Turkistani Exiles Ask International Criminal Court To Investigate Genocide Against Uyghurs

According to a press release issued on July 6:

Today, lawyers representing the East Turkistan Government in Exile (ETGE) and the East Turkistan National Awakening Movement (ETNAM) have submitted a lengthy Complaint to the ICC [International Criminal Court] asking the OTP [Office of the Prosecutor] to open an investigation into Genocide and other Crimes Against Humanity allegedly committed against the Uyghur and other Turkic peoples of East Turkistan by senior Chinese Leaders including President Xi Jinping.

New York Times reports on developments.

Jewish Summer Camps In New York Lose Challenge To COVID-19 Closures

In Ass'n of Jewish Camp Operators v. Cuomo, (ND NY, July 6,2020), a New York federal district court rejected arguments that New York state, among other things, violated the Free Exercise clause "by discriminatorily banning children’s Jewish overnight camps (while exempting favored secular conduct) in a way that is not narrowly tailored to curbing the transmission of the COVID-19 virus...." The court said in part:

Plaintiffs argue that Defendant’s executive orders are not neutral because his refusal to allow overnight camps to open effectively targets Jewish overnight camps (given that almost all of the secular or non-Jewish overnight camps had already decided they would not open in the summer of 2020 by the time Defendant and Health Commissioner Zucker specifically clarified on June 12, 2020, that overnight camps would not be allowed to open). Although it is true that “[t]he effect of the law in its real operation is strong evidence of its object,” it is likewise true that “adverse impact will not always lead to a finding of impermissible targeting.” ... Plaintiffs have provided no factual allegations or evidence to indicate that the fact that only Jewish overnight camps have continued to plan to open for the summer leads to the conclusion that Defendant’s executive orders have targeted the Jewish faith. To the contrary, it is undisputed that Defendant’s ban on overnight camps applies equally to all such camps, regardless of the camps’ religious (or secular) nature. The fact that Plaintiffs have maintained a hope and willingness to operate or send their children to overnight camps this summer longer than most persons involved with secular or non-Jewish overnight camps does not somehow turn Defendant’s facially neutral executive order into impermissible targeting.

The court also rejected 14th Amendment challenges contending that the closures infringed parental rights to control the upbringing of their children. Times Herald Record reports on the decision.

Recent Articles of Interest

From SSRN:

• Marc Spindelman, The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, Part II, 81 Ohio State Law Journal Online 87 (2020).
• Carl H. Esbeck, With the Supreme Court having Decided Espinoza v. Montana and Ordering the State to Fund Religious Schools: What's Left of the Establishment Clause?, (University of Missouri School of Law Legal Studies Research Paper No. 2020-17 (June 2020).
• Steven J. Heyman, Reason and Conviction: Natural Rights, Natural Religion, and the Origins of the Free Exercise Clause, (University of Pennsylvania Journal of Constitutional Law, Vol 23, No. 1, Forthcoming).
• Luke Andrew Boso, Anti-LGBT Free Speech and Group Subordination, (June 18, 2020).
• Dr. Hassan, Globalized World and the Facilitative Role of Modern Media and Sources of Communication in the Process of Ijtehad & Ijma, (Islamic Sciences Volume 2 (2019)).
• Peter T. Wendel, Testamentary Transfers and the Intent versus Formalities Debate: The Case for a ‘Charitable’ Common Ground, (Kansas Law Review, Forthcoming).

From SmartCILP:

• Kent Greenawalt, Speech and Exercise by Private Individuals and Organizations,72 SMU Law Review 397-414 (2019).

Michigan Mosque Sues Cemetery Over Need To Prepay For Grave Sites

In May, suit was filed in a state trial court in Dearborn, Michigan by a local mosque which claims that a cemetery is attempting in breach of contract to double the price of grave space for mosque members during the COVID-19 emergency.  On July 2, the mosque filed a motion (full text) for summary judgment on its breach of contract claim. The allegations in American Moslem Society v. Midwest Memorial Group, LLC, (MI Cir. Ct., filed 7/2/2020), are that the mosque entered three separate contracts over the years for the purchase of a large number of graves at a discount price, and then made the graves available to its members when needed by them. The mosque has paid $380,000 for 608 of the 1000 graves acquired under its latest contract. The cemetery now contends that the mosque must pay in advance for all 1000 graves before it may use any of them. Plaintiffs' motion for Summary Disposition alleges in part:

Defendant's unjustified refusal to allow burials in AMS III at a time of great suffering and need in the wake of the COVID-19 pandemic is clearly part of a grossly improper attempt to shake down Plaintiff and its members.  Defendant's April 14 letter cynically proposes a simple "cure" for the problem.  Plaintiff either 1)  pays the amount of $353,750 remaining ..., or 2) waives its rights under the 2017 Contract and enters into a new contract in which the cost of graves ... is roughly doubled.

... Defendant's demands are particularly coercive in light of its knowledge that the AMS community is extraordinarily tight knit and places a high premium on having its loved ones buried in close proximity to each other and to their mosque, which is located adjacent to the cemetery.

Detroit News reports on the lawsuit.

Justice Kavanaugh Refuses To Enjoin Illinois District Court's Upholding of COVID-19 Limits On Political Gatherings

As previously reported, on July 2 an Illinois federal district court rejected arguments by state and local Republican organizations that the governor's COVID Order placing more restrictions on political party gatherings than religious gatherings violates the First and Fourteenth Amendments. On July 3, the U.S. 7th Circuit Court of Appeals denied plaintiffs' application for a injunction pending appeal. Plaintiffs immediately filed an Emergency Application for an Injunction (full text) with the U.S. Supreme Court, through a filing with Justice Kavanaugh who is Circuit Justice for the 7th Circuit.  The petition requested relief by 5:00 pm on July 4. On July 4, Justice Kavanaugh denied the request. Washington Examiner reports on the Supreme Court's action.

British Pastors Sue Challenging Government COVID-19 Orders Which Closed Churches

In Britain, a group of 26 Christian pastors and activists have filed suit challenging the closure of churches as part of the response to COVID-19, even though the government has allowed reopening of churches as of July 4.  The complaint (full text) in The Queen on application of Omooba v. Secretary of State for Health and Social Care, (QB, filed 6/23/2020), contends in part:

The Claimants do not for a moment suggest that churches should have continued to operate as before notwithstanding the Coronavirus epidemic. Rather, the Claimants’ concern is that, as a matter of principle, the imposition of appropriate anti-epidemic measures in the Church is ultimately a matter for Church authorities rather than secular state authorities.

Christian Concern issued a press release announcing the filing. Free Thinker blog has additional reporting.

Illinois Can Favor Religious Gatherings Over Political Ones

In Illinois Republican Party v. Pritzker, (ND IL, July 2, 2020) an Illinois federal district court rejected arguments by state and local Republican organizations that the governor's COVID Order placing more restrictions on political party gatherings than religious gatherings violates the First and Fourteenth Amendments. The court said in part:

Because the exemption is a content-based restriction, this provision can only stand if it survives strict scrutiny....

Plaintiffs contend that the Governor cannot satisfy the least restrictive means test because a political party caucus is no more likely to spread COVID-19 than a church service.... However, the Constitution does not accord a political party the same express protections as it provides to religion.... Additionally, the Order’s limited exemptions reinforce that it is narrowly tailored. The Order only exempts two other functions from the gathering limit: emergency and governmental functions. These narrow exemptions demonstrate that the Order eliminates the increased risk of transmission of COVID-19 when people gather while only exempting necessary functions to protect health, safety, and welfare and free exercise of religion. Therefore, the Governor has carried his burden at this stage in demonstrating that the Order is narrowly tailored to further a compelling interest, and the Order survives strict scrutiny.

