NLRB Reduces Its Jurisdiction Over Religious Colleges

In Bethany College, (NLRB, June 10, 2020), the National Labor Relations Board overruled its 2014 decision in Pacific Lutheran that had expanded NLRB jurisdiction over religiously-affiliated colleges.  The NLRB said in part:

[W]e now hold that the Board does not have jurisdiction over matters concerning teachers or faculty at bona fide religious educational institutions. We further hold that the test set forth in the D.C. Circuit’s Great Falls case is the appropriate test.... Under this bright-line test, the Board will leave the determination of what constitutes religious activity versus secular activity precisely where it has always belonged: with the religiously affiliated institutions themselves, as well as their affiliated churches and, where applicable, the relevant religious community. Applying the Great Falls test will remove any subjective judgments about the nature of the institutions’ activities or those of its faculty members.... It will prevent the type of intrusive inquiries that the Supreme Court prohibited in Catholic Bishop.... Finally, and importantly, it will provide the Board with a mechanism for determining when self-identified religious schools are not, in fact, bona fide religious institutions, therefore protecting the rights of employees working for those institutions.

[Thanks to Steven H. Sholk for the lead.]

Satanist's 1st Amendment Challenge To Missouri Abortion Law Fails

In Doe v. Parson, (8th Cir., June 9, 2020), the U.S. 8th Circuit Court of Appeals rejected claims by a member of the Satanic Temple that Missouri's abortion informed consent law violates her 1st Amendment rights.  Plaintiff argues that the state's informed consent booklet violates the Establishment Clause by promoting "Catholic dogma" about when life begins. The court rejected that argument, saying in part:

Some religions, including Catholicism, embrace the view that life begins at conception. Others, like Doe’s Satanism, do not. Any theory of when life begins necessarily aligns with some religious beliefs and not others. So under Doe’s theory, Missouri’s only option would be to avoid legislating in this area altogether.

The court also rejected plaintiff's argument that the requirement that she certify that she has had an opportunity to view and ultrasound and the informed consent booklet violates her free exercise rights. The court said in part:

Doe makes no argument ... that the informed-consent law is anything other than “neutral” and “generally applicable.”

Ban On Sex Offender Attending Church Services Is Upheld

In State of Washington v. Duschene, (WA App., June 8, 2020), a Washington state appellate court upheld the sentence and community custody provisions imposed on a convicted sex offender.  Among other things, defendant argued that the condition that prohibits him from entering areas where children's activities regularly occur violates his 1st Amendment free exercise rights because this prohibits him from attending church services.  The court disagreed, saying in part:

A burden on the exercise of religion ... must withstand strict scrutiny.... Once the complaining party establishes a coercive effect, the burden of proof shifts to the government to show the restrictions serve a compelling state interest and are the least restrictive means for achieving that interest....

The record shows that DuSchene has regularly attended church in the past, and that he considers himself a Christian. But he does not argue that he sincerely holds his religious convictions, that those convictions are central to the practice of his religion, or that the challenged enactment burdens the free exercise of his religion. Thus, he has not established that the condition has a coercive effect, and his challenge on this ground fails.

Catholic Peace Activist Sentenced To Time Served For Trespassing

RNS reports:

A U.S. District Court judge has sentenced an 80-year-old Catholic peace activist to time already served for trespassing onto the Kings Bay Naval Submarine Base in St. Marys, Georgia, more than two years ago as part of a symbolic nuclear disarmament action.

Elizabeth McAlister, a former nun with the Religious of the Sacred Heart of Mary, had already served 17 months in a Glynn County Detention Center in Brunswick, Georgia, following the April 4, 2018 action.

In a video conference call on Monday (June 8), Judge Lisa Godbey Wood sentenced McAlister to time served, three years of probation and $25 a month in restitution until the amount of damage caused by the break-in — which the Navy estimated at $33,503 — is paid back in full by all the activists.

Minnesota Amish Must Install Septic Tanks

In Mast v. County of Fillmore, (MN App., June 8, 2020), the Minnesota state Court of Appeals rejected claims by four members of the Amish community that laws requiring them to install septic systems to dispose of their waste water violate their freedom of conscience under the Minnesota Constitution and their rights under RLUIPA. The Court of Appeals said in part:

the district court appropriately concluded that respondents met their burden of demonstrating that appellants’ mulch-basin system does not provide a less-restrictive means of accomplishing the government’s compelling interests of protecting public health and the environment.

Rochester Post Bulletin reports on the decision.

4th Circuit Dismisses "Muslim Ban" Lawsuits

In International Refugee Assistance Project v. Trump, (4th Cir., June 8, 2020), the U.S. 4th Circuit Court of Appeals dismissed three separate actions challenging President Trump's restrictions on the entry of foreign nationals from specified countries.  Among other things, plaintiffs contended that the Executive Order was "inexplicable by anything but animus toward Muslims." The Court of Appeals, relying on the U.S. Supreme Court's decision in Trump v. Hawaii, concluded:

At bottom, in view of the Supreme Court’s conclusions with respect to Proclamation 9645 in Hawaii, we conclude that the plaintiffs’ constitutional claims in this case lack the plausibility necessary to survive the government’s motion to dismiss under Rule 12(b)(6).

AP reports on the decision.

Recent Articles of Interest

From SSRN:

• Justin Aimonetti & Christian Talley, Religion as Sword, But Not as Shield: Rectifying the Estrangement of Environmentalism and Religious Liberty, (Vermont Journal of Environmental Law, Forthcoming).
• Lakshman Guruswamy, Global Energy Poverty: the Relevance of Faith and Reason, (Belmont Law Review, Vol. 7, Issue 2, pp. 199-244 (2020).
• Patrick McKinley Brennan, John Noonan on Development of Moral Doctrine and Capital Punishment: A Cautionary Tribute from the Time of Pope Francis,(May 27, 2020).
• Sahar F. Aziz & Khaled Beydoun, Fear of a Black and Brown Internet: Policing Online Activism, (100 B.U. L. Rev. 1153, 2020).
• Michael Conklin, 'The Most Demanding Test Known to Constitutional Law': Do Coronavirus Bans on Church Services Satisfy Religious Freedom Restoration Act Requirements?, (Washburn Law Journal, Forthcoming).
• Josh Hammer, Standing Athwart History: Anti-Obergefell Popular Constitutionalism and Judicial Supremacy's Long-Term Triumph, (University of St. Thomas Law Journal, Vol. 16, No. 2, 2020).
• Sabine Tsuruda, Disentangling Religion and Public Reason: An Alternative to the Ministerial Exception, (Cornell Law Review, Forthcoming).

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

• Valentino Cattelan, Translating Sustainability Into Islamic Social Finance, (GIFR 11th ed. - "Islamic Social Finance for Socio-Economic Inclusion & Sustainable Development", Forthcoming).
• Uche Nkatta Idika Eze, The Infusion of Politics in Religion and Its Consequences in Northern Nigeria, (May 2, 2020).
• Thiago Felipe Alves Pinto, An Empirical Investigation of the Use of Limitations to Freedom of Religion or Belief at the European Court of Human Rights, (Religion and Human Rights 15 (2020) 96–133).
• Thiago Felipe Alves Pinto & Rodrigo Vitorino Souza Alves, Investigations on the Use of Limitations to Freedom of Religion or Belief in Brazil, (Religion and Human Rights 15 (2020) 77–95).
• Matthew William Harradine, 'Advancing a Tolerant, Secular Commonwealth: Anti-Discrimination Law' (LLM Thesis, The University of Southern Queensland, 2020).

From SmartCILP:

• De'Siree N. Reeves, Missing Link: The Origin of Sherbert and the Irony of Religious Equality, [Abstract],15 Stanford Journal of Civil Rights & Civil Liberties 201-252 (2019).

Court Rejects Claim of Retaliation Because of Foster Parents' Religious Beliefs

In Lasche v. State of New Jersey, (D NJ, June 4, 2020), a New Jersey federal district court rejected claims by a couple who were formerly foster parents that the state acted unconstitutionally when it removed a foster child from their home and when it suspended their foster care license. Plaintiffs claim that they were retaliated against because of their religious belief that homosexuality is a sin, or because they shared their religious belief with their child. The court found insufficient allegations to support an equal protection claim. As to plaintiffs' 1st Amendment retaliation claim, the court said in part:

there is no legal support for Plaintiffs’ assertion of a First Amendment right to share their religious beliefs with their foster child, who was neither their biological child nor their adoptive child. In fact, finding that foster parents have an unfettered constitutional right to share their religious beliefs with a foster child would seemingly conflict with the free exercise rights of the foster children and his or her biological parents. Accordingly, I do not find that Plaintiffs can assert a First Amendment retaliation claim based on such a theory.

