rejection of anti-Semitic bigotry, and our disdain for malicious attacks of hatred.  Jewish Americans strengthen, sustain, and inspire our country through dedication to family, respect for cherished traditions, and commitment to the values of justice and equality that unite Americans of every faith and background.

Administrative Offices of New Orleans Archdiocese File For Bankruptcy

On Friday, the Catholic Archdiocese of New Orleans announced that the Administrative Offices of the Archdiocese have filed for Chapter 11 bankruptcy reorganization, saying in part:

The move was necessitated by the growing financial strain caused by litigation stemming from decades-old incidents of clergy abuse as well as ongoing budget challenges. The unforeseen circumstances surrounding COVID-19 have added more financial hardships to an already difficult situation.  

This filing only affects the Archdiocesan administrative offices.... The Archdiocese’s action will not affect individual church parishes, their schools, schools run by the various religious orders, or ministries of the church. These offices will continue daily ministry as usual....

The intention of the filing is to allow time to develop a reorganization plan detailing how available assets and insurance coverage will be used to settle outstanding claims and to negotiate reasonable settlements while enabling the administrative offices to continue and emerge better prepared for the future. This reorganization will also allow the Archdiocese to address remaining clergy abuse cases in a way that will allow funds to go directly to victims instead of funding prolonged, costly litigation.

6th Circuit Allows Drive-In Church Services While Appeal Is Pending

In Maryville Baptist Church, Inc. v. Beshear, (6th Cir., May 2, 2020), the U.S. 6th Circuit Court of Appeals granted an injunction pending appeal against enforcement of the governor's COVID-19 Order insofar as it prohibits drive-in services at the Maryville Baptist Church. However the Church must comply with the social distancing and hygiene guidelines for so-called "life-sustaining" organizations. A Kentucky federal district court had refused to grant a TRO in order to permit in-person services (see prior posting). The Court of Appeals would not extend its injunction to in-person services either.  In allowing drive-in services, the 6th Circuit said in part:

The exception for “life-sustaining” businesses allows law firms, laundromats, liquor stores, and gun shops to continue to operate so long as they follow social-distancing and other health-related precautions.... But the orders do not permit soul-sustaining group services of faith organizations, even if the groups adhere to all the public health guidelines required of essential services and even when they meet outdoors.

The court added:

 As individuals, we have some sympathy for Governor DeWine’s approach—to allow places of worship in Ohio to hold services but then to admonish them all (we assume) that it’s “not Christian” to hold in-person services during a pandemic.

Liberty Counsel issued a press release announcing the decision.

Israel's High Court Invalidates Ban On Bringing Chametz Into Hospitals During Passover

Jerusalem Post reports that yesterday Israel's High Court of Justice, in a 2-1 decision, invalidated the Chief Rabbinate's ban on patients and visitors bringing food that is not kosher for Passover (chametz) into patients' hospital rooms.  It also invalidated the order to search those entering hospitals during Passover for chametz. According to the paper's report:

In a majority ruling, judges Uzi Vogelman and Ofer Grosskopf wrote that the ban harms the fundamental rights for the autonomy of the individual and freedom of religion.

They wrote that it also harms the dignity of patients and their right to self-determination and the exercise of their own choices and preferences.

Nativity Scene On Indiana County Building Property Held Unconstitutional

In Woodring v. Jackson County, Indiana, (SD IN, April 30, 2020), an Indiana federal district court held that the Establishment Clause is violated by a nativity scene displayed on the lawn of an historical courthouse that now houses county offices.  The court first concluded that plaintiff has standing to sue:

Her injury is the direct contact she must endure with a display that she alleges violates the Establishment Clause in the course of exercising her rights as a citizen of Jackson County.

Moving to the merits of the claim, the court said in part:

Here ... the Nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers....

Nevertheless, two facts persuade the Court that this Nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display.... Santa and the carolers are placed to the far side of the display, away from the more centralized Nativity display, which straddles the sidewalk subdividing the lawn.... The crèche is the vast majority of the display ... making it appear much larger than the solitary Santa figure.... The carolers have been placed in the back of the display, lessening the attention they would draw from an observer....