Execution Delay Sought Because of Health of Chaplain

USA Today reports on anew twist in litigation seeking to delay execution of an inmate.  A suit was filed in federal district court in Indiana seeking a stay:

The lawsuit, filed on behalf of a Buddhist priest who has ministered to condemned inmate Wesley Purkey, argues that the pandemic would risk the health of Rev. Seigen Hartkemeyer who is "religiously obligated" to attend Purkey's July 15 execution....

Purkey's lawyers asserted that Rev. Hartkemeyer, 68, has lung-related illnesses that "make him particularly vulnerable to COVID-19."

The lawsuit claims that the timing of the execution, "forcing Rev. Hartkemeyer to risk his health and life to perform his religious duties as Purkey’s priest," violates the Religious Freedom Restoration Act. 

Supreme Court Denies Review To Deported Iraqi Christians, Yezidis, Kurds

The U.S. Supreme Court yesterday denied review in Hamama v. Adducci,  (Docket No. 19-294, cert denied 7/2/2020). (Order List). According to the petition for certiorari:

Petitioners are Iraqis with final orders of removal who lived for years or decades in the United States under orders of supervision...  Petitioners and others similarly situated were suddenly detained and threatened with immediate removal, without the opportunity to challenge their removal in immigration court. Petitioners, who include Christians, Yezidis, Kurds, and other religious and ethnic minorities in Iraq, faced likely torture and death in Iraq. After their final orders of removal were issued, country conditions in Iraq had changed drastically, such that Petitioners had strong claims for deportation protection under, inter alia, the Convention Against Torture. In order to assert those claims, Petitioners needed to move to reopen their final orders in the appropriate immigration court.... Petitioners requested a temporary stay of removal so they could access the immigration court system. The district court granted the stay, giving Petitioners 90 days after receipt of the necessary immigration court files to file motions to reopen in immigration court. The court of appeals reversed, holding that 8 U.S.C. § 1252(g) divested the district court of jurisdiction and that the elimination of jurisdiction was consistent with the Suspension Clause. 

Supreme Court Clears Docket In Light of Two Recent Major Decisiions.

In orders released yesterday (Order List), the U.S. Supreme Court cleared its docent of a number of abortion cases in light of its decision earlier this week in June Medical Services v. Russo.  The court granted certiorari and summarily vacated the judgment below and remanded to the 7th Circuit two appeals in Box v. Planned Parenthood of Indiana and Kentucky (Docket No. 18-1019 and 19-816). The Court also denied certiorari in Yost v. Planned Parenthood, (Docket No. 19-677) and Hill v. Whole Woman's Health, (Docket No. 19-743).

In light of its school aid decision earlier this week in Espinoza v. Montana Department of Revenue, the Court granted certiorari, summarily vacated the judgment below and remanded to the 7th Circuit the appeal in St. Augustine School v. Stand.

EEOC Wins Suit On Behalf of Fired Jehovah's Witness

The EEOC announced yesterday that a New York federal district court has entered a consent decree in a religious discrimination lawsuit brought on behalf of a Jehovah's Witness who was fired as an administrative assistant at a Manhattan pediatric medical practice:

Pediatrics 2000 was aware that its worker was a Jehovah’s Witness when she was hired and initially accommodated her request not to work on Wednesdays due to her religious practices on that day. But then the company demonstrated animus toward her religion, saying that her religion was a “cult,” and placed her on probation for “missing” work on Wednesdays. When the worker requested to be excused from the company’s holiday party for religious reasons, she was fired — even though other employees were permitted to miss the party for non-religious reasons....

The decree gives $68,000 in lost wages and other damages for the worker and grants injunctive relief, including: the creation of anti-discrimination policies and procedures....

Church's Appeal of Visa For Its Music Director Fails

In Liberty Church of the Assemblies of God v. Pompeo, (D MA, July 1, 2020), a Massachusetts federal district court invoked the doctrine of consular non-reviewability to dismiss a church's appeal of the denial of an R-1 visa to its Director of Music and Media.

[T]he complaint fails to plausibly plead a violation of Liberty Church’s constitutional rights. Although Liberty Church broadly alleges that the act of denying Mr. Rocha a visa infringed its rights under the Establishment Clause by making it “suddenly and unduly unable to establish church services” ..., it has not explained how it has been unable to establish church services in the wake of the denial. There is no indication, for example, that Liberty Church cannot operate without Mr. Rocha.... Indeed, the allegations in the complaint suggest the exact opposite.... To the extent Liberty Church instead means to contend that it needs someone (if not Mr. Rocha himself) to serve as Director of Music and Media, nothing in the complaint would allow the Court to reasonably infer that the denial of Mr. Rocha’s visa application rendered Liberty Church unable to employ a Director of Music and Media.

Appeals Court Upholds NY Abortion Coverage Requirement

In Roman Catholic Diocese of Albany v Vullo, (NY App.Div., July 2, 2020), a New York state appellate court rejected a challenge by several religious organizations and other plaintiffs to a New York administrative regulation  requiring health insurance policies in New York to provide coverage for medically necessary abortion services. The court held that the case was governed by a 2006 decision of New York's highest court rejecting a challenge to a state statutory requirement that health insurance policies which provide coverage for prescription drugs must include coverage for prescription contraceptives, saying in part:

The overriding reason for such rejection — equally applicable in the instant case — was that the WHWA set forth a neutral directive with respect to prescription medications to be uniformly applied without regard to religious belief or practice, except for those who qualified for a narrowly tailored religious exemption 

The court also rejected the argument that the Superintendent of Financial Services had exceeded his regulatory authority in promulgating the regulation.

Suit Challenges Virginia's Ban On LGBT Discrimination In Public Accommodations

Suit was filed on Tuesday in a Virginia federal district court by a wedding photographer challenging the Virginia Values Act which  prohibits businesses from discriminating on the basis of sexual orientation. The complaint (full text) in Chris Herring Photography, LLC v. Herring, (ED VA, filed 6/30/2020) alleges in part:

Virginia interprets this law to force Chris to do more than serve LGBT clients (which Chris already does). Virginia instead requires Chris to promote content he disagrees with—to create and convey photographs and blogs celebrating same-sex weddings because he does so for weddings between a man and a woman. The law even makes it illegal for Chris to hold a policy of photographing and blogging about weddings only between a man and woman or to post internet statements explaining his religious reasons for only creating this wedding content.

ADF issued a press release announcing filing of the lawsuit.

California Sues Cisco Alleging Caste-Based Discrimination

In a June 30 press release, the California Department of Fair Employment & Housing announced the filing of an unusual employment discrimination lawsuit against Cisco Systems, Inc. and two of its managers:

The lawsuit alleges that managers at Cisco’s San Jose headquarters campus, which employs a predominantly South Asian workforce, harassed, discriminated, and retaliated against an engineer because he is Dalit Indian, a population once known as the “untouchables” under India’s centuries-old caste system....

The lawsuit alleges that Complainant was expected to accept a caste hierarchy within the workplace where he held the lowest status within a team of higher-caste colleagues, receiving less pay, fewer opportunities, and other inferior terms and conditions of employment because of his religion, ancestry, national origin/ethnicity, and race/color.

The Print reports on the lawsuit.