Rejecting the argument that the state's actions were in retaliation merely for their religious beliefs, the court said in part:

Plaintiffs’ allegations present a close-question regarding causality, nonetheless, I find that Plaintiffs have failed to allege facts demonstrating “a pattern of antagonism,” or other circumstantial evidence from which retaliatory or discriminatory motives can be inferred.

Court Upholds Most of NY's Statute Barring Employer Reproductive Health Discrimination; Enjoins Notice Provision

In CompassCare v. Cuomo, (ND NY, June 5, 2020), a church and two pro-life organizations challenged the constitutionality of N.Y Labor Law § 203-e which prohibits employers from discriminating or taking retaliatory action against an employee because of the employee's reproductive decision making or use of any drug, device or medical service. It also requires employee handbooks to give notice to employees of their rights under the statute. According to the court:

Plaintiffs’ complaint, then, is that Labor Law § 203-e will alter their appearance and thus undermine their message. People will know that, even though they proclaim a public commitment to a particular message about religion, sexuality, abortion, and contraception, employees may engage in conduct contrary to their professions of faith....

The court, in a 67-page opinion, rejected plaintiffs' free speech and association claims, saying in part:

The limitations here are not on the speech for which the Plaintiffs contend they associate, but instead threaten to create a situation where hearers might perceive that not all employees ... of the Plaintiffs practiced what they preached. The danger that others be able to call the Plaintiffs hypocrites is not a significant limitation on Plaintiffs’ speech or right to associate. 

The court also rejected plaintiffs' free exercise claims, saying in part:

In the end, the Court cannot find that the evidence presented by the Plaintiffs establishes that the legislature’s purpose was “to challenge the plaintiffs’ religious beliefs” and instead finds that “there was a neutral, secular purpose” for Section 203-e: protecting New Yorkers’ right to make their own decisions about reproduction, including whether to have a child and whether to use birth control....

The court, however, did find that the notice provision amounts to unconstitutional compelled speech and enjoined enforcement of this portion of the law, saying in part:

The notice directed by the statute is language that the Plaintiffs would otherwise not use, and they contend that the prohibitions on discrimination because of “reproductive decision making” undermines their message that the only choices that persons should make on such matters are to carry a child to term, not use birth control, and conduct their sexual lives according to the standards Plaintiffs claim the Bible sets out. While the language in Section 203-e’s notice section does not mention abortion by name, does not suggest to anyone that abortion providers are available, and does not direct anyone to use birth control, the Court finds that the statute compels Defendants to use language they otherwise would not. The notice provision, therefore, is subject to strict scrutiny. No issue of professional speech applies here, which could raise an issue concerning some other level of scrutiny.

Suit Challenges New Jersey's COVID-19 Limit On Worship Services

Earlier this week, two churches and their pastors filed suit in a New Jersey federal district court challenging New Jersey's COVID-19 orders which limit worship services to ten people.  The complaint (full text) in Solid Rock Baptist Church v. Murphy, (D NJ, filed 6/3/2020) alleges in part:

[L]ocal police officers have visited the churches, installed cameras on church property for surveillance purposes, investigated the parking lot of one church, filed Complaints against the 3 pastors for allowing religious gatherings that exceed the 10-people limit, even though the gathered individuals were separated by six feet and wore masks unless hindered from doing so for health reasons, while occupying the sanctuary, meeting or exceeding the social distancing and personal hygiene recommendations for “Essential Services” still permitted to gather.

... The Defendants’ Orders are not neutral laws of general applicability because they target constitutionally protected activity, significantly burden the Plaintiffs’ right to the freedom of religion and assembly, establish an orthodox form of religious exercise approved by the State of New Jersey, all the while providing broad exemptions for many secular activities that are not constitutionally protected....

[Thanks to Matthew Brown for the lead.]

6th Circuit Strikes Down Kentucky Abortion Law

In EMW Women’s Surgical Center v. Friedlander, (6th Cir., June 2, 2020), the U.S. 6th Circuit Court of Appeals in a 2-1 decision held unconstitutional a Kentucky statute that prohibits  dilation and evacuation abortions after 13 weeks of pregnancy unless fetal demise occurs before removal of the fetus from the uterus. The majority, affirming the grant of a permanent injunction, said in part:

Altogether, H.B. 454 imposes substantial burdens on the right to choose. Because none of the fetal-demise procedures proposed by the Secretary provides a feasible workaround to H.B. 454’s restrictions, it effectively prohibits the most common second-trimester abortion method, the D&E. In the balance against these burdens, we weigh the minimal benefits that H.B. 454 provides with respect to the Commonwealth’s asserted interests. These benefits are vastly outweighed by the burdens imposed by H.B. 454. Thus, H.B. 454 unduly burdens the right to choose, in violation of the Fourteenth Amendment.

Judge Bush dissented, arguing in part:

[T]here is a potential conflict of interest between Plaintiffs and their patients: for whatever reason—be it financial, litigation strategy, or otherwise—EMW’s physicians have refused to obtain the necessary training to perform fetal demise, even though uncontroverted studies presented at trial show that many, and perhaps a substantial majority, of women would choose fetal demise before undergoing a D&E procedure.... EMW’s doctors simply do not want to provide fetal demise before a D&E procedure, and their opposition to fetal demise creates a potential conflict of interest that deprives them of standing to bring this facial challenge against H.B. 454.

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Suit Challenges Prof's Radical Interpretation of Islam

This week, a Muslim student at Scottsdale, Arizona Community College filed a lawsuit against the college and a World Politics professor claiming that the faculty member's course contains a module on Islamic terrorism that is based on one-sided, biased perspectives of Islam. The complaint in Sabra v. Maricopa County Community College District, (D AZ, filed 6/2/2020) (full text of complaint and exhibits are at the end of this CAIR press release) alleges that the professor violates the Establishment Clause by teaching that Islam mandates terrorism without telling students that only some extremists believe this. It also claims that the professor violated the free exercise clause by requiring the student to agree to the professor's radical interpretation of Islam in answering a quiz. A law firm was commissioned to conduct an outside review of the College's response to complaints about the professor's actions. The full text of that report is at the end of this article from Fronteras.

3rd Circuit, 2-1, Affirms Dismissal of Church's Challenge To Delaware COVID-19 Limits

In Bullock v. Carney, 2020 U.S. App. LEXIS 17374 (3d Cir., May 30, 2020), a majority of a 3-judge panel in the U.S. 3rd Circuit Court of Appeals upheld a Delaware federal district court's denial of a preliminary injunction to a pastor who objected to the Governor's COVID-19 restrictions on worship services. In a one-sentence order, the court affirmed the district court "substantially for the reasons set forth in the Court's May 29, 2020 Memorandum Opinion."  Judge Phipps filed a dissenting opinion, saying in part:

Reverend Bullock does not bring a free exercise claim in isolation, but rather he also challenges a restriction on a communicative element of that freedom. Specifically, he disputes limitations on gathering size, preaching, baptism, and communion. And in any event, because these restrictions govern churches specifically, they do not act as neutral and generally applicable regulations. Accordingly, to be constitutional, the Governor's order must survive strict scrutiny.

A reasonable probability exists that the Governor's order does not meet that most exacting standard of constitutional scrutiny....  Here, the Governor's order furthers a compelling state interest — preventing the spread of the coronavirus. But ... a reasonable probability exists that the Governor will not be able to demonstrate that the challenged restrictions on churches are narrowly tailored to accomplishing that goal.

Christian Group Challenges England's Liberalization of Abortion Rules In COVID-19 Crisis

On March 30, Britain's Secretary of State for Health and Social Care, as part of the country's COVID-19 restrictions, approved a temporary rule allowing women seeking a non-surgical, medical abortion to take both Mifepristone and Misoprostol at home, following a remote consultation, instead of having to go to a clinic. Christian Concern filed a challenge to the new rule.  After the challenge was rejected, Christian Concern sought to have the High Court of Justice to allow judicial review of the challenges to the new rule. In The Queen v. Secretary of State for Health and Social Care, (High Ct., May __, 2020), a two judge panel, after a May 19 hearing, in a draft opinion refused permission to bring the claim for judicial review. Christian concern is appealing the ruling. Christian Concern has more information on the case. [Thanks to Law & Religion UK for the lead.]