The second fact that convinces the Court that the Nativity scene would give the impression of a religious endorsement is the scene’s history. For many years, it was only a Nativity scene, with no secular elements at all.... But in 2018, in response to a letter from the Freedom from Religion Foundation questioning the display’s constitutionality, the President of the County Commissioners ... physically moved Santa Claus and his sleigh and reindeer and the carolers to a place nearer the crèche.... The addition of less prominent secular symbols at the fringes of the display is not enough to counteract the impression a reasonable observer would have gotten from seeing the Nativity display placed on the lawn of the Courthouse for nearly 20 years. The Court has no doubt that a sufficient balancing between secular and nonsecular elements could bring this display into harmony with the First Amendment despite its history, but that balancing has not occurred here. Thus, the display fails the endorsement test.

Court Upholds Maryland Hate Crime Statute

In Lipp v. State of Maryland, (MD Ct. Special Appeals, April 30, 2020), a Maryland state appellate court upheld the constitutionality of a Maryland statute which outlawed the destruction of property where there is evidence of animosity toward a group because of race, religious belief, sexual orientation, gender, disability, national origin or homelessness. Defendant had been convicted of spraying anti-Semitic, anti-Black and anti-gay graffiti on a school building.  Rejecting defendant's constitutional arguments, the court said in part:

Appellant may have had a First Amendment right to spray paint on his own property the offensive words and symbols used here. Once he combined that action with a criminal act, however, in this case defacing property of another, his criminal activity was not protected by the First Amendment.

Chabad's Messianist Movement Loses Battle Over Control of Synagogue Space

In a dispute that has been litigated since 2004, a New York state trial court in
Agudas Chasidei Chabad of the United States v. Congregation Lubavitch, Inc., (Civil Ct. City of NY, April 28, 2020), ruled that the formal owners of the headquarters of the Chabad movement in the United States may eject from its buildings a faction of the movement that has conducted religious services in the basement of the headquarters building for over 25 years. In its 144-page opinion, the court, relying on neutral principles of civil law rather than religious doctrine, gave a victory to the portion of the movement that rejects claims that the late rebbe, Menachem Mendel Schneerson who died in 1994, should be referred to as the Messiah. The court said in part:

Rebbe Menchem Mendel Schneerson determined the power and authority granted to the owners of these properties, not this Court. His intentions and only his intentions were made clear by granting full authority to the owners, through Boards of Trustees, not the congregants or the Gabboim, over the religious corporation’s real property and personal property. This Court has the legal obligation to enforce the bylaws, religious corporation law and subsequent amendments to their contents. Just as the congregants had no legal rights to challenge the decision of the Board of Trustees to demolish a church, the congregation and the Gabboim have no legal rights to continue in possession after the Board of Trustees granted authorization tocommence these legal proceedings to recover possession of the subject premises by proper board action.

Anash.org reports on the decision.

California Emergency Orders Upheld Against Free Exercise Challenge

In Gish v. Newsom, (CDCA, April 23, 2020), a California federal district court refused to issue a temporary restraining order against state-wide and county-wide COVID-19 Orders in a suit brought by a group of pastors in the Inland Empire region of southern California. (See prior posting.) Plaintiffs sought an injunction to prevent enforcement of the COVID-19 Orders against Plaintiffs’ engagement in religious services, practices, or activities at which social distancing guidelines of the CDC are followed. In rejecting Plaintiffs' constitutional challenges to the Orders, the court said in part:

When responding to the COVID-19 pandemic ... Defendants “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.’...

Plaintiffs argue that the Orders are underinclusive of secular activities that may also contribute to the spread of COVID-19 because they allow grocery stores, fast food restaurants, and marijuana dispensaries to remain open.... But these are all essential services: without access to the food and medicines sold at these locations, more citizens would become ill or die.... If the state applies the same rules to in-person religious gatherings ... people will get sick and die from attending religious gatherings just as they are dying from working in grocery stores....

Because the Orders are facially neutral and generally applicable, they are subject to rational basis review..... And they easily survive rational basis....

Companies Enter Consent Decree In EEOC Suit Challenging Head-Covering Policy

The EEOC announced yesterday the entry of a consent decree under which the Memphis (TN)- based Versant Supply Chain, Inc. and the Dallas(TX)-based AT&T Services, Inc. have agreed to pay $150,000 to victims of religious discrimination. The companies had enforced policies that prohibit employees from wearing any head coverings (except knit caps). It refused to make accommodations for religious head coverings such as hijabs. The companies also agreed to make policy changes.