White House Praises Espinoza Decision

The White House press secretary yesterday issued the following statement (full text) on the Supreme Court's decision in Espinoza v.Montana Department of Revenue:

We celebrate today’s Supreme Court decision on religious schools, which removes one of the biggest obstacles to better educational opportunities for all children.  States may no longer hide behind rules motivated by insidious bias against Catholics, known as Blaine Amendments, to exclude religious schools from public benefits.  Laws that condition public benefits, like need-based academic scholarships, on religious status demonstrate state-sanctioned hostility to religion, pressure people and institutions to censor their religious views, and stigmatize disfavored religions.  The Trump Administration believes that school choice is a civil rights issue, and that no parent should be forced to send their child to a failing school.  President Donald J. Trump will fight for school choice, and he will always defend our first freedom: the free exercise of religion.

Supreme Court Says Montana Cannot Exclude Religious Schools From Tax-Credit Program

In Espinoza v. Montana Department of Revenue, (US Sup. Ct., June 30, 2020), the U.S. Supreme Court in a 5-4 decision held that Montana's exclusion of religious schools from its scholarship tax credit program violates the Free Exercise clause of the U.S. Constitution.  The Montana Supreme Court had invalidated the entire scholarship program because it included religious schools, relying on the "no aid" provision of the Montana constitution.  Chief Justice Roberts majority opinion, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, said in part:

This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affiliated schools.”... Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.”... The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.”...

...Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.

Justice Thomas filed a concurring opinion which was joined by Justice Gorsuch, saying in part:

I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.

Justice Alito filed a concurring opinion, saying in part:

Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,”... known as “common schools” during the Blaine era. Yet just as one cannot separate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”  Spearheaded by Horace Mann, Secretary of the Massachusetts Board of Education from 1837 to 1848, the common-school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly difficult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common denominator Protestantism.”This was accomplished with daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” ... Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.

Mann’s goal was to “Americanize” the incoming Catholic immigrants. In fact, he and other proponents of the common-school movement used language and made insinuations that today would be considered far more inflammatory.

Justice Gorsuch filed a concurring opinion, saying in part:

 I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way....

Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion....

Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.

Justice Ginsburg filed a dissenting opinion, joined by Justice Kagan, saying in part:

[T]he Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.

Justice Breyer filed a dissenting opinion, joined in part by Justice Kagan, saying in part:

It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “‘propos[e] to do—use the funds to’” obtain a religious education. ....

I agree with the majority that it is preferable in some areas of the law to develop generally applicable tests. The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it particularly difficult to design a test that vindicates the Clauses’ competing interests in all—or even most—cases.That is why, far from embracing mechanical formulas, our precedents repeatedly and frankly acknowledge the need for precisely the kind of “‘judgment-by-judgment analysis’” the majority rejects.

Justice Sotomayor filed a dissenting opinion, saying in part:

Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely....

To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education. But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise....

[T]he Montana Supreme Court remedied a state constitutional violation by invalidating a state program on state-law grounds, having expressly declined to reach any federal issue....

NPR reports on the decision.

European Court Says Greece Should Not Have Indicated Non-Christening On Birth Record

In Stavropoulos and others v. Greece, (ECHR, June 25, 2020), the European Court of Human Rights, in a Chamber Judgment, held that Greece violated the religious freedom rights of parents when when their child's first name was entered into the birth record with an abbreviation in brackets next to it indicating that the parents had not christened the child.  The court, finding a violation of the European Convention on Human Rights, said in part:

[T]he Court shares the applicants’ view that the note “naming” next to the third applicant’s first name carries a connotation, namely that she was not christened and that her name was given by the civil act of naming. That conclusion is further reinforced by the section concerning christening that is included in the birth registration act which ... has been left blank. Such information appearing in a public document issued by the State constitutes an interference with the right of all of the applicants not to be obliged to manifest their beliefs, which is inherent in the notion of freedom of religion and conscience as protected by Article 9 of the Convention. That is because it implies that the first and second applicants, as the parents and legal guardians of the third applicant, chose not to have the third applicant christened.

The court awarded damages of €10,000, plus costs, to petitioners.

Supreme Court Invalidates Louisiana Abortion Law Requiring Clinic Doctors To Have Hospital Admitting Privileges

The U.S. Supreme Court today in June Medical Services L.L.C. v. Russo, (U.S. Sup. Ct., June 29, 2020), by a 5-4 vote, struck down Louisiana's law that requires doctors at abortion clinics to hold active admitting privileges at a hospital within 30 miles of the clinic.  At issue in the case were (1) whether abortion providers have standing to assert their patients' abortion rights, and (2) whether the Louisiana statute is constitutional.  The Court in 2016 in Whole Women's Health v. Hellerstedt struck down a similar Texas statute.

Justice Breyer wrote today's plurality opinion which was joined by Justices Ginsburg, Sotomayor and Kagan.  As to standing, the plurality held:

The State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question.

The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here.

On the merits, the plurality said in part:

The District Court found that enforcing the admitting privileges requirement would “result in a drastic reduction in the number and geographic distribution of abortion providers.” ... In light of demographic, economic, and other evidence, the court concluded that this reduction would make it impossible for “many women seeking a safe, legal abortion in Louisiana . . . to obtain one” and that it would impose “substantial obstacles” on those who could....

The District Court found that there was “‘no significant health-related problem that the new law helped to cure.’” ...

We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion.

Chief Justice Roberts filed a concurring opinion, saying in part:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.....

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

Justice Thomas filed a dissenting opinion, saying in part:

Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” ... a majority of the Court all but ignores the question. The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.

Justice Alito filed a dissenting opinion, joined by Justice Gorsuch, and joined in part by Justices Thomas and Kavanaugh, saying in part:

The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record. And the plurality upholds the District Court’s finding that the Louisiana law would cause a drastic reduction in the number of abortion providers in the State even though this finding was based on an erroneous legal standard and a thoroughly inadequate factual inquiry....

Both the plurality and THE CHIEF JUSTICE hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. .... [T]he idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

Justice Gorsuch filed a dissenting opinion, saying in part:

The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

Today’s decision doesn’t just overlook one of these rules. It overlooks one after another....

Justice Kavanaugh filed a dissent, saying in part:

[I]n my view, additional fact finding is necessary to properly evaluate Louisiana’s law. As JUSTICE ALITO thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors ... cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.

New York Times reports on the decision.

Recent Articles of Interest

From SSRN:

• Claudio Antonio Klaus Junior, Religious Freedom as a Human Right: An International Overview Focusing on Brazil, (May 7, 2019).
• Eli Wald, Jewish Lawyers and the Legal Profession: The End of the Affair?, (Touro Law Review, Vol. 36, No. 299, 2020).
• Anver M. Emon & Aaqib Mahmood, Canada v. Asad Ansari: Avatars, Inexpertise, and Racial Bias in Canadian Anti-Terrorism Litigation , (Michael Nesbitt and Kent Roach, eds. Toronto 18 Terrorism Trials. Calgary: University of Calgary (Forthcoming)).
• Kalyani Abhyankar, Lynching: A Threat to Democracy, (May 29, 2020).
• Marc Spindelman, The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, Part I, (81 Ohio State Law Journal Online 81 (2020)); Part III, (81 Ohio State Law Journal Online 101 (2020).
• Zachary B. Pohlman, Catholic Social Teaching and the Role of the Prosecutor, (54 Creighton Law Review, Forthcoming 2021).
• Caroline Mala Corbin, Religious Liberty in a Pandemic, (June 23, 2020).
• Andrew M. Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, (Minnesota Law Review Headnotes, Forthcoming).

From SSRN (Islamic Law);

• Aisha Saad, The Corporate Waqf in Law and Practice, (10 Berkeley J. Middle E. & Islamic L. (2019)).
• Aziz Z. Huq, Illiberalism and Islam, (Routledge Handbook of Illiberalism, 2020).
• Muhammad Munir, Does a Compromise Blot out Both Guilt and Punishment? Analyzing Qiṣāṣ and Diyat Provisions of Criminal Law in Pakistan under the Injunctions of Islam, (Islamic Studies, Vol. 59:1 (2020), pp. 1-16).
• Md Tasnimul Hassan, Basics of Muslim Family Law, (May 31, 2020).