Church's Challenge To St Louis COVID-19 Order Dismissed As Moot

In Church of the Word v. St. Louis County Executive Dr. Sam Page, (ED M, May 31, 2020), a Missouri federal district court dismissed as moot (with leave to amend) a church's challenge to St. Louis County's COVID-19 restrictions on church services. The court said in part:

Plaintiff filed its lawsuit seeking injunctive relief from St. Louis County’s April 20, 2020, Stay-at-Home Order1 two days after that Order had been superseded, and twelve days after the County had enacted the superseding law.

St. Louis Post Dispatch reports that yesterday the court granted plaintiff's motion for a voluntary dismissal.

President Trump Issues Executive Order On International Religious Freedom

Yesterday, President Trump issued an Executive Order on Advancing International Religious Freedom (full text). The Order provides in part:

Within 180 days of the date of this order, the Secretary of State (Secretary) shall, in consultation with the Administrator of the United States Agency for International Development (USAID), develop a plan to prioritize international religious freedom in the planning and implementation of United States foreign policy and in the foreign assistance programs of the Department of State and USAID....

The Secretary and the Secretary of the Treasury shall ... develop recommendations to prioritize the appropriate use of economic tools to advance international religious freedom in countries of particular concern, countries on the Special Watch List, countries in which there are entities of particular concern, and any other countries that have engaged in or tolerated violations of religious freedom as noted in the report required by section 102(b) of the [Religious Freedom Act of 1998].

Deseret, reporting on the Order notes:

The order’s release was timed to coincide with the president’s visit to a shrine honoring Pope John Paul II....

Supreme Court Says Druze Immigrant Can Appeal Factual Findings Under Convention Against Torture

Yesterday the U.S. Supreme Court ruled that factual findings relating to relief under the Convention Against Torture can be appealed from the Board of Immigration Appeals to the federal circuit courts. In Nasrallah v. Barr, (Sup. Ct., June 1, 2020), a member of the Druze religion claimed he would likely be tortured by Hezbollah if he returned to Lebanon. In a 7-2 decision, in an opinion written by Justice Kavanaugh, the Court said in part:

It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to certain final orders of removal. But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.

Justices Thomas and Gorsuch dissented. The Hill reports on the decision.

Recent Articles of Interest

From SSRN:

• Timothy Alan Campbell, Law’s Religious Awakening: Cincinnati’s Bible War, the Concept of Religious Neutrality, and Its Role Today , (Belmont Law Review, vol. 7, issue 2, pp. 47-85 (2020)).
• Andrew Seidel, Bad History, Bad Opinions: How ‘Law Office History’ Is Leading the Courts Astray on School Board Prayer and the First Amendment, (Northeastern University Law Review, Vol. 12, No. 1, 2020).
• Anita Koirala, Hindu Concept of Law, (April 30, 2020).
• Margaret Ryznar, Extending the Charitable Deduction Beyond the Covid-19 Pandemic, (Tax Notes Federal, Vol. 167, No. 3, pp. 463-464, April 20, 2020).

From SmartCILP:

• Festschrift: In Honor of Arthur J. Jacobson. Preface by Michael Pantazakos; introductory remarks by Richard H. Weisberg; introduction by Melanie Leslie; articles by Arthur J. Jacobson, Tvsi Blanchard, J. David Bleich, Mauro Bussani, George P. Fletcher, Otto Pfersmann, Monroe Price, Uriel Procaccia, Andraa Sajo, Bernhard Schlink, Jeanne L. Schroeder, Suzanne Last Stone, Paul Verkuil. 40 Cardozo Law Review 3047-3320 (2019). (Abstract).

Church's RLUIPA Zoning Claim Rejected

In New Harvest Christian Fellowship v. City of Salinas, (ND CA, May 29, 2020), a California federal district court rejected a church's claim that the City of Salinas, California's zoning code violates its rights under RLUIPA. In order to stimulate pedestrian friendly commercial activity, the zoning code bans clubs, lodges, places of religious assembly, and similar assembly uses on the ground floor of buildings facing three blocks of Main Street. The city refused to grant zoning amendments to allow the church to use a building it purchased for worship services. The court concluded that the zoning restrictions did not violate either the substantial burden or the equal terms provisions of RLUIPA, saying in part:

New Harvest has not presented any evidence to counter the City’s evidence of feasible alternative locations....

New Harvest’s own evidence establishes that [four theaters permitted in the area] ..., unlike New Harvest, offer numerous activities throughout the week that would reasonably be expected to attract the general public, such as first run films, weddings, concerts, comedy shows, and other events. By contrast, New Harvest offers no evidence that its activities actually draw any non-members, and no evidence that its activities have a positive impact on commercial activity or vibrancy within the Main Street restricted area.

Court Refuses To Order Vermont To Extend Dual Enrollment Program To Catholic School

In A.M. v. French, (D VT, May 29, 2020), a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program (DEP) that pays for high schoolers to take college courses. The court observed that while those administering DEP advised plaintiffs that religious parochial schools are ineligible to participate, this was an inaccurate characterization.  Instead, DEP is open to students enrolled in public schools, in private schools where a district without a public high school pays tuition, or students who are home schooled. In a prior decision, the Vermont Supreme Court held that the program allowing districts without public high schools to pay tuition to private schools violates the Vermont constitution only when the district reimburses tuition for a religious school and does not impose adequate safeguards to prevent the use of the funds for religious worship. In light of this, the federal district court said in part:

The DEP's plain text does not impose classifications or disparate treatment based on religion. Indeed, the statutory scheme does not even mention religion.... [A] home study student receiving a religious education from his or her parents may take religious education classes at a postsecondary institution with a religious affiliation provided the home study student can satisfy the DEP Eligibility Requirements. A publicly funded high school student at an approved independent school with a religious affiliation may do the same....

Because qualified independent religious schools are not categorically excluded from the DEP and face no additional burdens not imposed on secular approved independent schools, the DEP Eligibility Requirements are neutral as applied to religion. Plaintiffs have therefore not demonstrated a violation of their constitutional rights giving rise to irreparable harm.

TRO Denied In Church's Challenge To Delaware COVID-19 Order

In Bullock v. Carney, (D DE, May 29, 2020), a Delaware federal district court refused to issue a temporary restraining order to the pastor of Canaan Baptist Church who objected to Delaware Governor John Carney's COVID-19 restrictions on worship services. The court refused the TRO in part because the governor's restrictions had been liberalized by a May 23 order. Additionally the court said:

... Dr. Bullock's counsel argued that his client would be irreparably harmed as a result of three restrictions imposed by the May 23rd Guidance: (1) the requirement that preachers wear a mask while preaching; (2) the requirement that the pastor ( or anyone else) not hold a person during the course of the person's baptism; and (3) certain requirements that relate to the preparation and distribution of communion.... There is, however, no record evidence to support these assertions, and attorney argument cannot establish a showing of irreparable harm.

The court added:

[M]y decision today has no bearing on the merits of Dr. Bullock's claims. Those claims implicate one of our most treasured rights protected by the Constitution-the right to exercise freely one's religion. And they implicate as well the fundamental right of a state "to protect itself against an epidemic of disease which threatens the safety of its members.".... These important principles make this an important case, and my decision today will afford me the opportunity to give the case the considered reflection it deserves.

Delaware News Journal reports on the decision.

US Supreme Court, 5-4, Refuses To Enjoin California's Limits On Worship Services

On Friday night, by a vote of 5-4, the U.S. Supreme Court refused a church’s request to enjoin application to it of California’s COVID-19 restrictions that limit attendance at religious worship services to 25% of building capacity or 100 attendees.  In South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., May 29, 2020), Justices Ginsburg, Breyer, Kagan, and Sotomayor voted to deny the injunction without writing an opinion. Chief Justice Roberts concurred in denying the injunction, filing a 2-page opinion explaining his vote. He said in part:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

Justice Kavanaugh filed a 3-page dissenting opinion which was joined by Justices Thomas and Gorsuch, saying in part:

The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings”…

Justice Alito dissented without filing or joining an opinion.

