Religion Clause

Monday, August 10, 2020

Sunday, August 09, 2020

Weddings In Restaurant Cannot Be Limited More Than Dining

In DiMartile v. Cuomo, (ND NY, Aug. 7, 2020), a New York federal district court preliminarily enjoined enforcement of a COVID-19 50-person limit on weddings when they are held in a restaurant which is allowed to seat more people when operating for dining. The court said in part:

The Court is not persuaded by the State Defendants’ argument that the fact that part of the purpose of a wedding is for the married couple to interact with friends and family is sufficient to justify finding that weddings are practically dissimilar from ordinary dining and thus do not merit to be treated the same as an ordinary dining use of the venue.

Friday, August 07, 2020

2nd Circuit Enjoins Pending Appeal Vermont's Exclusion of Catholic High School Students From Dual Enrollment Program

As previously reported, earlier this year 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 that pays for high schoolers to take college courses. This week, in E.M. v. French, (2d Cir., Aug. 5, 2020), the U.S. 2nd Circuit Court of Appeals in a brief order granted an emergency injunction pending appeal, saying:

In light of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), Appellants have a strong likelihood of success on the merits of their claims.

ADF issued a press release announcing the 2nd Circuit's action.

Catholic Group Threatens Litigation Over BLM Attempts To Remove References To Famous California Priest

One of the historical figures now seen as problematic by the Black Lives Matter Movement is the 18th century Catholic priest Father Junipero Serra, who was canonized in 2015 by Pope Francis during his trip to the United States. As explained by an RNS article earlier this year:

While Serra is credited with spreading the Catholic faith across what is now California, critics say Serra was part of an imperial conquest that beat and enslaved Native Americans.

Serra, who was born in Spain, came to the Americas in 1749, and in 1769 he founded the first of what would become 21 missions along the California coast.

Native Americans brought into the mission to be evangelized were not allowed to leave the grounds. Many labored for no pay. There is evidence of beatings, imprisonment and other abuse at the hands of the missionaries.

In light of this, the city of San Buenaventura last month voted to remove a statue of Serra that stands in front of City Hall. Recently efforts have been made to remove Serra from the city's police badges and the Ventura County seal. The Thomas More Society contends that these moves are anti-Catholic, and this week it sent a demand letter (full text) to the city and county, saying in part:

should Ventura remove Fr. Serra from its Seal, its Police Badges, or any other similar prominent municipal location, we will bring a claim seeking to enjoin such conduct under the Establishment Clause of the U.S. Constitution, and seek our attorneys’ fees. Our firm was lead counsel in defending the Mt. Soledad Cross in San Diego—which proudly still stands today—and we have extensive experience in ensuring that our attorneys’ fees are paid when we prevail. Thank you for considering the below as you take subsequent action during these times of national and local anti-Catholic sentiment....

For California Catholics generally, Fr. Serra is “the Apostle of California,” “the first saint to be canonized on U.S. soil and by the first pope from the Americas.” ... For them, the attacks on Fr. Serra “call[] to mind very similar activities at earlier stages of American history. In the mid to late nineteenth century, anti-Catholicism was rampant in the United States, due in part to prejudices inherited from Protestantism but also due to the arrival of large groups of immigrants from Catholic countries, who were considered inferior.”... For them, “how can [they] not see the ugly specter of anti-Catholicism raising its head” again?

For all Catholics, the only reasonable way to view the attacks on Fr. Serra are as attacks on a psychological mascot, or a “convenient scapegoat and whipping boy,” for those who hate Catholics and who hate that they evangelized native peoples.

Life Site News reports on these developments.

Thursday, August 06, 2020

County Sues Church For Violation of COVID Orders

The county of Ventura, California filed suit in a state trial court yesterday seeking a temporary restraining order and an injunction against a church and its pastor for holding indoor worship services in violation of state and local COVID-19 orders. The complaint (full text) in County of Ventura v. Godspeak Calvary Chapel, (CA Super. Ct., file 8/5/2020), alleges in part:

The wrongful conduct of defendants ..., unless and until enjoined and restrained by the court, will cause and continue to cause great and irreparable injury to the general public ... by creating a significant risk of further community spread of COVID-19, including hospitalizations and deaths, which in turn is likely to result in continued and further restrictions on businesses and other operations and activities within Ventura County, detrimentally affecting the quality of life of the entire community.