USCIRF Issues 2020 Report On International Religious Freedom

The U.S. Commission on International Religious Freedom yesterday released its 2020 Annual Report (full text) on the status of religious liberty in various countries around the world. Among other developments, USCIRF notes "remarkable progress in Sudan and a sharp downward turn in India."  A press release accompanying release of the Report summarizes its key findings, saying in part:

USCIRF recommends 14 countries to the State Department for designation as “countries of particular concern” (CPCs) because their governments engage in or tolerate “systematic, ongoing, egregious violations.” These include nine that the State Department designated as CPCs in December 2019—Burma, China, Eritrea, Iran, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan—as well as five others—India, Nigeria, Russia, Syria, and Vietnam.

... [USCIRF] also recommends 15 countries for placement on the State Department’s Special Watch List (SWL) for severe violations. These include four that the State Department placed on that list in December 2019—Cuba, Nicaragua, Sudan, and Uzbekistan—as well as 11 others—Afghanistan, Algeria, Azerbaijan, Bahrain, Central African Republic (CAR), Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, and Turkey....

The 2020 Annual Report further recommends to the State Department six non-state actors for designation as “entities of particular concern” (EPCs) for systematic, ongoing, egregious violations. These consist of five groups that the State Department designated in December 2019—al-Shabaab in Somalia, Boko Haram in Nigeria, the Houthis in Yemen, Islamic State in Khorasan Province (ISKP) in Afghanistan, and the Taliban in Afghanistan—plus one other—Hay’at Tahrir al-Sham (HTS) in Syria.

The 104-page report also makes various policy recommendations to the Administration and to Congress.

Attorney General Warns Against COVID-19 Orders That Violate Civil Rights

Attorney General William Barr yesterday issued a Memorandum to the Assistant Attorney General for Civil Rights and to all U.S. Attorneys, titled Balancing Public Safety With the Preservation of Civil Rights. The memo calls for U.S. Attorneys to be on the lookout for state and local COVID-19 orders that infringe constitutional rights and civil liberties. The memo reads in part:

... [E]ven 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. The legal restrictions on state and local authority are not limited to discrimination against religious institutions and religious believers. For example, the Constitution also forbids, in certain circumstances, discrimination against disfavored speech and undue interference with the national economy. If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court.

Liberty Counsel issued a press release announcing the Memorandum.

Study Shows Extent of COVID-19 Restrictions On Religious Services

Pew Research Center yesterday released a study of the extent to which each state has created religious exemptions to COVID-19 distancing orders. The study concludes that ten states prevent all in-person religious gatherings. Sixteen states allow religious gatherings, with no limit on their size. Some of these states have categorized religious worship as an "essential" service. Twenty-one states and D.C. allow religious gatherings of only ten or fewer people. Three states have other kinds of limits.

Church Sues Virginia Governor Over 10-Person Gathering Limit

Suit was filed last week in a Virginia federal district court seeking to enjoin state officials from enforcing COVID-19 related limits on gatherings of more than ten people against Lighthouse Fellowship Church. The 50-page complaint (full text) in Lighthouse Fellowship Church v. Northam, (ED VA, filed 4/24/2020), asks in part:

That the Court issue a Temporary Restraining Order restraining ... Governor Northam [and] all Commonwealth officers ... from enforcing ... the GATHERING ORDERS ... to the extent any such order prohibits religious worship services at Lighthouse, or in-person church services at Lighthouse if Lighthouse meets the social distancing, enhanced sanitization, and personal hygiene guidelines pursuant to which the Commonwealth allows so-called “essential” commercial and non-religious entities (e.g., beer, wine, and liquor stores, warehouse clubs, ‘big box” and ‘supercenter’ stores) to accommodate gatherings of persons without numerical limit.... Lighthouse merely seeks a TRO preventing Lighthouse,its pastor, and its members from being subject to criminal sanctions for having more than 10 people at its worship service on Sunday....