Earlier in the day, the Court had issued a brief order similarly denying an injunction against Illinois restrictions on worship services, but here because the challenged Illinois restrictions had expired the day before.. Full text of order in Elim Romanian Church v. Pritzker, (US Sup. Ct., May 29, 2020). SCOTUSblog reports on the decisions.

DOJ Sues New Jersey Town Over Anti-Jewish Zoning Ordinances

Last week the Department of Justice filed suit against the Township of Jackson, New Jersey alleging that it has violated RLUIPA by using its zoning ordinances to target the Orthodox Jewish community.  The Township banned schools (including religious schools) in certain zoning districts and banned dormitories throughout the township so that boarding schools cannot operate.  The complaint (full text) in United States v. Township of Jackson, (D NJ, filed 5/20/2020), alleges in part:

The 2017 Ordinances were enacted in response to the growth of the Orthodox community and the complaints Township officials received from residents about the Orthodox community....

Hostility toward the Orthodox community by Township officials and residents in Jackson has continued since the enactments of Ordinances 03-17 and 04-17 to the present time.

The Department of Justice issued a press release announcing the filing of the lawsuit.

Congress Passes Uyghur Human Rights Policy Act

Congress yesterday gave final passage to the Uyghur Human Rights Policy Act of 2020 (full text). The bill now goes to the President for his signature. The bill addresses China's human rights violations targeted at Uyghurs, ethnic Kazakhs, Kyrgyz, and other Muslim minority groups in Xinjiang Uyghur Autonomous Region. It calls on the President and the State Department to take specific actions against China, including designating China as a country of particular concern under the International Religious Freedom Act. The bill also calls for various reports on the topic to be submitted to Congress and the imposition of sanctions on foreigners responsible for these human rights violations.

Italian Court Upholds Lease Of Historic Abbey to Conservative Catholic Group With American Ties

The Art Newspaper reports that in Italy in a decision published Monday, a 3-judge administrative court rejected an attempt by the Ministry of Culture to revoke a 19-year lease granted to a conservative Catholic organization, Dignitatis Humanae Institute (DHI), for an elaborate 13th century abbey. According to the report:

The lease was awarded as part of an initiative to involve the private sector in the management of abandoned cultural sites in Italy.

The judges concluded that the ministry had failed to act within the prescribed time limit for the annulment of public contracts. The verdict is an embarrassing defeat for the Italian ministry of culture which had argued that the time limit should not apply because the DHI made “false and mendacious” statements in its application for the lease, an allegation which the administrative judges say the ministry failed to provide evidence for.

DHI says that the case against it is politically motivated. DHI is funded by Donald Trump's controversial former chief strategist Steve Bannon. After the decision was released, Italy's Attorney General's Office said it would begin a criminal investigation of  DHI’s founder, Benjamin Harnwell. And the Ministry of Culture says it will appeal the administrative court's decision.

Family of 12 Challenges Virginia Restrictions On Worship Services Of Over Ten Persons

Suit was filed last week in a Virginia federal district court by a Catholic family of 12 challenging the provisions in Virginia Governor Ralph Northam's COVID-19 order that bars worship services with more than ten people. (The state is loosening these requirements in its reopening plan.) The complaint (full text) in Diaz-Bonilla v. Northam, (ED VA, filed 5/22/2020), alleges in part:

As a result of the Orders, the Diaz-Bonilla family is able to take their entire family of 12 to: restaurants to order food; any number of retail stores (such as Walmart and Target) that sell food or pharmaceuticals among a vast array of other items; electronics retailers; home improvement stores; lawn and equipment retailers, gas stations or convenience stores; pet stores;office supply stores; laundromats and dry cleaners; or even beer, wine, and liquor stores, if those businesses, deemed essential by the Governor’s order, adhere to certain social distancing requirements.

...However, under the Orders, the Diaz-Bonilla family cannot go to church or even invite a priest or fellow parishioner to their own home for religious purposes, no matter how strictly the family engages in social distancing and sanitization practices.

LifeSite News reports on the lawsuit.

Settlement In Suit Against Georgia City By Anti-Gay Preacher

In Georgia, the Athens-Clarke County Commission has agreed to pay $25,000 in settlement of a lawsuit brought by an anti-LGBT street preacher who was escorted out of the 2019 Athens Pride Festival by police officers. City Dope reported  yesterday on the settlement.  Preacher Adam Bishop was evicted from the festival when he shouted anti-gay rhetoric through a megaphone. The settlement of  Bishop's free exercise and free speech claims also includes a commitment to train police officers on how to treat expressive activity.

Churches Challenge Oregon's COVID-19 Limits

Suit was filed yesterday in an Oregon federal district court challenging Oregon Governor Katherine Brown's COVID-19 order that limits the size of worship services.  The complaint (full text) in Edgewater Christian Fellowship v. Brown, (D OR, filed 5/26/20), alleges in part:

1. In Douglas County Oregon, Pastor Miller may be jailed for going to church with twenty-five other people on a Sunday morning, but can join those same people and more at a dine-in restaurant for Sunday lunch with no penalty. This is irrational and unconstitutional.

2. Under Governor Brown’s Executive Order 20-25 (the “Religious Assembly Ban”) Oregonians in Josephine County may workout in a gym or participate in fitness classes in spaces up to max capacity with social distancing, but if they hold or attend a religious service with twenty-six people observing social distancing in the very same room (even one with capacity to seat over 1000) they are subject to a $1,250 fine and jail time of up to thirty days.

3. Under the Religious Assembly Ban, a church auditorium could host a gym class of any size with social distancing, but the same auditorium is limited to twenty-five people for church services.

ADF issued a press release announcing the filing of the lawsuit. (See prior related posting.)

Uyghur Rights Advocate Appointed To USCIRF

The U.S. Commission on International Religious Freedom issued a press release yesterday reading in part::

Speaker of the House of Representatives Nancy Pelosi (D-CA) announced the appointment of Nury Turkel, a lawyer and Uyghur rights advocate, to the U.S. Commission on International Religious Freedom (USCIRF)....

Turkel was born in a re-education camp [in China] at the height of the Cultural Revolution and spent the first several months of his life in captivity with his mother. He came to the United States in 1995 as a student and was granted asylum in 1997. He is the first U.S.-educated Uyghur lawyer.

Church Challenges Colorado's Limitation On Size Of Worship Services

9News reports that on Monday a church in Ault, Colorado filed suit against the governor and other state officials challenging public health orders that limit church gatherings to ten people:

High Plains Harvest Church ... filed the lawsuit Monday in district court and argues that the health order violates their first amendment right to freedom of religion. They also allege that it violates freedom of speech and their right to equal protection under the law.

The complaint alleges in part:

Today in Colorado it is perfectly legal for hundreds of shoppers to pack themselves cheek by jowl into a Lowe’s. But if 50 people meet to worship God in a small rural church, they do so at the risk of being fined and imprisoned.

UPDATE: On May 29, the U.S. Department of Justice filed a Statement of Interest in support of Plaintiffs (full text).

Nazi Symbols On 75-Year Old POW Gravestones In VA Cemeteries Raise Protests

Yesterday, bipartisan leadership of the House Veterans Affairs and Appropriations Committees wrote the Secretary of Veterans Affairs (full text of letter) demanding removal or alterations to the gravestones of three World War II German POW's in VA cemeteries.  According to the Military Times earlier this month:

At issue are three grave sites at two VA cemeteries: Fort Sam Houston National Cemetery in Texas and Fort Douglas Post Cemetery in Utah. Both were used to inter dozens of unclaimed remains of enemy troops following World War II.

While most of the foreign troops’ grave markers list only names and dates of death, the three in question are also engraved with with a swastika in the center of an iron cross and in inscription in German which reads “He died far from his home for the Führer, people and fatherland.”...

Veteran Affairs officials in a statement said the headstones date back to the 1940s. Army officials oversaw both cemeteries at the time and approved the inscriptions and inclusion of the swastika.

“The National Historic Preservation Act of 1966 assigns stewardship responsibilities to federal agencies, including VA and Army, to protect historic resources, including those that recognize divisive historical figures or events,” National Cemetery Administration spokesman Les' Melnyk said in response to questions about the graves.

“For this reason, VA will continue to preserve these headstones, like every past administration has.”

Military Religious Freedom Foundation which originally called attention to the gravestones has background and further information.