From SmartCILP and elsewhere:

• Journal of Law & Religion, Vo. 35, Issue 1, (April 2020).
• Jeremiah Bourgeois, The Tribulations of Miller's Children: How Cruel and Unusual Punishments Produced Establishment Clause Violations, [Abstract], 46 American Journal of Criminal Law 1-12 (2019).
• William N. Eskeridge, Jr., Ohio's 2004 Super-DOMA: Popular Constitutionalism and Normalization in the Marriage Equality Debate, 47 Capital University Law Review 695-754 (2019).

Court Allows Most of Abused Plaintiff's Claims Against Diocese To Proceed

In Doe v. Norwich Roman Catholic Diocesan Corp., 2020 Conn. Super. LEXIS 616 (CT Super. Ct., May 26, 2020), a Connecticut trial court refused to dismiss many of the allegations in a lawsuit alleging that a Catholic diocese acted negligently and recklessly in a manner leading to sexual abuse of the plaintiff by two Catholic priests between 1978 and 1988. According to the court:

The challenged allegations include the plaintiff's claims alleging the defendants' failure to immediately remove Charles Many or J. Lawrence Ouimet from their assigned roles, provide training and/or educational programs as it pertains to proper conduct toward parishioners, promulgate policies and rules proscribing priests from taking children into private rooms when the defendants knew or should have known that priests in the defendant Diocese had sexually assaulted children under such circumstances, develop and implement a program or policy with regard to the issue of improper sexual conduct, and police the activities of the priests, particularly Charles Many and J. Lawrence Ouimet, upon the premises that the defendants owned and controlled. 

... [T]the majority of the plaintiff's challenged allegations involve a factual inquiry and do not require an interpretation or weighing of a religious belief, doctrine or practice that is undertaken for religious reasons.... These allegations concern child sex abuse by a Catholic priest, and whether the Diocesan Corporation knew or should have known of the same, about which there would be no need for the court to evaluate the proprieties of scripture or religious teachings.

The court did dismiss a portion of the allegations which involve religious decisions or religion-based obligations.

New York Enjoined From Enforcing Stricter Limits Against Worship Services

In Soos v. Cuomo, (ND NY, June 26, 2020), a New York federal district court granted a preliminary injunction barring New York from enforcing COVID-19 orders that impose stricter limits on worship services than on other activities. The suit was brought by two Catholic priests and three Orthodox Jews.  The court said in part:

Assuming, without deciding, that the challenged laws are neutral, plaintiffs have demonstrated a likelihood of success on the merits with respect to their free exercise claim because it appears that the challenged laws are not generally applicable, and that they would fail strict scrutiny....

On its face, the 25% indoor capacity limitation applies only to houses of worship... Indeed, that limitation is the only one of its kind in the tangle of executive orders and the Guidance Document that have been issued in response to the pandemic; in other words, no other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, are limited to only 25% capacity. The “nonessential businesses,” dubbed “Phase 2 industries” by executive order, that enjoy a 50% capacity limitation are, however, not justifiably different than houses of worship.

The court enjoined the state:

(1) from enforcing any indoor gathering limitations against plaintiffs greater than imposed for Phase 2 industries, provided that plaintiffs follow social distancing requirements as set forth in the applicable executive orders and guidance; and

(2) from enforcing any limitation for outdoor gatherings provided that participants in such gatherings follow social distancing requirements as set forth in the applicable executive orders and guidance.

Thomas More Society issued a press release announcing the decision.

Suit Challenges Rollback of Health Care Anti-Discrimination Rule

Suit was filed today in a New York federal district court by two transgender women of color challenging the Department of Health and Human Services' recent rule revisions that roll back health care anti-discrimination coverage for gay and transgender individuals. The complaint (full text) in Walker v. Azar, (ED NY, filed 6/26/2020), alleges in part:

2. The 2020 Rule directly contravenes the Supreme Court of the United States’ recent holding in Bostock v. Clayton Cty., Georgia ... (June 15, 2020), that discrimination “on the basis of sex” includes, without reservation, discrimination based on an individual’s gender identity, including transgender status, or sexual orientation.

3. If allowed to take effect, the 2020 Rule will directly threaten the ability of members of the LGBTQ community to access medically necessary, potentially life-saving medical and health care by removing clear prohibitions against discrimination. And even if members of the LGBTQ community are able to access such health care, the 2020 Rule puts them at grave risk of inadequate care wrought with discrimination solely on account of their identities, which the 2020 Rule makes permissible.

Human Right Campaign issued a press release announcing the filing of the lawsuit and providing additional background.

Charter School May Not Exclude Vendor That Expresses Religious Views On Its Website

In Our Peculiar Family v. Inspire Charter Schools, (CD CA, June 23, 2020), a California federal district court refused to dismiss a free exercise challenge to the refusal by a publicly funded charter school to contract with an art instruction business because of the business' espousal of religious views on its website. The court said in part:

Defendants argue that their obligation to be “nonsectarian” in administering a school program required them to exclude any vendor that publicly espoused religious views.... Defendants are incorrect. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)....

Defendants’ policies here are even more preclusive than the unconstitutional policies in Trinity Lutheran. Not only do Defendants’ policies exclude all churches from providing services, they apparently preclude all services by any potential vendor with religious statements on their website. Defendants do not explain how institution of such a categorical requirement is in keeping with their obligation to facilitate “nonsectarian” services, nor do they offer facts to support that Plaintiffs’ application implicated Establishment Clause concerns. 

Supreme Court Rejects Asylum Seeker's Challenge To Limits On Review Of Claims

The U.S. Supreme Court today in Department of Homeland Security v. Thuraissigiam, (US Sup. Ct., June 25, 2020) upheld against constitutional attack a provision in the immigration law that prevents applicants for asylum from appealing to federal courts through a habeas corpus petition an immigration judge's conclusion that the applicant lacks a "credible fear of persecution".  The court rejected arguments that the limitation violates the Constitutional ban on suspending habeas corpus and violates due process. Justices Breyer and Ginsburg concurrd, but would limit the holding to the facts of this case. Justices Sotomayor and Kagan dissented. NPR reports on the decision.

Executive Order Encourages State Cooperation With Faith-Based Child Welfare Agencies

President Trump yesterday signed an Executive Order (full text) on Strengthening the Child Welfare System. The Order encourages "close partnerships between State agencies and nongovernmental organizations, including public, private, faith-based, and community groups." (HHS press release).

Iowa Abortion Waiting Period Challenged On State Constitutional Grounds

Suit was filed this week in an Iowa state trial court challenging a provision enacted earlier this month requiring women seeking an abortion to first visit a health center to receive an ultrasound and specified information, and then wait at least 24 hours before returning to have an abortion.  The complaint (full text) in Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., filed 6/23/2020) challenges the provision only on state constitutional grounds.  It focuses on the Iowa Constitution's single subject, due process, equal protection and inalienable rights provisions, and alleges in part:

The Amendment will be especially harmful during the current COVID-19 pandemic....

[B]y requiring an additional, medically unnecessary visit for abortion patients, despite the overwhelming consensus that providers should be reducing medically unnecessary medical visits during the pandemic, the Amendment puts patients and medical providers at increased risk of COVID-19 transmission....

By imposing a delay on abortion—a delay that the Legislature does not impose on any other medical procedure—the Amendment conveys that the Legislature believes women are not competent to make considered, appropriate medical decisions for themselves and their families, and must instead be forced by the state to reconsider their medical decisions....