Eastern Shore Post reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Abner S. Greene, Liberalism and the Distinctiveness of Religious Belief, (Forthcoming, 35 Constitutional Commentary (2020)).
• Suhrith Parthasarathy, An Equal Right to Freedom of Religion: A Reading of the Supreme Court’s Judgment in the Sabarimala Case, (Forthcoming, Oxford Human Rights Hub Journal).
• Aaron J. Saiger, State Regulation of Curriculum in Private Religious Schools: A Constitutional Analysis, (in Yeshivas versus the State of New York: A Case Study in Religious Liberty in Education (Jay Greene & Jason Bedrick eds., Rowman & Littlefield) (forthcoming 2020)).
• Matthew Brown, Coronavirus and Church Closures: Will the COVID-19 Gathering Bans Survive Free Exercise Challenges?, (ConLawNOW (Forthcoming)).
• Ryan T. Anderson, On the Basis of Identity: Redefining ‘Sex’ in Civil Rights Law and Faulty Accounts of ‘Discrimination’, (Harvard Journal of Law and Public Policy, Vol. 43, No. 2, 2020).
• Dr. Muhammad Sohail & Ataullah Khan Mahmood, Islamic Criminal Jurisprudence on the Offence of Trafficking in Persons: An Interpretation of Fasad fil Arz and Hadd Offence, (December 31, 2019).
• Raymond H. Brescia, Bahareh Ansari & Hannah Hage, The Legal Needs of Nonprofits: An Empirical Study of Tax-Exempt Organizations and Their Access to Legal Services, (17 Hastings Race & Poverty Law Journal 451 (2020).

From SmartCILP and elsewhere:

• Andrew L., Seidel, Bad History, Bad Opinions: How “Law Offi ce History” is Leading the Courts Astray on School Board Prayer and the First Amendment, 12 Northeastern University Law Review 248-326 (2020).
• Eimi Priddis Yildirim, A Rhetorical Revolution: The Antithesis of the First Amendment, 33 BYU Journal of Public Law 287-319 (2019).
• Jeffrey A. Brauch & Cody Goings, E.S. v. Austria: The Folly of Europe, [Abstract], 5 Journal of Global Justice & Public Policy 83-105 (2019).
• Mark Tushnet, Trump v. Hawaii: "This President" and the National Security Constitution, [Abstract], 2018 Supreme Court Review 1-19.
• Pamela S. Karlan, Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights, [Abstract], 2018 Supreme Court Review 145-177.
• Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, [Abstract], 2018 Supreme Court Review 257-297.

Settlement Reached With Kansas Churches Challenging COVID-19 Limits On Services

After two Baptist churches in Kansas obtained 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 (see prior posting), the governor has reached a settlement with the churches. Hutchinson News reports:

The proposed resolution to the lawsuit filed in U.S. District Court would allow congregations in Junction City and Dodge City to conduct in-person services if attendees complied with safety protocols. It also created a window for the governor to revise her mass-gathering order so it would no longer apply to religious meetings.

Court Says Drive-In Church Services Are Reasonable Compromise For COVID-19 Limits

In First Pentecostal Church of Holly Springs v. City of Holly Springs Mississippi, (ND MS, April 24, 2020), a Mississippi federal district court created guidelines on the extent to which states or localities can limit church services in efforts to prevent the spread of COVID-19. The suit was brought by a church whose indoor Easter service was dispersed by police. The court had previously had before it a widely publicized case from Greenville, MS in which a city sought to ban even drive-in church services. (See prior posting.) In deciding the Holly Springs case, the court said in part:

For reasons which should be obvious, this court is considerably less sympathetic to claims by a church which sought to hold indoor church services involving at least thirty-five congregants than it is to the claims by the church in the Greenville case, which sought to hold services in which the congregants stayed in their vehicles with the windows closed....

In its brief, the Church insists that its members practice “social distancing” during indoor church services, but this strikes this court as being a rather hollow guarantee, given the inherent difficulties involved in policing meetings behind closed doors and the inherent medical uncertainties with regard to what a safe Covid-19 distance actually is in the context of individuals who may be sitting together in the same room for an hour or more....

In the court’s view, allowing drive-in church services involving congregants sitting in vehicles whose windows are closed represents the practical middle ground upon which concerns about religious freedom and the safety of the community may co-exist....

At the same time, this court wishes to be clear that it does not regard the practice of “drive-in” church services as being risk-free. While it may be imagined that many attendees of such services would be family members who have already been exposed to each other, that will not always be the case. Indeed, it seems quite likely that, as with regular church services, many such attendees will be elderly parishioners who require the assistance of friends or non-resident family members to take them to the service.... [T]he Covid-19 virus disproportionately kills elderly individuals, and it may therefore be assumed that, if the holding of such “drive-in” services becomes a nationwide trend, that a significant (and possibly large) number of deaths will result. This court believes that preachers and parishioners would be well advised to take this into consideration when deciding whether or not to hold or attend such services.