Church Sues Challenging Nevada's COVID-19 Limits On In-Person Services

Suit was filed last Friday in a Nevada federal district court challenging the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order that limits in person church services.  The complaint (full text) in Calvary Chapel Dayton Valley v. Sisolak, (D NV, filed 5/22/2020) alleges in part:

Instead of prioritizing religious freedom, the Governor has moved “non-essential” secular businesses and activities to the front of the line and pushed churches towards the back. Incredibly, the Governor has allowed restaurants and food establishments to resume in-person, onsite dining at 50% capacity, allowed all retail establishments to open at 50% capacity, and has thrown open the doors of nail care salons, hair salons, and barber shops—businesses that the Governor’s own orders say “promote extended periods of public interaction where the risk of [Covid-19] transmission is high.”...

Yet the Governor insists on maintaining the Church Gathering Ban, refusing to allow churches and places of worship to open their doors to ten or more people under any circumstance.

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

Presidential Message On Eid al-Fitr

Yesterday was Eid al-Fitr. On Saturday the White House posted a Presidential Message (full text) sending greetings to Muslims in the United States and around the world as they celebrated the feast. the message reads in part:

Over the past weeks and months, as we have fought the coronavirus, we have relied on our faith, family, and friends to help guide us through these unprecedented times.  As Muslims observe the day of Eid al-Fitr, we hope they find both comfort and strength in the healing powers of prayer and devotion.

9th Circuit: Church Loses Challenge To California COVID-19 Order

In South Bay United Pentecostal Church v. Newsom, (9th Cir., May 22, 2020), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, refused to enjoin California's and San Diego County's COVID-19 orders as they apply to in-person religious services. The majority, in a brief opinion, said in part:

Where state action does not “infringe upon or restrict practices because of their religious motivation” and does not “in a selective manner impose burdens only on conduct motivated by religious belief,” it does not violate the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 543 (1993). We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

Judge Collins filed a lengthy dissent, saying in part:

By explicitly and categorically assigning all in-person “religious services” to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services -- the State’s Reopening Plan undeniably “discriminate[s] on its face” against “religious conduct.”...

Even if the Reopening Plan were not facially discriminatory, it would still fail Lukumi’s additional requirement that the restrictions be “of general applicability.” 508 U.S. at 531.

Under California’s approach—in which an individual can leave the home only for the enumerated purposes specified by the State—these categories of authorized activities provide the operative rules that govern one’s conduct. While the resulting highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint, there is no denying that this amalgam of rules is the very antithesis of a “generally applicable” prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, “religious services” have not made the cut. I am at a loss to understand how the State’s current maze of regulations can be deemed “generally applicable.”

ABC News reports on the decision. The church filed an emergency application for an injunction (full text) with the U.S. Supreme Court.

Recent Articles of Interest

From SSRN:

• Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, (169 University of Pennsylvania Law Review, Forthcoming).
• Nadia Ahmad, Recognizing the Role of Religion in Environmental Legal Norms, (32 St. Thomas Law Review 24 (symposium) (2020)).
• Richard Moon, Conscience in the Image of Religion, (J. Adenitire ed., Religious Beliefs and Conscientious Exemptions in a Liberal State (Hart, 2019)).
• Engy Abdelkader, Immigration in the Era of Trump: Jarring Social, Political, and Legal Realities, (44 N.Y.U. Review of Law & Social Change - The Harbinger, 2020).
• Abdurrachman Satrio, LGBT Rights and the Constitutional Court: Protecting Rights Without Recognizing Them?, (Oxford University Press, Forthcoming).
• David L. Hudson & Gene Policinski, Essay: Understanding First Amendment Freedoms Through The Remarkable Life Of “The Greatest” – Muhammad Ali, (Creighton Law Review, Vol. 53, No. 2, 2020).

From SmartCILP:

• Elizabeth M. Donovan, Catholic Social Teaching and Neo-abolitionism: earing down The House of the Rising Sun, 67 Cleveland State Law Review 321-350 (2019).
• Symposium--The Way Forward: Gender, LGBTQIA Rights and Religious Liberties. Ruth Bader Ginsburg Lecture by Chai R. Feldblum; Hon.paula Rosenstein, moderator; Jocelyn Samuels, Alan Brownstein, Maimon Schwarzschild, panelists; articles by Julie A. Greenberg, Mattheus Stephens, Pamuela Halliwell. 41 Thomas Jefferson Law Review 163-237 (2019).

5th Circuit Enjoins Enforcement of City's COVID-19 Order Against Church Pending Appeal

Five days after a Mississippi federal district court, in an opinion critical of plaintiff's position, refused to rule immediately on an attempt by a Holly Springs church to hold indoor church services (see prior posting), the U.S. 5th Circuit Court of Appeals in First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, (5th Cir., May 22, 2020), granted an injunction pending appeal of enforcement of the city's COVID-19 Orders against the church. However the grant came with conditions, reflecting what appears to be ongoing animosity between the church and city officials, and somewhat competing Orders by the state and the city. In granting the injunction, the court said in part:

We do this upon the assurances by the Church that it will “satisf[y] the requirements entitling similarly situated businesses and operations to reopen.” In this vein, we refer the Church to the Governor’s new “Safe Worship Guidelines for In-Person Worship Services,” which appear similarly rigorous to the City’s requirements for reopening businesses but are tailored to church operations. These guidelines, if implemented in the spirit of the City’s orders, may help the Church abide by its safety pledge during this intervening period while the district court considers the injunction request and while the City continues the ongoing process of evaluating and revising its orders related to COVID-19.

In a concurring opinion, Judge Willett added considerable background:

The First Pentecostal Church of Holly Springs was burned to the ground earlier this week. Graffiti spray-painted in the church parking lot sneered, “Bet you Stay home Now YOU HYPOKRITS.”

The City mentions the church burning in its latest brief, but in a manner less commendable than condemnable. One might expect a city to express sympathy or outrage (or both) when a neighborhood house of worship is set ablaze. One would be mistaken. Rather than condemn the crime’s depravity, the City seized advantage, insisting that the Church’s First Amendment claim necessarily went up in smoke when the church did....

This argument is shameful.

Texas Supreme Court Rules In Favor of Break-Away Episcopal Diocese

The Texas Supreme Court today issued a decision in the long-running property dispute between the Episcopal Diocese of Fort Worth and its former parent body.  (See prior related posting.) In 2007 and 2008, the Diocese withdrew from The Episcopal Church (TEC) and affiliated with the more conservative Anglican Province of the Southern Cone.  In Episcopal Diocese of Fort Worth v. The Episcopal Church, (TX Sup. Ct., May 22, 2020), the court held:

Applying neutral principles to the undisputed facts, we hold that (1) resolution of this property dispute does not require consideration of an ecclesiastical question, (2) under the governing documents, the withdrawing faction is the Episcopal Diocese of Fort Worth, and (3) the trial court properly granted summary judgment in the withdrawing faction’s favor....

Explaining its holding, the court said in part:

At bottom, the disagreement centers on what effect the majority’s disassociation vote had on the Fort Worth Diocese’s identity specifically, whether the majority faction constitutes the continuation of that entity or whether the majority left as individuals and became something else. ...

In sum, TEC’s determinations as to which faction is the true diocese loyal to the church and which congregants are in good standing are ecclesiastical determinations to which the courts must defer. But applying neutral principles to the organizational documents, the question of property ownership is not entwined with or settled by those determinations. The Fort Worth Diocese’s identity depends on what its documents say. To that end, the Diocesan Constitution and Canons provided who could make amendments and under what circumstances; none of those circumstances incorporate or rely on an ecclesiastical determination by the national church; and nothing in the diocese’s or national church’s documents precluded amendments rescinding an accession to or affiliation with TEC. Applying neutral principles of law, we hold that the majority faction is the Fort Worth Diocese and parishes and missions in union with that faction hold equitable title to the disputed property under the Diocesan Trust.

The court went on to also reject TEC's claim that the Diocese's property was held in trust for TEC.

Trump Presses For Reopening of Houses of Worship

In remarks today (full text) from the Blue Room balcony to ceremony honoring veterans and POW/ MIA's, President Trump said in part:

Today, I just spoke to CDC.  We want our churches and our places of faith and worship; we want them to open.  And CDC is going to be — I believe today they’re going to be issuing a very strong recommendation.  And I’m going to be talking about that in a little while.  But they’re going to be opening up very soon.  We want our churches open.  We want our places of faith, synagogues — we want them open.  And that’s going to start happening.  I consider them essential, and that’s one of the things we’re saying.  We’re going to make that essential.