[Thanks to Scott Mange for the lead.]

Courthouse News Service reports on the lawsuit.

Saudi Arabia Limits Hajj To Residents To Limit COVID Spread

Saudi Arabia's Ministry of Hajj and Umrah announced on Monday that because of COVID-19 the Hajj this year will be extremely limited, saying in part:

in light of the continuation of the pandemic and the risks of Coronavirus spreading in crowded spaces and large gatherings, and its transmission between countries,  and the increase in average infections globally, it has been decided that Hajj for this year (1441 H/ 2020 AD) will be held whereby a very limited number of pilgrims from various nationalities who already reside in Saudi Arabia, would be able to perform it.  This decision is taken to insure Hajj is performed in a safe manner from a public health perspective while observing all preventative measures and the necessary social distancing protocols....

Georgia Enacts Hate Crime Law

As reported by the Atlanta Journal Constitution, the Georgia legislature yesterday gave final passage (legislative history) to HB 426 (full text) which provides enhanced criminal penalties for assault, battery, theft and criminal trespass motivated by the victim's actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability.  The bill also provides for enhanced reporting of bias-motivated crimes. Gov. Brian Kemp says he will sign the bill.

Suit Challenges City's Ban On Religious Christmas Displays On Public Property

The Knights of Columbus filed suit in a Delaware federal district court yesterday challenging Rehoboth Beach's policy adopted in 2018 of allowing only secular Christmas displays at the city's Bandstand Circle. The complaint (full text) in Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, filed 6/23/2020), alleges that since the 1930's a nativity scene had been displayed there during the Christmas season. It contends that the city, in allowing private groups to still erect secular displays, but insisting that the K of C display be placed on private property, violates plaintiff's free speech, free exercise and equal protection rights. First Liberty Institute issued a press release announcing the filing of the lawsuit.

South Carolina Episcopal Parishes All Win Title To Their Property

In Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (SC Common Pleas, June 19, 2020), a South Carolina trial court was called upon to interpret a confusing decision by the South Carolina Supreme Court in a long-running property dispute that arose after a split in the Episcopal Church in South Carolina.  In a 2017 decision, the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages purported to resolve the factional property dispute. The trial court concluded that, under the state Supreme Court's decision, 36 parishes are the owners of their parish real estate and accompanying personal property. The court said in part:

This Court must distill the five separate opinions, identify the Court’s intent, and produce a logical directive. It must harmonize these opinions and find common ground among them. The issue is whether the 1979 Dennis Canon or any parish’s alleged accession to that Canon created a legally cognizable trust under South Carolina law....

At issue is ownership of real property, purchased and managed exclusively by the Plaintiff Parishes including land and buildings, considerable funds, and other personal property such as books, silver, and historical archives. The crux of the disagreement rests upon the Dennis Canon and its legal effect on whether this property was ever held in trust for TEC or TECSC....

This Court finds that the Plaintiffs merely promised allegiance to TEC and without more, this promise cannot deprive them of their ownership rights in their property. This Court finds no Parish expressly acceded to the 1979 Dennis Canon. The Dennis Canon was not mentioned by name in any of the evidence, and Defendants admitted that the Dennis Canon is not referenced in any of the deeds of parish property.... As a result, there is no trust created in favor of the Defendants, TEC and TECSC.

Christian Post reports on the decision.

Suit Challenges Roll-Back of Health Care Protections For Transgender Individuals

Suit was filed yesterday in the D.C. federal district court challenging the Trump Administration's recent rule change that rolled back health care anti-discrimination protection for transgender individuals. The complaint (full text) in Whitman-Walker Clinic, Inc. v. U.S. Department of Health and Human Services, (D DC, filed 6/22/2020) alleges in part:

[T]he Revised Rule imports broad and sweeping exemptions for discrimination based on personal religious or moral beliefs from the identified statutes in Section 1557 [of the Patient Protection and Affordable Care Act] and other statutes, including the Religious Freedom Restoration Act ... which Section 1557 does not reference. These exemptions invite individual health care providers, health care entities, and insurers across the country to opt out of treating patients, including many transgender patients, if they believe doing so would compromise their faith....

HHS’s attempt to create new religious exemptions in Section 1557 is contrary to law and endangers patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them—a result sharply at odds with HHS’s stated mission to “enhance and protect the health and well-being of all Americans” and to “provid[e] for effective health and human services.”

 The Hill reports on the filing of the lawsuit.

DOJ Sues Virginia County Over Restrictions On Creating Muslim Cemetery

Last week, the U.S. Department of Justice filed a federal RLUIPA lawsuit against Stafford County, Virginia. The complaint (full text) in United States v. Stafford County, Virginia, (ED VA, filed 5/19/2020) alleges in part that the county has imposed:

restrictive zoning requirements that preclude the All Muslim Association of America ... from establishing an Islamic cemetery on land it owns, thereby impeding its religious practice of providing low-cost burial services to persons of the Islamic faith. The County’s actions constitute a substantial burden on the free exercise of the religion of the All Muslim Association, in violation of the  Religious Land Use and Institutionalized Persons Act of 2000....

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

Recent Articles of Interest

From SSRN:

• Kristin Pryor, Vaccination and the Effect on Custody When One Parent Opts Out, (May 5, 2020).
• Derek T. Muller, Celebrating the Work of Professor Bob Cochran: An Introduction, (47 Pepperdine Law Review iii (2020)).
• Andrew M. Koppelman, Gay Rights vs. Religious Liberty? The Unnecessary Conflict: Introduction, Oxford University Press, 2020).
• Tarunabh Khaitan & Jane Calderwood Norton, The Right to Freedom of Religion and the Right Against Religious Discrimination: Theoretical Distinctions, (International Journal of Constitutional Law (Forthcoming 2019)).
• Nadia N. Sawicki, Unilateral Burdens and Third-Party Harms: Abortion Conscience Laws as Policy Outliers, (Indiana Law Journal, 2020).
• Michael P. Moreland, Comments on Steven Smith, 'Pagans and Christians in the City', (57 Journal of Catholic Legal Studies 63 (2019)).
• Craig Konnoth, Keynote: The Protection of LGBT Youth, (University of Pittsburgh Law Review, Vol. 81, 2019)).
• Michael Conklin, Good for Thee, but Not for Me: How Bisexuals are Overlooked in Title VII Sexual Orientation Arguments, U. Miami Race & Soc. Just. L. Rev. (forthcoming 2020).
• Ioanna Tourkochoriti, How Far Should the State Go to Counter Prejudice? On the Legitimacy of the Role of the State to Change Hearts and Minds, (Erasmus Law Review, 2020).
• Michael Conklin, Was the 'Trump Bump' a One-Time Phenomenon for Charities?, 32 Chron. Philanthropy 50 (Nov. 5, 2019).

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

• Yuval Shany, Can Strasbourg Be Replicated At a Global Level? A View from Geneva, (Helmut Philipp Aust and Esra Demir-Gürsel (eds.), The European Court of Human Rights - Current Challenges in Historical and Comparative Perspective, Edward Elgar 2020, forthcoming).
• Abubakar Yusuf, A Framework for Understanding Islam and Islamism in Global Politics, (May 23, 2020).
• Muhammad Atif Aslam Rao, The Protection of Woman's Right to Dower in Islamic Law, (March 30, 2019).
• Saadiya Suleman, Mainstreaming Misconceptions- Demonizing Muslim Personal Law: A Comment on the Muslim Women (Protection of Rights on Marriage) Act 2019, (Delhi Journal of Contemporary Law Vol. II (2019).
• Naji Mansour Nomran & Razali Haron, A Systematic Literature Review on Shari’ah Governance Mechanism and Firm Performance in Islamic Banking, (Islamic Economic Studies, Vol. 27, No. 2, 2020).
• Virginia La Torre Jeker, 'Handle With Care: How Sharia Law and U.S. Tax Law Affect the Foundations Regime in the United Arab Emirates', (Tax Notes International Vol. 98 No. 5 May 4, 2020).
• Shahbaz Ahmad Cheema, Inheritance of Full Sister/s with Consanguine Brother/s in Pakistan: A Critical Analysis of Saadullah v Gulbanda, (May 21, 2020).
• Bernard Adaafu Okpi, How to Divorce: A Legal Digest, (May 21, 2020).