While this court therefore does not regard the public policy considerations in this context as being one-sided, the First Amendment right to Free Exercise of religion is sufficiently important that some reasonable accommodations must be made for it. This court concludes that the allowing of drive-in services, with windows closed or slightly cracked open, represents a reasonable accommodation in this context, and it finds a reasonable likelihood ... that allowing such drive-in services is legally required, under either state or federal law.

Negligent Violation of Inmate's Religious Dietary Needs Did Not Violate 1st Amendment

In Mbonyunkiza v. Beasley, (8th Cir., April 24, 2020), the U.S. 8th Circuit Court of Appeals held:

absent evidence that an underlying prison regulation or policy violates the Free Exercise Clause, evidence that a correction official negligently failed to comply with an inmate’s sincerely held religious dietary beliefs does not establish a Free Exercise Clause claim under §1983.

In the case, a Muslim inmate claimed that four times in 257 days, prison kitchen staff served him meals containing pork products. In rejecting plaintiff's claim, the court said in part:

[T]he Supreme Court’s cases, and all the Eighth Circuit Free Exercise decisions our research has uncovered, have involved claims alleging that a statute, or a regulation or policy implementing a statute, unconstitutionally prohibited a sincerely held religious belief or otherwise unduly burdened the free exercise of religion.

By contrast, in this case NCF’s food policies affirmatively accommodate the beliefs of inmates who do not eat pork for religious reasons. Mbonyunkiza does not challenge those policies. Rather, his Supplemental Complaint asserts that defendants are liable in damages because they did not properly implement those policies on certain occasions.

President Trump Issues Message of Good Wishes As Ramadan Begins

The Muslim holy month of Ramadan began yesterday. President Trump issued a message (full text) wishing all Muslims in the U.S. and around the world a blessed and peaceful Ramadan. The message said in part:

Over the past months, we have seen how important the power of prayer can be during challenging times.  Today, as the holy month of Ramadan commences, I pray that those who are observing this sacred time find comfort and reassurance in their faith.

7th Circuit Dismisses Satanist's Challenge To Bigamy, Adultery and Fornication Laws

In Mayle v. State of Illinois, (7th Cir., April 23, 2020), the U.S. 7th Circuit Court of Appeals affirmed the lower court's dismissal a Satanist's challenge to Illinois' laws prohibiting bigamy, adultery, and fornication. The court said in part:

The court correctly dismissed Mayle’s challenge to Illinois’s bigamy laws on preclusion grounds, having already rejected a nearly identical challenge in his earlier federal suit.... Here the parties and issues in the bigamy challenge were identical. Likewise, the court correctly dismissed Mayle’s challenges to Illinois’s adultery and fornication laws for lack of standing. Those laws no longer are enforced, so Mayle could not show a reasonable fear of prosecution....

Atheist Firefighter's Hostile Work Environment Claim Can Proceed

In Queen v. City of Bowling Green, Kentucky, (6th Cir., April 22, 2020), the U.S. 6th Circuit Court of Appeals affirmed a Kentucky district court's denial of defendants' qualified immunity in a suit by a former firefighter who was harassed by his co-workers and supervisors because he is an atheist. The court held that plaintiff's claim of  hostile work environment based on religion is not covered by Kentucky’s Claims Against Local Governments Act. It also held that plaintiff's supervisor is not entitled to qualified immunity on a retaliation claim against him. Friendly Atheist blog discusses the case at greater length.

8th Circuit Upholds Arkansas COVID-19 Ban On Surgical Abortions

In In re Rutledge, (8th Cir., April 22, 2020), the U.S. 8th Circuit Court of Appeals issued a writ of mandamus ordering an Arkansas federal district court to dissolve its temporary restraining order that had invalidated the Governor's COVID-19 related ban on surgical abortions as part of a ban on non-medically necessary surgeries. The appeals court said in part:

Here, the ADH directive, pursuant to the Governor’s Executive Order, was issued in response to the impact of the COVID-19 pandemic in Arkansas. Accordingly, even assuming, arguendo, that the district court correctly interpreted the directive to be an outright ban on all pre-viability surgical abortions in Arkansas, the directive is not subject to constitutional challenge unless it “has no real or substantial relation to” the public health crisis, or “is, beyond all question, a plain, palpable invasion of” a woman’s right to elective abortion. Jacobson, 197 U.S. at 31.... Aside from summarily stating that its conclusion is consistent with Jacobson, the district court failed to apply that requisite framework and, thus, abused its discretion.