Ventura County Star reports on the lawsuit.

Trump Campaign Circumvents Nevada Church Limits By Holding Evangelical Rally At Casino

As previously reported, last month the U.S. Supreme Court refused to grant an injunction pending appeal to a Nevada church challenging the differential treatment of churches and casinos under the Governor's COVID-19 orders. Now according to Microsoft News:

President Trump's campaign is holding an "Evangelicals for Trump" event on Thursday at a Las Vegas hotel and casino, amid a controversial ban in the state on gatherings of more than 50 people in houses of worship while places like casinos are subject to a less stringent 50 percent capacity limit.

The event is scheduled to take place at ... one of the many joint hotels and casinos in Las Vegas. It will feature Trump spiritual adviser Pastor Paula White ... and others. The full event title is "Evangelicals for Trump: Praise, Prayer and Patriotism."

"In a time when many Nevadans can’t go to church because of overreaching restrictions, President Trump’s campaign is bringing together evangelicals from across the community to pray, worship and discuss key issues facing Americans in the November election," Trump 2020 deputy national press secretary Ken Farnaso said in a statement.

Wednesday, August 05, 2020

Suit Says Chicago Schools Program Promoted Hindu Beliefs

Organizations comprised of parents, students and churches this week filed suit in an Illinois federal district court challenging on Establishment Clause and free exercise grounds the "Quiet Time" program that has been implemented in a number of Chicago public schools. the complaint (full text) in Separation of Hinduism From Our Schools v/ Chicago Public Schools, (ND IL, filed 8/3/2020), alleges in part:

3. Although all named Defendants have made statements to the contrary, the “Quiet Time” program is based in Hindu beliefs and the practice of “Transcendental Meditation” is fundamentally religious in nature.

4. Plaintiffs’ rights under the First Amendment were violated when Defendants created environments within public schools where Hindu beliefs and the practice of “Transcendental Meditation” were being endorsed and students were coerced to engage in religious practices against their wills.

Christian News reports on the lawsuit.

Tuesday, August 04, 2020

New York Child Victims Act Filing Window Is Extended

Yesterday New York Governor Andrew Cuomo signed into law S7082 (full text) which extends the window for Child Victims Act lawsuits until August 14, 2021. (Press release). Originally, the window was for a one-year period ending this month. CNA, reporting on the new legislation, says that the change in the law was motivated by concern that the Covid pandemic has deterred many victims from coming forward in time to meet the prior deadline.

Anti-Kapparot Group Renews Attempt To Get NYC Police Enforcement of Health Code

As previously reported, in 2018 New York's highest court refused a writ of mandamus to require enforcement of public health and animal cruelty laws against the Jewish pre-Yom Kippur religious practice of kaporos using live chickens. The court held that mandamus cannot be used to order discretionary enforcement action. Now a motion to renew the request for a mandamus petition has been filed, alleging that the COVID-19 pandemic has revealed new evidence relevant to the claim. In Alliance to End Chickens as Koporos v. New York City Police Department, (NY Ct. Sup. Ct.) a motion and affidavit (full text) filed 7/6/2020, focuses in large part on the animal-to-human spread of COVID-19, saying in part:

99. In light of the health, economic, and financial devastation caused [by] Covid-19, in light of how this pandemic [has] caused our lives to come to a grinding halt, in light of the hundreds of thousands of lives lost worldwide, and in light of the fact that Covid-19 originated from a live animal wet market, we cannot allow our police department to pick and choose what lows to enforce when it comes to the health code. Too much is at stake, which we all so painfully are currently aware of.

JTA reports on these developments. Attorney for plaintiffs issued a press release on the filing.