From SmartCILP:

• Peter Manus, Justice Gorsuch's Crusade: The Inviolable Power of Religion, [Abstract], 28 Boston University Public Interest Law Journal 195-245 (2019).
• Volume 4 Buddhism Law & Society pp. 1-196, 2018-2019.

5th Circuit Dismisses Church's Challenge To COVID-19 Order As Moot

In Spell v. Edwards, (5th Cir., June 18, 2020), the U.S. 5th Circuit Court of Appeals dismissed as moot a constitutional challenge to Louisiana Governor John Bel Edwards' COVID-19 order that restricted in-person church services to ten congregants. On June 5, the Governor issued a new order allowing churches to operate at 50% of capacity. Judge Ho concurred, but said that a future case might turn out differently.  He said in part:

If protests are exempt from social distancing requirements, then worship must be too....

Such support for the protests reflects a commendable commitment to equality. But public officials cannot devalue people of faith while elevating certain protestors. That would offend the First Amendment—not to mention the principle of equality for which the protests stand.

Injunction and $1M Damages For False Use Of Kosher Certification Symbol

In Chicago Rabbinical Council v. Abdul Rehman Group, Inc., (ND IL, June 9, 2020), an Illinois federal district court awarded statutory damages of $1 million under the Lanham Trademark Act to the Chicago Rabbinical Council ("cRc") in its suit against a company that was without authority applying a cRc logo to its food products, falsely indicating that they had been approved as kosher.  The court also issued a broad injunction barring defendant from using the cRc logo in any way to mislead others into believing that its products were certified by cRc. Kosher Today reports on the decision.

Suit Challenges COVID-19 Closure of Jewish Overnight Camps

Suit was filed yesterday in a New York federal district court challenging New York COVID-19 orders that require Jewish overnight camps to remain closed this summer. The complaint (full text) in Association of Jewish Camp Operators v. Cuomo, (ND NY, filed 6/18/2020), alleges in part:

5. On June 12, 2020, Defendant announced that overnight camps would be closed for the summer of 2020 under his COVID-19 orders, without making any exceptions for Jewish overnight camps, notwithstanding that these overnight camps involve core religious exercise.

6. In contrast, Defendant has made a broad First Amendment exception from his COVID-19 orders for First Amendment activities that he favors. In particular, Defendant has created a de facto exemption from his COVID-19 orders for mass demonstrations ... even though these mass protests pose greater risks of the transmission of COVID-19 than do Jewish overnight camps.

7. Defendant also has allowed a wide array of similar, secular activities to remain open....

11. Defendant’s statewide closure of all Jewish overnight camps this summer violates Plaintiffs’ constitutional rights of the free exercise of religion and the fundamental rights of parents to control the religious education and upbringing of their children, guaranteed by the First and Fourteenth Amendments of the United States Constitution and Article III, § 3 of the New York Constitution. 

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

Ohio Passes Student Religious Liberties Act

The Ohio legislature yesterday gave final passage to the Student Religious Liberties Act (HB 164) (full text).  The bill now goes to the governor for his signature. The bill provides in part:

Sec. 3320.02. (A) A student enrolled in a public school may engage in religious expression before, during, and after school hours in the same manner and to the same extent that a student is permitted to engage in secular activities or expression before, during, and after school hours.

(B) A school district ... shall give the same access to school facilities to students who wish to conduct a meeting for the purpose of engaging in religious expression as is given to secular student groups, without regard to the content of a student's or group's expression.

Sec. 3320.03. No school district ... shall prohibit a student from engaging in religious expression in the completion of homework, artwork, or other written or oral assignments. Assignment grades and scores shall be calculated using ordinary academic standards of substance and relevance, including any legitimate pedagogical concerns, and shall not penalize or reward a student based on the religious content of a student's work.

Cleveland.com and BJC (Don Byrd) report on the legislature's action.

UPDATE: Governor DeWine signed the bill on June 19. (AP)

European Court Awards Damages To Widow Whose Inheritance Was Reduced Under Sharia Law

As previously reported, in 2018 the European Court of Human Rights held that Greece had violated Art. 14 of the European Convention on Human Rights which bans discrimination on the basis of religion when it insisted that Sharia law be applied to a wife's inheritance rights.  Sharia law resulted in her receiving only 25% of what she was bequeathed to under under a will left by her husband.  The court, however, left open the question of damages. Now in Sali v. Greece,  (ECHR, June 18, 2020), the Court held that Greece should taking steps to ensure that the wife retains her ownership of the property in Greece left to her by her husband. However if the government does not do this within a year, the Court held that Greece should compensate her for the value of the property lost, which amounts to a little over 41,000 Euros. She was also awarded 10,000 Euros for the suffering caused by the discrimination against her. Courthouse News Service reports on the decision. Three dissenting judges thought that the court should also have dealt with property in Turkey left to the wife.

Notre Dame Launches Religious Liberty Clinic

Notre Dame Law School announced yesterday that it is creating the Notre Dame Religious Liberty Clinic.  Prof. Stephanie Barclay will head the new initiative.  She comes to Notre Dame from the faculty of Brigham Young University’s J. Reuben Clark Law School.

Cert. Petition Filed In Title VII Reasonable Accommodation Case

A petition for certiorari (full text) was filed this week in Small v. Memphis Light, Gas and Water, (Sup. Ct., file 6/16/2020). In the case, the U.S. 6th Circuit Court of Appeals affirmed the dismissal of an employment discrimination claim by a Jehovah's Witness, concluding that Memphis Light adequately accommodated their employee's religious beliefs when it allowed him to swap shifts with other employees. (See prior posting.) The petition for review presents the question as:

Whether Trans World Airlines, Inc. v. Hardison, 432 U.S. 63, 84 (1977), which stated that employers suffer an “undue hardship” in accommodating an employee’s religious exercise whenever doing so would require them “to bear more than a de minimis cost,” misinterprets § 2000e(j) and should be overruled.

[Thanks to Jim Sonne for the lead.]

Russian Court Sentences Jehovah's Witness To 6½ Years In Prison

Forum 18 reports that in the Russian city of Pskov, a trial court has sentenced a 61-year old Jehovah's Witness to 6½ years imprisonment on charges of financing extremist activity.  This is the longest sentence imposed on a Jehovah's Witness since the 2017 Russian Supreme Court decision banning Jehovah's Witness activity.  A 6-year sentence was imposed on another Jehovah's Witness by a court in the city of Oryol last year.

Minister Challenges Louisiana Cockfighting Ban

Suit was filed last week in a Louisiana federal district court by Holy Fight Ministries and its minister claiming that Louisiana's ban on cockfighting violates their federal and state free exercise rights as well as the Establishment Clause. The complaint (full text) in Plumbar v. Landry, (MD LA, filed 6/12/2020), alleges in part:

Reverend Plumbar, Holy Fight Ministries and its congregation hold the sincere religious belief that cockfighting represents that while they strive for CHRIST, they have a necessary symbolic physical manifestation, an epiphany through the fighting cock, a religious mandate of the struggle between good and evil, a struggle for life or death for the Salvation of the soul, and thus cockfighting is an integral and essential part of their religious faith.