You know, they have places “essential” that aren’t essential, and they open.  And yet the churches aren’t allowed to open and the synagogues and — again, places of faith — mosques, places of faith.  So that’s going to — see that — you’re going to see that.

Later, at a White House press conference, the President again spoke about reopening of houses of worship. CNBC reports on the press conference:

President Donald Trump on Friday demanded that governors reopen churches, synagogues and mosques “right now,” and threatened to “override” state leaders’ restrictions if they do not do so by the weekend....

Trump said it was an “injustice” that some state leaders have allowed “liquor stores and abortion clinics” to stay open amid the Covid-19 pandemic while closing houses of worship.

“It’s not right,” Trump said. “I’m calling houses of worship essential.”

“If there’s any question, they’re going to have to call me, but they’re not going to be successful in that call,” Trump said of state leaders.

“The governors need to do the right thing and allow these very important essential places of faith to open right now, for this weekend,” Trump said.

“If they don’t do it, I will override the governors.” ...

White House press secretary Kayleigh McEnany, when asked what authority allows Trump to override a governor’s rules, did not provide a specific provision.

Instead, she said “the president will strongly encourage every governor to allow their churches to reopen – and boy, it’s interesting to be in a room that desperately wants to seem to see these churches and houses of worship stay closed.”

UPDATE: Here is the CDC's Interim Guidance for Communities of Faith.

Pastor Sues Over Delaware COVID-19 Restrictions On Church Services

According to the Delaware News Journal, on Tuesday Rev. Christopher Bullock, pastor of  Canaan Baptist Church in New Castle, filed suit against Delaware Governor John Carney over COVID-19 limits on church services. The suit was filed a day after the Governor loosened restrictions somewhat. According to the paper:

[G]atherings must be limited to 30% of the fire code capacity and strict social distancing must be maintained. In-person services were previously limited to 10 people at a time. 

Also, service times cannot run longer than one hour and must be staggered for the area to be cleaned. 

These guidelines can be problematic for some churches, said Bullock, who added that some African American preachers take about an hour to get started. He also pointed out that depending on the size of the temples and congregations, worshipers might not be able to attend God's House as often as they choose.  

"It is too intrusive. We know how to take care of ourselves," he said. "We don't need the government to tell us what to do, how long to do it and why to do it."

Local Wisconsin COVID-19 Orders Challenged On 1st Amendment Grounds

A lawsuit was filed this week in a Wisconsin federal district court against ten local public health officers and a number of other local and state officials seeking to prevent enforcement of local COVID-19 Emergency Orders after the Wisconsin Supreme Court invalidated a statewide emergency order because it exceeded legislative authority and was improperly adopted. (See prior posting.) This week's lawsuit was brought by seventeen plaintiffs, one of whom is a pastor.  The complaint (full text) in Yang v. Powers, (ED WI, filed 5/20/2020) alleges in part that the local orders violate plaintiffs' free exercise rights and the Establishment Clause, as well as their freedom of assembly and equal protection rights. Urban Milwaukee reports on the lawsuit.

CDC Withholds Guidance On Reopening Of Churches

Washington Post reported yesterday:

The CDC this week issued a detailed road map for reopening schools, child-care facilities, restaurants and mass transit. On Tuesday night, the agency issued additional guidance in the form of “health considerations” for summer camps, including overnight camps, and youth sports organizations and colleges.

But there are currently no plans to issue guidance for religious institutions, according to three administration officials who spoke on the condition of anonymity to discuss policy decisions....

In the end, the decision to hold back reopening guidance for religious institutions came from some White House and coronavirus task force officials who did not want to alienate the faithful and believed that some of the proposals, such as limits on hymnals, the size of choirs or the passing of collection plates, were too restrictive, according to two administration officials.

Maryland Stay-At-Home Orders Upheld Over Free Exercise and Other Challenges

In Antietam Battlefield KOA v. Hogan, (D MD, May 20, 2020), a Maryland federal district court rejected several constitutional challenges to Maryland Governor Larry Hogan's COVID-19 stay-at-home orders. Among the plaintiffs were several pastors and a deacon who complain that the orders bar them from holding religious services with more than 10 people, and from attending weddings and funerals in person. Rejecting plaintiffs' free exercise claims, the court said in part:

This court agrees with the reasoning of the many courts that have found similar orders to be neutral and generally applicable.... The Governor’s order is neutral because it proscribes conduct (gatherings of more than 10 people) without regard to whether that conduct is religiously motivated or not. There is no indication that the order is meant to target conduct because of its religious motivation.

The order is also generally applicable. The plaintiffs argue that the order is underinclusive because it still allows some businesses to “accommodate large crowds and masses of persons,” such as Lowe’s and Walmart.... But plaintiffs have not shown that these activities are comparable to religious services. First, these businesses are part of the critical infrastructure, according to the U.S. Department of Homeland Security’s Cybersecurityand Infrastructure Security Agency.... and, unlike religious services, they cannot operate remotely...

Second, the plaintiffs have not shown that allowing essential businesses to remain open is “nonreligious conduct that endangers these interests in a similar or greater degree than” religious services....

Daily Record reports on the decision.

Defamation Suit Dismissed Under Ecclesiastical Entanglement Doctrine

In Lippard v. Holleman, (NC App., May 19, 2020), the North Carolina Court of Appeals affirmed the dismissal of a defamation suit brought by a former church pianist and vocalist against the Baptist church's pastor and its minister of music. A dispute over assignment of a vocal solo had escalated leading to plaintiff's dismissal. Plaintiff sued over various statements made in connection with her termination. The court held:

... [D]etermining the truth or falsity of Defendants’ alleged defamatory statements—where the content of those statements concerns whether Plaintiffs complied with [Diamond Hill Baptist Church's] practices—would require us to interpret or weigh ecclesiastical matters, an inquiry not permitted by the First Amendment....

We affirm the trial court’s order on the ground that all statements Plaintiffs challenge are barred by the ecclesiastical entanglement doctrine.

Chief Justice McGee concurred in part and dissented in part.  [Thanks to Will Esser via Religionlaw for the lead.]

DOJ Says California Is Discriminating Against Places of Worship In Reopening Plan

As reported by the Los Angeles Times, the Department of Justice Civil Rights Division yesterday sent a letter (full text) to California Governor Gavin Newsom complaining about discriminatory treatment of houses of worship in the state's COVID-19 Reopening Plan. The letter says in part:

Places of worship are not permitted to hold religious services until Stage 3. However, in Stage 2, schools, restaurants, factories, offices, shopping malls, swap meets, and others are permitted to operate with social distancing....

We believe... that the Constitution calls for California to do more to accommodate religious worship, including in Stage 2 of the Reopening Plan.

Labor Department Issues New Guidance On Religious Liberty Protections

The U.S. Department of Labor announced last week (May 15) that it has issued a directive and a guidance to advance religious liberty protections. the directive, among other things, instructs DOL to:

Ensure religious organizations are given the opportunity to compete equally with non-religious organizations for Federal financial assistance at the Federal and State levels.

The Guidance (full text) implements Executive Order 13798 in connection with federal grants administered by DOL. The Guidance says in part:

Religious organizations that receive DOL financial assistance retain their programmatic independence from Federal, State, and local governments and may continue to carry out their missions and maintain their religious character. This autonomy includes, among other things, the right to use the organizations’ facilities to provide DOL-supported social services without removing or altering religious art, icons, scriptures or other religious symbols, and the right to govern themselves and to select board members on a religious basis. Faith-based organizations, like all organizations receiving DOL financial assistance, must not use direct DOL financial assistance to support any explicitly religious activities... [including] for example, worship, religious instruction, and proselytization....

If an organization conducts explicitly religious activities using non-DOL funds and also offers social service programs using direct DOL support, then that organization must offer the explicitly religious activities at a time or in a place that is separate from the programs receiving direct DOL support....