Monday, August 03, 2020

Attack On Connecticut COVID-19 Orders Rejected

In Murphy v. Lamont, (D CT, Aug. 3, 2020), a Connecticut federal district court rejected a wide-ranging constitutional attack, including 1st Amendment challenges, on the COVID-19 orders of Connecticut Governor Ned Lamont. The court found that plaintiffs lack standing, saying in part:

... Barnes asserts that he is “impeded from attending church.”... However, because no Executive Order prohibits religious worship, Barnes cannot show that the conduct he wishes to engage is “proscribed by statute.” ... Furthermore, Barnes alleges no facts as to his intention to attend religious services or any specific occurrence where he was prevented from doing so.

Murphy also asserts an injury to his religious liberty, along with his freedom of association. He alleges that, “[b]efore the illegal lock down orders, my family participated in a homeschooling group, in which we met in a church. We have not met since this lock down.”... Like Barnes’ allegations, these allegations are too vague to establish an injury-in-fact.

The court also found that plaintiffs were unlikely to succeed on the merits, saying in part:

Executive Order 7TT limits attendance of places of worship to 25% of building capacity or a maximum of 100 attendees, whichever is fewer.... In South Bay United Pentecostal Church, 140 S. Ct. at 1613, the Chief Justice, in his concurrence in the judgment denying a temporary injunction, found that those same restrictions (in California) did not violate the Free Exercise Clause. The court reaches the same conclusion here. The challenged Executive Orders are plainly neutral, and plaintiffs have not proffered any evidence to suggest that the Governor has any animus towards religious organizations. Indeed, more severe restrictions apply to secular gatherings.

Sunday, August 02, 2020

Limits On Street Preacher At Farmers Market Are Upheld

In Denton v. City of El Paso, 2020 U.S. Dist. LEXIS 135896 (WD TX, July 28, 2020), a Texas federal district court rejected free speech, free exercise and other challenges to a policy that prevents plaintiff, a street preacher, from proselytizing at the El Paso Art and Farmers Market. The city bars fundraising, political campaigning or religious proselytizing at the event. It also requires non-profits to distribute information only from designated booth space and bars organizations from approaching or shouting to those passing by.

The court said in part:

[C]onsidering the evidence in the record thus far, Plaintiff has not carried his burden to demonstrate a clear likelihood that the City's policy is content based. Instead, the evidence strongly suggests that the policy is content neutral.

...Because the City seeks to preserve the Market as a space for its visitors to converse with each other and local artisans and enjoy buskers' performances, it has a substantial interest in eliminating disruptive noise....

Moreover, the City also asserts a related economic interest in promoting vendors' ability to sell their wares without "having to shout over someone"...

Saturday, August 01, 2020

Satanic Temple Has Promissory Estoppel Claim After Its Permit To Erect Memorial Was Voided

In The Satanic Temple v. City of Belle Plaine, Minnesota, (D MN, July 31, 2020), a Minnesota federal district court dismissed free exercise, free speech and equal protection claims by the Satanic Temple which objected to the city's Resolution 17-090 which rescinded a prior resolution that created a limited public forum in Veterans Memorial Park. The earlier resolution allowed individuals and organizations to erect and maintain privately owned displays to honor local veterans and veterans' organizations. The Satanic Temple had received a permit to erect a display, and spent substantial amounts for its design and construction, before the rescission. It argues that the rescission came about because of the controversial nature of its display. The court said in part:

[A]lthough TST identifies the core tenants of its religion, TST fails to explain or allege facts that identify any central tenet of its religious beliefs that TST cannot exercise because of Resolution 17-090. Second, TST alleges no facts demonstrating that Resolution 17-090 prevents TST from expressing adherence to its faith. And third, TST fails to allege whether and how any activity that Resolution 17-090 prohibits is fundamental to TST’s religion.

The court however allowed Satanic Temple to move ahead with its promissory estoppel claim, saying in part:

TST sufficiently alleges that Belle Plaine should have reasonably expected that TST would expend time and resources to construct a display after receiving approval and that TST in fact expended such time and resources.

Finally, TST alleges sufficient facts that enforcement of Belle Plaine’s promise may be necessary to avoid injustice.