[Thanks to Scott Mange for the lead.]

7th Circuit Upholds Illinois COVID-19 Restrictions On Worship Services

In Elim Romanian Pentecostal Church v. Pritzker, (7th Cir., June 16, 2020), the U.S. 7th Circuit Court of Appeals rejected a church's challenge to Illinois Governor J.B. Pritzker's COVID-19 orders which restrict-- or in their latest form urge restriction-- on the size of worship services. The court said in part:

Plaintiffs maintain ... that the ten-person cap disfavors religious services compared with, say, grocery shopping (more than ten people at a time may be in a store) or warehouses (where a substantial staff may congregate to prepare and deliver the goods that retail shops sell)....

So what is the right comparison group: grocery shopping, warehouses, and soup kitchens, as plaintiffs contend, or concerts and lectures, as Illinois maintains? Judges of other appellate courts have supported both comparisons....

It would be foolish to pretend that worship services are exactly like any of the possible comparisons, but they seem most like other congregate functions that occur in auditoriums, such as concerts and movies.... Functions that include speaking and singing by the audience increase the chance that persons with COVID-19 may transmit the virus through the droplets that speech or song inevitably produce....

Courthouse News Service reports on the decision.

Supreme Court Stays Execution Of Prisoner Denied A Chaplain In the Execution Chamber

The U.S. Supreme Court today granted a stay of execution pending its decision on whether to grant review in Gutierrez v. Saenz. Ruben Gutierrez's execution was scheduled for today.  In the case the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber. (See prior posting.)  The Supreme Court, while now granting a stay until it either denies certiorari or it grants review and decides the case (full text of Order), added as part of its order:

The District Court should promptly determine, based on whatever evidence the parties provide, whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.

USA Today reports on the Court's decision.

5th Circuit Upholds Texas Prison Chaplain Execution Protocol

In Gutierrez v. Saenz, (5th Cir., June 12, 2020), the U.S. 5th Circuit Court of Appeals vacated a stay of execution that had been granted to a convicted murderer who complained about Texas' exclusion of chaplains from the execution chamber.  The court said in part:

Gutierrez fails to make a strong showing of a likelihood of success in establishing that TDCJ’s execution policy is not “reasonably related to legitimate penological interests.” ...

Perhaps Gutierrez is being denied the final measure of spiritual comfort that might be available. As important as that is, government action does not rise to the level of a substantial burden on religious exercise if it merely prevents the adherent from enjoying some benefit that is not otherwise generally available.

Supreme Court: Title VII Bans LGBT Discrimination

The U.S. Supreme Court today in a 6-3 decision in Bostock v. Clayton County, Georgia, (Sup. Ct., June 15, 2020), held that the provisions of Title VII of the 1964 Civil Rights Act which prohibit discrimination in employment "because of sex" protect gay, lesbian and transgender individuals.  In an opinion written by Justice Gorsuch, and joined by Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor and Kagan, the court said in part:

Today, we must decide whether an employer can fire someone simply for being homosexual or transgender. The answer is clear. An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.

Those who adopted the Civil Rights Act might not have anticipated their work would lead to this particular result. Likely, they weren’t thinking about many of the Act’s consequences that have become apparent over the years, including its prohibition against discrimination on the basis of motherhood or its ban on the sexual harassment of male employees. But the limits of the drafters’ imagination supply no reason to ignore the law’s demands.  When the express terms of a statute give us one answer and extratextual considerations suggest another, it’s no contest.  Only the written word is the law, and all persons are entitled to its benefit.

Justice Alito filed a dissent, joined by Justice Thomas, saying in part:

The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of “sex” is different from discrimination because of “sexual orientation” or “gender identity.”  And in any event, our duty is to interpret statutory terms to “mean what they conveyed to reasonable people at the time they were written.” A. Scalia & B. Garner, Reading Law: The Interpretation of Legal Texts 16 (2012) (emphasis added)…. 

The Court attempts to pass off its decision as the inevitable product of the textualist school of statutory interpretation championed by our late colleague Justice Scalia, but no one should be fooled. The Court’s opinion is like a pirate ship. It sails under a textualist flag, but what it actually represents is a theory of statutory interpretation that Justice Scalia excoriated––the theory that courts should “update” old statutes so that they better reflect the current values of society.

Justice Kavanaugh also filed a dissent, saying in part:

Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.

The Court's opinion covered three cases, Bostock, Altitude Express, and R.G. & G.R. Harris Funeral Homes. Religion News Service reports on the decision.

Recent Articles of Interest

From SSRN:

• Angela Carmella, Progressive Religion and Free Exercise Exemptions, (Kansas Law Review, Vol. 68, 2020).
• Elizabeth M. Donovan, Catholic Social Teaching and Neo-Abolitionism: Tearing Down the House of the Rising Sun, (Cleveland State Law Review, Vol. 67, No. 3, 2019).
• Angela Carmella, 'Agape' and the Life and Work of Robert F. Cochran, Jr., (47 Pepperdine L. Rev. 287 (2020)).
• Thomas M. Keck, Nathan Carrington & Claire Sigsworth, Minority Rights, Governing Regimes, or Secular Elites: Who Benefits from the Protection of Religious Speech by the U.S. Supreme Court and European Court of Human Rights? (May 13, 2020).
• Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, (169 University of Pennsylvania Law Review, Forthcoming).
• Aaron J. Saiger, School Funding Under the Neutrality Principle: Notes on a Post-Espinoza Future, (88 Fordham L. Rev. Online 213 (2020)).
• Patrick Ward, What is the (Undue) Burden for Reversing Precedent? Analysis of June Medical Services v. Russo in a Newly Configured Supreme Court, (April 15, 2020).

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

• M. Mohsin Alam Bhat Mob, Murder, Motivation: The Emergence of Hate Crime Discourse in India, (16(1) Socio-Legal Review (2020)).
• Ayesha Rasheed, Prioritizing Fair Information Practice Principles Based on Islamic Privacy Law, (Forthcoming, 10 Berkeley Journal of Middle Eastern and Islamic Law (2019)).
• Ahmad Shaikh, The King of Mysore Tipu Sultan and His Religious Legacy, (May 12, 2020).
• M. Mohsin Alam Bhat, Twilight Citizenship, (729 Seminar (May 2020)).

From SmartCILP and elsewhere:

• Paul Baumgardner & Brian K. Miller, Moving from the Statehouses To the State Courts? The Post-RFRA Future of State Religious Freedom Protections, 82 Albany Law Review 1385-1410 (2018-2019).
• Charles J. Russo, Kicking the Can Down the Road in Masterpiece Cakeshop: Is Finding a Happy Medium Possible, Or Will the Solution Remain Half-Baked?, [Abstract], 44 University of Dayton Law Review 399-442 (2019).
• Jeffrey F. Addicott, The Trump Travel Ban: Rhetoric vs. Reality, [Abstract], 44 University of Dayton Law Review 491-528 (2019).
• Zalman Rothschild, Free Exercise in a Pandemic, (University of Chicago Law Review Online (June 2020).

Suit Challenges NY Worship Restrictions vs. Permitted Floyd Protests

Suit was filed last week in a New York federal district court by two Catholic priests and three Orthodox Jews challenging limits on worship services imposed by  New York state and city COVID-19 orders. The complaint (full text) in Soos v. Cuomo, (ND NY, filed 6/10/2020), alleges in part:

[W]hile defendants jointly impose this arbitrary, pseudo-scientific regime of strict gathering limits for some groups and activities but not others, they are permitting closely packed gatherings of thousands to protest the wrongful death of George Floyd at the hands of a police officer, which have been taking place in New York City and every other major city in New York State day-after-day since Floyd’s death on May 25.