Catholic School Sues For More Adequate State Bus Transportation

On Friday, a pre-K through 8th grade Catholic school in Madison, Wisconsin announced that it has filed suit against the Madison, Wisconsin Metropolitan School District to obtain state-funded bus transportation that meets its current class starting time.  The complaint (full text) in St. Maria Goretti Congregation v. Madison Metropolitan School District, (WI Cir. Ct., filed 5/15/2020), alleges in part:

Chapter 121 of the Wisconsin Statutes requires school districts ... to provide and fund transportation services to both public and private-school students in their boundaries, with “reasonable uniformity” in the transportation offered.... [T]he District provides busing to its own students that drops them off reasonably before the start of their school day. Yet, despite its plain statutory obligations, the District has adamantly refused to provide similar busing for the upcoming 2020–21 term to the students of St. Maria Goretti School.... Instead, the District has repeatedly informed St. Maria Goretti that it would only provide and fund busing that drops off its students 70 minutes after its current start time. So, the District is forcing St. Maria Goretti to substantially change its start and end times to receive busing, devastating almost every aspect of the school, including its Catholic mission; or to accept manifestly inadequate services that drops off its students well after the beginning of the school day; or to pay for busing services itself, despite the substantial burdens this would impose. This unequal, unjust treatment violates Chapter 121.

The school also filed a 47-page brief (full text) in support of its motion for a temporary injunction or writ of mandamus.

Tel Aviv Mayor Sues New Transportation Minister For Libel Over Claims About Tefillin Stands

Yeshiva World reported yesterday on a libel lawsuit filed in Israel by Tel Aviv Mayor Ron Huldai against newly-appointed Transportation Minister Miri Regev.  The suit, filed in Tel Aviv- Jaffa Magistrate's Court, seeks damages equivalent to $142,000 (US). According to the report:

The lawsuit refers to public statements Regev made at a February campaign event, at which she accused Huldai of coming out against Judaism and freedom of religion by banning Tel Aviv residents from putting on tefillin.

Huldai says that in February, the city of Tel Aviv banned all kinds of stands (including tefillin stands which urge passers-by to put on phylacteries) within 100 meters of schools and other public buildings that serve minors. He says that Regev intentionally distorted the facts and refused to correct her statements. He says that he had no input into the decision and that it did not single out tefillin stands.

Court Refuses To Dismiss Title VII Suit Because Ministerial Exception Unclear On Facts

In Tucker v. Faith Bible Chapel International, (D CO, May 18, 2020), a Colorado federal district court refused to dismiss a Title VII and state common law complaint brought against Faith Christian Academy. The suit was filed by Gregory Tucker who was a science teacher and chaplain/ director of student life at Faith Christian Academy.  Gregory was fired after he organized a controversial chapel service titled "Race and Faith." Defendant contends that the "ministerial exception" doctrine bars the lawsuit. The court said in part:

I find that whether Mr. Tucker was a “minister” within the meaning of the “ministerial” exception” is genuinely disputed on the evidence presented. Defendant’s position is substantially grounded in the wording of documents, most notably the extension agreement that characterized Mr. Tucker as “chaplain” and the handbook which purports to make all teachers and other full-time employees “ministers.” To be sure, those documents are relevant to the issue. But the substance of Mr. Tucker’s position turns on the totality of the facts and circumstances of his employment, and he has come forward with facts that, if believed by the jury, could rationally support the opposite conclusion.

France's Council of State Orders Lifting of COVID-19 Ban On Worship Services

Yesterday, France's highest court, the Council of State, ruled that within 8 days the government must lift its COVID-19 ban on gatherings at houses of worship. Currently only funerals, with no more than 20 people in attendance may be held in houses of worship.  Reporting on the decision, Euronews said:

The judge highlighted that the government authorised public gatherings of up to 10 people in other settings and that as such the blanket ban "is disproportionate to the objective of preserving public health."

The ruling adds that freedom of worship is a fundamental right which "includes among its essential components the right to participate collectively in ceremonies, in particular in places of worships" and that the government's decree "constitutes a serious and manifestly unlawful interference with it".

It called on the government to take measures that are "strictly proportionate to the health risks incurred".

[Thanks to Eric Rassbach via Epidemiclaw for the lead.]

RFRA Defense Rejected In Possession of Firearms Case

Inner City Press reports on a sentencing decision handed down yesterday in a New York federal district court in U.S. v. Cruz. The trial court judge rejected defendant's Religious Freedom Restoration Act defense in his sentencing hearing for illegal possession of a loaded firearm. Defendant's counsel argued that defendant's possession of the firearm was "solely for use in the ceremonial practice of his religion, Palo Mayombe. Firearms hold only symbolic meaning in the ritual practice of the religion and involve no violence or threat of violence." The judge sentenced defendant to 21 months in prison followed by three years of supervised release.

Oregon Trial Court Enjoins Enforcement of State's COVID-19 Orders In Suit By Churches

In Elkhorn Baptist Church v. Brown, (OR Cir. Ct., May 18. 2020), an Oregon state trial court granted a preliminary injunction against further enforcement of the governor's COVID-19 emergency orders in a suit brought by 16 churches and a number of other plaintiffs who complain that the order prevents them from holding church services.  The court held that under the relevant legislation invoked by the governor, a state of emergency could be declared only for up to 28 days.

[W]hen the Governor utilized the provisions of ORS 433.441 in her executive order, she triggered all the provisions of ORS 433.441 including the time restrictions in ORS 433.441(5). By doing so, the executive order became null and void beyond the maximum 28-day time period allowed by the statute. Moreover, by not complying with ORS 433.441(5) timelines, the Governor’s subsequent Executive Orders 20—05 through 20-25 are also null and void....

The Governor has an enormous responsibility to protect the lives of the citizens of our state balanced against the citizens’ constitutional rights to freedom of religion which includes how he or she chooses to worship. The Governor’s orders are not required for public safety when Plaintiffs can continue to utilize social distancing and safety protocols at larger gatherings involving spiritual worship, just as grocery stores and businesses deemed essential by the Governor have been authorized to do.

Reporting on the decision, The Oregonian says that the governor's office has filed an appeal with the Oregon Supreme Court.

UPDATE: According to a statement on Twitter by Governor Brown, late last night the Oregon Supreme Court reinstated her emergency orders while the state Supreme Court hears arguments in the appeal.

British Government Task Force To Develop Rules For Reopening of Houses of Worship

In Britain last Friday, the Ministry of Housing, Communities and Local Government announced a new interfaith task force to develop a plan for the phased and safe reopening of places of worship. According to the release:

No place of worship will be able to reopen before a final decision by the government and the accompanying change to the legal position in the published regulations. Faith organisations will be able to reopen at a slower pace if they wish.

[Thanks to Law & Religion UK for the lead.]

Recent Articles of Interest

From SSRN:

• Joshua Neoh,  Apostasy and Freedom of Religion in Malaysia, (in Paul Babie, Neville Rochow and Brett Scharffs (eds), Freedom of Religion or Belief: Creating the Constitutional Space for Fundamental Freedoms (Edward Elgar Press, 2020)).
• Tarlan Masmaliyeva, Headscarf Cases Before the CJEU: Achbita and Bougnaoui (April 16, 2020).
• Kellen Funk, The Swearer's Prayer, (May 12, 2020).
• Julie Ada Tchoukou, Religion as an Ideological Weapon and the Feminisation of Culture in Nigeria: A Critical Analysis of the Textuality of Violence Through the Legal Regulation of Child Marriages, (The International Journal of Human Rights, 2020).
• Howard Wasserman, Testing the Koufax Curse: How 18 Jewish Players (and Rod Carew) Performed on Yom Kippur, (Florida International University Legal Studies Research Paper No. 20-07 (2020).
• Heidi Gilchrist, 'Act Normal or Leave': When Law and Culture Collide, (Columbia Journal of European Law, Forthcoming).
• Carlo A. Pedrioli, Regulating Online Hate Speech: A U.S. Perspective, (6 Int'l J. Digital & Data L. 259 (2020)).
• Abdullah Salem Bugshan, Faisal Alnori & Walid Bakry, Shariah Compliance and Corporate Cash Holdings (November 30, 2019).