Daily Item reports on the decision.

Dioceses In Bankruptcy Challenge Ban On Access To COVID-19 Loans

Catholic News Agency reported yesterday that the Catholic dioceses of Rochester and Buffalo in New York filed suit on April 15 against the U.S. Small Business Administration challenging  denial of access to emergency loans under the recently enacted Paycheck Protection Program.

The $349 billion in emergency loans were part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law by President Trump on March 27.

The bill provided, among other things, short-term relief for small businesses and certain non-profits affected by the disruptions from the coronavirus (COVID-19) pandemic....

An SBA rule, however, stipulated that the funds would not go to bankruptcy debtors. Both the dioceses of Rochester and Buffalo have filed for bankruptcy in the past several months, after being named in hundreds of clergy sex abuse lawsuits filed under New York’ Child Victims Protection Act.

Another Suit Challenges Kentucky Ban On In-Person Church Services

A class-action lawsuit was filed last week in a Kentucky federal district court by three individuals who attended in-person Easter Sunday services at Maryville Baptist Church in Hillview, Kentucky. The in-person services violated Governor Andy Beshear's COVID-19 ban on mass gatherings.  State troopers placed notices on all cars in the church parking lot imposing a 14-day quarantine on those associated with the vehicle attending the service and others in their household. The complaint (full text) in Roberts v. Neace, (ED KY, filed 4/14/2020) alleges a violation of plaintiffs' free exercise rights, alleging in part:

Defendants’ prohibition of any in person church services, in the name of fighting Covid-19, is not generally applicable. There are numerous exceptions to the March 19, 2020 Order, such as an exception for factories, or attending establishments like shopping malls, where far more people come into closer contact with less oversight.

The suit also challenges the governor's travel ban. WTVQ News reports on the lawsuit. A different Kentucky federal district court has refused to restrain enforcement of the ban on mass gatherings. (See prior posting.)

Israeli Court Awards Damages To LGBT Group that Was Refused Service

In a case reminiscent of many pending in the United States, a Magistrate's Court in the Israeli city of Beersheba has awarded damages equivalent to $14,000 plus attorneys' fees in a suit against Rainbow Color, a shop that refused to print posters for a gay rights organization at Ben Gurion University. Times of Israel yesterday reported in part:

“We do not deal with abomination materials. We are Jews!” the shop had said in response to the chapter’s request for an estimate on the posters.

Aguda argued that Rainbow Color had violated the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law Act passed by the Knesset in 2000.

Rainbow Color claimed that its owners, who are religious, are barred from providing assistance to offenders of religious law. In its defense, the owners added the rulings of two Orthodox rabbis who wrote that according to Jewish law the publication of such posters is prohibited.

However the judge ruled:

When their beliefs conflict with a necessity of providing service to all in a public space, the last value holds superior.

Navy Chaplains Given One More Chance To Refile Discrimination Claims

Arnold v. Secretary of the Navy, (D DC, April 21, 2020) is the latest installment in long-running litigation against the U.S. Navy by a group of non-liturgical Protestant chaplains who claim that the Navy discriminated against them.  In a 2018 opinion (which is currently on appeal to the D.C. Circuit), the chaplains' broad challenges to Navy chaplain selection board policies and procedures were rejected, but the court allowed plaintiffs to file a new complaints-- which are at issue here-- claiming discrete instances of individual discrimination, retaliation and constructive discharge. Many of these claims were dismissed under the doctrine of res judicata. The court reluctantly concluded that plaintiffs, with limitations, can file new complaints raising those individual claims. The court said in part:

As demonstrated by this very case, plaintiffs and their counsel persist in filing repetitive and duplicative complaints despite having received lengthy decisions outlining precisely why their systemic challenges fail....

Based on plaintiffs’ actions thus far and their insistence that repetitious filings and forum shopping are mandatory to vindicate their interests, the Court deems it surpassingly likely that absent a pre-filing injunction, the refiling of any surviving claims will almost certainly be broadened to include challenges to the Navy’s selection board policies and procedures that have already been resolved by this Court—in the 2018 opinion and again today.... Consequently, the Court concludes that a narrowly tailored prospective filing restriction is necessary.