Plaintiffs' Memorandum In Support of an Application for a Preliminary Injunction (full text) contends in part:

Here, the Orders only purport to mandate a general limit on non-essential gatherings across the state. But aside from the voluminous formal exemptions that undermine the Orders’ general applicability ..., Defendants recently granted an individualized exemption to mass gatherings protesting the death of George Floyd at the hands of a police officer.... These protests have involved hundreds or thousands of protestors all across the state, often packed together shoulder-to-shoulder in express derogation of the Orders’ limits on gathering sizes and social distancing.... And yet, while Defendants expressly approve of these gatherings, they have insisted that limits on religious gatherings remain in place.... This is exactly the type of disparate individualized assessment that must pass strict scrutiny under the Free Exercise Clause.

Thomas More Society issued a press release announcing the filing of the lawsuit. [Thanks to Steven H. Sholk for the lead.]

UPDATE: Here is defendants' Memorandum of Law in Opposition to Application for Injunctive Relief.

Abortion Rights Groups Sues For Defamation

A lawsuit was filed last week in a Texas state trial court by an abortion rights group charging Right To Life East Texas and its director with defamation.  The complaint (full text) in The Lilith Fund for Reproductive Equity v. Dickson, (TX Dist. Ct., filed 6/11/2020), alleges that plaintiff has been defamed as part of defendants' successful efforts to get various municipalities to enact ordinances, contingent on the Supreme Court's overturning of Roe v. Wade, declaring abortion to be murder. Defendants have labeled plaintiff a criminal organization. The complaint alleges in part:

To be perfectly clear, Lilith Fund is not arguing it has been defamed because Defendants believe or argue that abortion is murder in some moral sense; instead, Lilith Fund has been defamed because Defendants have falsely accused it of assisting in the commission of the specific crime of murder. Lilith Fund has not been defamed because Defendants hope one day to make abortion a crime, but because Defendants presently state that Lilith Fund is, at this moment, breaking the law. These statements are baseless and provably false, and Defendants knew these statements were false when they were uttered as their own statements and the text of the ordinance itself demonstrates. In Texas, this is enough, on its own, to support a claim of defamation, even in the absence of damages.

[Thanks to Scott Mange for the lead.]

Court Upholds Nevada COVID-19 Restrictions On Worship Services

In Calvary Chapel Dayton Valley v. Sisolak, (D NV, June 11, 2020), a Nevada federal district court upheld Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing.  Citing the U.S. Supreme Court's recent South Bay decision, the court said in part:

Given that there are some secular activities comparable to in-person church services that are subject to more lenient restrictions, and yet other activities arguably comparable to in-person church services that are subject to more stringent restrictions, the Court cannot find that the Emergency Directive is an implicit or explicit attempt to specifically target places of worship.... Additionally, whether a church is more like a casino or more like a concert or lecture hall for purposes of assessing risk of COVID-19 transmission is precisely the sort of “dynamic and fact-intensive” decision-making “subject to reasonable disagreement,” that the Court should refrain from engaging in.

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

HHS Adopts Final Rule Rolling Back Transgender and Abortion Protections In Health Care

The Department of Health and Human Services today adopted a final rule that rolls back health care anti-discrimination coverage in federally supported activities and programs. In 2016 by the Obama Administration expanded protections for transgender individuals and for those who had accessed abortion services. The 344-page adopting Release (full text) reversing those changes explains:

The 2016 Rule’s definition of discrimination “on the basis of sex” encompassed discrimination on the basis of gender identity (“an individual’s internal sense of gender, which may be male, female, neither, or a combination of male and female”). In line with that definition, the 2016 Rule imposed several requirements regarding medical treatment and coverage on the basis of gender identity. The same definition also encompassed discrimination on the basis of “termination of pregnancy” without incorporating the explicit abortion-neutrality language of 20 U.S.C. 1688 (which some commenters referred to as the Danforth Amendment) in Title IX, and it imposed a high burden of proof on providers to justify offering gynecological or other single-sex medical services. All of these are essentially legislative changes that the Department lacked the authority to make.

Responding to comments submitted on the Rule in its proposed form, the Release says in part:

The U.S. government has taken the position in Harris and other relevant litigation that discrimination “on the basis of sex” in Title VII and Title IX does not encompass discrimination on the basis of sexual orientation or gender identity. The Department shares that position and is permitted to issue regulations on the basis of the statutory text and its best understanding of the law and need not delay a rule based on speculation as to what the Supreme Court might say about a case dealing with related issues....

The Department does not condone the unjustified denial of needed medical care to anyone, and believes that everyone, regardless of gender identity or sexual orientation, should be treated with dignity and respect. The Department must interpret Congress’s purpose in passing the ACA by reading that statute’s plain text. The ACA sought to expand access to healthcare and healthcare coverage through some means but not others: in particular, Congress saw fit to incorporate into the ACA certain nondiscrimination protections, and not others. For example, in the unlikely event that a healthcare provider were to deny services to someone based solely on his or her political affiliation, the Department would not be able to address such denial of care under Section 1557. Under this final rule, OCR is committed to no less than full enforcement of the prohibitions on discrimination that Congress included in Section 1557, without exceeding the statutory text. Unlike other bases of discrimination, the categories of gender identity and sexual orientation (as well as political affiliation) are not set forth in those statutes.

Bloomberg Law reports on the new rule.

Suit Challenges Illinois Abortion Coverage Mandate

Suit was filed this week in an Illinois state trial court by a religious organization and two employers challenging the Illinois Reproductive Health Act of 2019.  The Act requires every health insurance plan which provides pregnancy-related benefits to also provide coverage for abortion. The complaint (full text) in Illinois Baptist State Association v. Illinois Department of Insurance, (IL Cir. Ct., filed 6/10/2020), contends that the statute violates the Illinois Religious Freedom Restoration Act and the Illinois Health Care Right of Conscience Act. Thomas More Society issued a press release announcing the filing of the lawsuit.

DOJ Proposes Changes In Asylum Procedures

The Departments of Justice and Homeland Security announced yesterday that they have submitted to the Federal Register a Notice of Proposed Rulemaking (full text) that

will create more efficient procedures for the adjudication of claims for asylum, withholding of removal, and protection under the Convention Against Torture (CAT) regulations.

Among the bases for asylum are a "well-founded fear of persecution on account of ... religion [or] membership in a particular social group...."   The proposed rule changes would (among other things):

Amend the regulations governing credible fear determinations so that individuals found to have such a fear will have their claims for asylum, withholding of removal, or protection under the CAT adjudicated by an immigration judge in streamlined proceedings, rather than in immigration court proceedings conducted under section 240 of the Immigration and Nationality Act (INA)...

Raise the burden of proof for the threshold screening of withholding and CAT protection claims from “significant possibility” to a “reasonable possibility” standard...

State Department Releases 2019 International Religious Freedom Report

Yesterday, the U.S. State Department released its 2019 Report on International Religious Freedom. The State Department said in part:

The annual Report to Congress on International Religious Freedom – the International Religious Freedom Report – describes the status of religious freedom in every country. The report covers government policies violating religious belief and practices of groups, religious denominations and individuals, and U.S. policies to promote religious freedom around the world. The U.S. Department of State submits the reports in accordance with the International Religious Freedom Act of 1998.

The State Department presents the Report in an online format that allows readers to select the countries whose activities they wish to see. Secretary of State Pompeo and Ambassador at Large for Religious Freedom Samuel Brownback spoke with the press as they released the report. (Full text of remarks and press conference).