From SmartCILP:

• Francis J. Beckwith, Now, I'm Liberal, But To a Degree: An Essay on Debating Religious Liberty and Discrimination by John Corvino, Ryan T. Anderson, Sherif Girgis, 67 Cleveland State Law Review 141-172 (2019).
• Vanita Saleema Snow, Reframing Radical Religion, 11 Georgetown Journal of Law & Modern Critical Race Perspectives 1-41 (2019).
• Brian Miller, Reconciling Religious Freedom and LGBT Rights: The Perils and Promises of Masterpiece Cakeshop, 29 George Mason University Civil Rights Law Journal 245-274 (2019).
• Joe Dryden, Matthews v. Kountze Independent School District: An Outlier In a Sea of Establishment Clause Outliers, 29 George Mason University Civil Rights Law Journal 275-300 (2019).
• Shelly Aviv Yeini, The Rest Day of Professional Football Players in Israel, [Abstract], 18 Virginia Sports & Entertainment Law Journal 17-34 (2018).

Court Strikes Down North Carolina Limits On Worship Services

In Berean Baptist Church v. Cooper, (ED NC, May 16, 2020), a North Carolina federal district court issued a temporary restraining order barring enforcement of the governor's COVID-19 order that limits indoor worship services to ten people. Saying that "There is no pandemic exception to the Constitution of the United States or the Free Exercise Clause of the First Amendment.," the court continued:

The assembly for religious worship provisions in EO 138 starkly illustrate the extent to which religious entities and individuals are not subject to a neutral or generally applicable law. The record, at this admittedly early stage of the case, reveals that the Governor appears to trust citizens to perform non-religious activities indoors (such as shopping or working or selling merchandise) but does not trust them to do the same when they worship indoors together.

News & Observer reports on the decision.

Louisiana Limits On Church Services Upheld

In Spell v. Edwards, (MD LA, May 15, 2020), a Louisiana federal district court upheld the validity of the Louisiana governor's COVID-19 restrictions on church services.The court said in part:

At the core of their argument, Plaintiffs submit that their congregation “is a large assembly of more than 2,000 individuals” whose religious beliefs require them to assemble for church in person.... Additionally, Plaintiff Spell avers that he is imbued with a “duty to lay hands on the sick and pray for them so that they may become well,” which, along with holy communion and the love offering, would lose meaning absent a public gathering.... 

The Court finds that there is a substantial relationship between the occupancy limitations in the Governor’s orders and the current severe public health crisis. Such restrictions are directly intended to limit the contact-based spread of COVID-19. Additionally, like the law at issue in Jacobson, Proclamation No. 52 JBE 2020 is not a complete ban on Plaintiffs’ rights as alleged by Plaintiffs. Under the terms of the order, Plaintiffs have been free to hold outdoor services with as many congregants as they would like and nothing in the orders proscribes, inhibits or regulates the content of their religious speech. Plaintiffs have always been free to fully exercise their rights to assembly, although for smaller numbers of congregants.

(See prior related posting).

Court Is Critical of Church's Litigation Tactics In Challenge To COVID-19 Order

In First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, (ND MS, May 14, 2020), a Mississippi federal district court refused to rule immediately on an attempt by a Holly Springs church to hold indoor church services.  Both the state and the city have issued  COVID-19 orders that are similar, but the church views the state as being more friendly to religious exercise.  The court, in an  opinion critical of the church's continued litigation, said in part:

This court has found the City to be quite accommodating of the free exercise of religion in this case, including by quickly amending its ordinance to expressly grant plaintiff the right to conduct the drive-in services which it previously requested. Nevertheless, plaintiff appears to regard the Governor, but not the City, as a friend of the exercise of religion, and, that being the case, this court can discern little point in the City choosing to increase its legal exposure by adopting its own executive orders relating to church services, when they are so similar to the Governor’s. The City’s choice of whether or not to adopt the Governor’s orders will be moot if it is determined that the Governor’s orders pre-empt the City’s, but this court raises this as one potential step to bridge the gap of mistrust which clearly exists between the parties in this case.....

Plaintiffs’ briefing on this issue heightens this court’s impression that this entire lawsuit is nothing more than a deeply misguided attempt on their part to gain permission to endanger their own lives and those of their fellow community members. While this court does not rule out the possibility that indoor church services could be held at acceptable risk by a responsible church if sufficient precautions were taken, it has grave concerns whether the plaintiff in this case is sufficiently aware of the gravity of these matters to enable it to do so....

This court observes that plaintiff has made a habit in this litigation of taking the time to carefully prepare briefs (its brief in support of its current motion is 26 pages long) and then demanding an immediate ruling from this court, with opposing counsel left to make hurried arguments in a telephonic hearing. This is a fundamentally unfair process, and this court will no longer tolerate it.

European Court Says Muslim Inmate's Religious Rights Were Infringed In Russian Prison

The European Court of Human Rights this week handed down an opinion in the case of a Muslim inmate in a Russian prison who claims that his religious rights were infringed in violation of the European Convention on Human Rights when he was reprimanded for praying in the middle of the night during Ramadan.  In Korostelev v. Russia, (ECHR, May 12, 2020), the court said in part:

Religious freedom is primarily a matter of individual thought and conscience..... However, ... freedom of religion also encompasses the freedom to manifest one’s belief.... The manifestation of religious belief may take the form of worship, teaching, practice and observance.... Since the manifestation by one person of his or her religious belief may have an impact on others, ... any limitation placed on a person’s freedom to manifest religion or belief must be prescribed by law and necessary in a democratic society in pursuit of one or more of the legitimate aims set out therein...

From the Government’s submission and the findings of the domestic authorities, it appears that the only reason for disciplining the applicant was the formal incompatibility of his actions with the prison schedule and the authorities’ attempt to ensure full and unconditional compliance with that schedule by every prisoner.

... Although the Court recognises the importance of prison discipline, it cannot accept such a formalistic approach, which palpably disregarded the applicant’s individual situation and did not take into account the requirement of striking a fair balance between the competing private and public interests.

The court in a chamber judgment awarded plaintiff 2600 Euros in damages and another 2000 Euros for costs and expenses. Law & Religion UK reports further on the case.

Churches Sue Over North Carolina COVID-19 Order

Two churches and an organization representing a number of churches filed suit yesterday in a North Carolina federal district court seeking to enjoin enforcement of  North Carolina Governor Roy Cooper's COVID-19 Order banning indoor religious worship services comprised of more than ten people. The complaint (full text) in Berean Baptist Church v. Cooper, (ED NC, filed 5/14/2020), alleges that the governor's orders are unconstitutional:

because they treat religious gatherings less favorably than similar secular gatherings, virtually banning religious assembly, are not narrowly tailored, and do not permit less restrictive means to achieve the government’s interest without burdening Plaintiffs’ rights as guaranteed by the U.S. Constitution’s First Amendment.

Plaintiffs also filed a Memorandum in Support of their motion for a TRO (full text). WSOC TV reports on the lawsuit.

9th Circuit: Church Has Standing To Challenge California Abortion Coverage Mandate

In Skyline Wesleyan Church v. California Department of Managed Health Care, (9th Cir., May 13, 2020), the U.S. 9th Circuit Court of Appeals reversed a California federal district court's ruling on standing and ripeness in a challenge to the mandate that insurance policies cover legal abortion services.  The appeals court held that the church plaintiff has standing to challenge the requirement on free exercise grounds and that the claim is ripe for review. Courthouse News Service reports on the decision.

Churches Fail In Challenge To Illinois COVID-19 Limits

In Elim Romanian Pentecostal Church v. Pritzker, (ND IL, May 13, 2020), an Illinois federal district court refused to grant a temporary restraining order or preliminary injunction to two churches challenging the governor's COVID-19 limitation on worship services. The governor's order requires social distancing and limits worship services to ten people.  The court said in part:

[B]ecause Jacobson [v. Massachusetts] is implicated by the current health crisis, and because the Order advances the State’s interest in protecting its citizens from the pandemic, the court concludes that plaintiffs have a less than negligible chance of success on their constitutional claims.  Moreover, even if Jacobson’s emergency crisis standard does not apply, plaintiffs have failed to show any likelihood of success under traditional First Amendment analysis. ...

[P]laintiffs have provided no evidence that the Order targets religion. They point to the Order’s exemptions for essential businesses that may host more than ten people and argue “if large gatherings at liquor stores, warehouse supercenters, and cannabis stores are not prohibited – and distancing and hygiene practices are only required to the greatest extent possible – even though endangering citizens (or not) to an equal degree, then it is obvious religious gatherings have been targeted for discriminatory treatment.” The court disagrees.

Gatherings at places of worship pose higher risks of infection than gatherings at businesses.

WLS TV reports on the decision.