The Court will sever the surviving retaliation, constructive discharge, and interference with religious free speech claims. And it will permit plaintiffs to refile those ad hoc claims in this Court or any other appropriate district Court, in individual complaints (not joined with any other plaintiff). However, any plaintiff who wishes to refile his or her claims in any federal court must first seek leave from this Court within thirty days, that is, by not later than May 21, 2020.

Status of Temporary Abortion Bans

Catholic News Agency reviews the status of legal challenges to temporary bans on abortion in COVID-19 orders in various states, saying in part:

Eight states that have enacted temporary bans on abortion during the coronavirus pandemic are contending with legal challenges, and judges have prevented many of the temporary bans from coming into effect.

Judges have so far intervened to allow abortions in some form in Alabama, Arkansas, Oklahoma, Ohio, Texas, Iowa, Louisiana, and Tennessee, after the leaders of those states attempted to classify elective abortions as non-essential procedures.

In Iowa, abortion advocates had filed a lawsuit against the state’s order, but reached an agreement with the state outside of court before the lawsuit could progress.

In Alaska, a move by state officials to “delay” abortions until June has not been legally challenged; and in Mississippi, the state’s order banning all “elective” medical procedures also has not been challenged. Louisiana’s order to stop elective abortions is facing a lawsuit but has not been blocked.

Many states have suspended medical procedures deemed non-emergency or non-essential in an attempt to stem the spread of the virus among healthcare professionals, and to free up medical resources and hospital capacity.

Supposed Church Enjoined From Selling Bleach As Sacrament To Cure COVID-19

On Friday, in United States v. Genesis II Church of Health and Healing, (SD FL, April 17, 2020), a Florida federal district court issued a temporary restraining order against an organization claiming to be a church which was selling a powerful industrial bleach product as a cure for COVID-19 and other serious conditions.  As set out in the government's Complaint (full text) and its Motion for a Temporary Restraining Order (full text) filed April 16, the defendant told the FDA:

We can say cure, heal and treat as a Free Church. Don’t need you [sic] approval or authorization for a Church Sacrament.”... There will be NO corrective actions on our part … You have no authority over us! … Never going to happen.

ARS Technia gives additional background:

Genesis was selling MMS online and describes it as a sacrament. Attempting to purchase the product today leads to an error page that says, "We are currently in prayer!!! During these difficult and trying times, we are in prayer and seeking The LORD's wisdom & guidance. Please pray for us."

Genesis' main website calls the organization "a non-religious church" that aims to "restore health" to the world and which "was formed for the purpose of serving mankind and not for the purpose of worship."

Church Property Is Held In Constructive Trust For Parent Episcopal Diocese

In Protestant Episcopal Church v. Church of the Messiah, 2020 Va. Cir. LEXIS 52 (VA Cir. Ct., Feb. 24, 2020), which just became available on Lexis, a Virginia state trial court held that church property belongs to the Diocese of the Protestant Episcopal Church and not to the break-away parish, Church of the Messiah that adopted a "charismatic" worship tradition.  The court said in part

The Parish clearly breached its fiduciary obligation to the Diocese when its Rector and its Vestry disregarded their oath to conform to the Episcopal denomination and instead led the congregation in a vote to disassociate from the Diocese and the Episcopal Church.... In this case, the Parish stood in a fiduciary relation to the Diocese and the Episcopal Church and enjoyed title to the Property for the benefit of members of the Episcopal denomination. Over time, it appears that the members of the Parish lost sight of this relationship, instead envisioning themselves as having some personal ownership interest in the Property by virtue of their contributions to the extensive improvements and maintenance through the years. When the leaders chose to remain loyal to the congregation in its dilemma between the members' personal beliefs and the policies of the Episcopal church, the leadership was obligated to resign. Instead, they abused the authority derived from their position in the Episcopal Church by attempting to remove the Property from the Episcopal congregation for whose benefit it was held in trust and keep it for the use and benefit of another congregation entirely....

The new congregation for whose benefit the Property is currently held bears little resemblance to the mission formed by the charter members, who, when they became unsatisfied with their churches' religious practices, were willing to leave the security and comfort of their church buildings to worship in accordance with their beliefs. By attempting to "acquire an interest" in the Property on behalf of this new congregation, the leadership of the Parish breached their fiduciary duty, and, accordingly, the Court will impose a constructive trust.