Friday, July 31, 2020

11th Circuit: Shame To Muslim Family From Assault Allegations Allows Woman To Proceed As Jane Doe

In Doe v. Neversome, (11 Cir., July 30, 2020), the U.S. 11th Circuit Court of Appeals held that that a Florida federal district court abused its discretion when it refused to allow a plaintiff in a sexual assault and battery action against a musical celebrity. The court said in part:

Here Ms. Doe ... asserts that because she is from a “devout Muslim family,” the “very nature of her allegations would be sufficient to bring harm to [herself] and shame to her family under the cultural/religious traditions that her family practices.”... The district court erred by treating Ms. Doe’s motion as merely alleging personal embarrassment, without accounting for what she actually alleged or considering our social stigma cases.

We also note that, under our precedent, the district court may have too easily discounted evidence that Ms. Doe would be subject to threats and harassment if she were required to proceed under her real name.

[Thanks to Eugene Volokh via Religionlaw for the lead.]

American On Trial For Blasphemy In Pakistan Is Assassinated In Courtroom

A press statement from the State Department yesterday reports on the killing of an American citizen, Tahir Naseem, inside a court room in Pakistan where he was on trial for blasphemy:

Mr. Naseem had been lured to Pakistan from his home in Illinois by individuals who then used Pakistan’s blasphemy laws to entrap him. The U.S. Government has been providing consular assistance to Mr. Naseem and his family since his detention in 2018 and has called the attention of senior Pakistani officials to his case to prevent the type of shameful tragedy that eventually occurred.

The State Department called for the reform of Pakistan's blasphemy laws. Radio Free Europe adds details:

It was not clear how the suspect, identified as Khalid Khan, managed to gain access to the courtroom.

He told police the prophet Muhammad had ordered him to kill Nasim because he had belonged to the Ahmadi faith....

According to BBC News:

Mr Naseem was first accused of blasphemy by Awais Malik, a madrassa student from Peshawar. Mr Naseem had struck up an online conversation with him whilst living in the United States.

Mr Malik told the BBC he had then met Mr Naseem in a shopping mall in Peshawar to discuss his views on religion, after which he filed a case against him with the police....

Mr Naseem was born into the persecuted Ahmadi sect, according to a spokesman for the community. But he added that he had left the sect and claimed to be a prophet himself.

The community leader suggested Mr Naseem had been mentally ill - he had uploaded videos to YouTube claiming to be a messiah.

Thursday, July 30, 2020

Canadian Court Says Catholic Archdiocese Is Vicariously Liable For Sexual Abuse At Orphanage

In John Doe v. Roman Catholic Episcopal Corporation of St. John's, (Newfoundland & Labrador Ct. App., July 28, 2020), the Court of Appeal in the Canadian province of Newfoundland, in a 136-page opinion, held that the Catholic Archdiocese is vicariously liable for sexual abuse suffered by the four plaintiffs. Five members of the Christian Brothers abused plaintiffs in the 1950's when they were living at the Mount Cashel Orphanage. The court said in part:

In our view, the total relationship between the Brothers at Mount Cashel and the Archdiocese shows that the Brothers were working on the account of the Archdiocese’s social and religious mandate. Their relationship was sufficiently close, and the connection between the Brothers’ assigned tasks and their wrongdoing was sufficiently close, to justify the imposition of vicarious liability on the Archdiocese. Doing so in the circumstances of this case upholds the policy objectives of the doctrine.

The court held however that the Archdiocese is not liable for a chaplain's failure to act after he learned of the abuse, saying in part:

As Monsignor Ryan was not negligent and did not breach a fiduciary duty, there is no basis upon which the Archdiocese could be liable for his conduct.

Canadian Press reports on the decision.

Ministerial Exception Doctrine Leads To Dismissal of Music Director's Discrimination Suit

In Menard v. Archdiocese of Boston, (MA App., July 29. 2020), a Massachusetts state appellate court held that the ministerial exception doctrine requires dismissal of a sex and age discrimination suit against the the Archdiocese. In the suit, a church's director of music ministries claimed that the church's pastor subjected her to harassment and that she was retaliated against when she notified the Archdiocese. The court said in part:

In this case, Menard's job duties place her squarely within the ministerial exception. As implied by her title, director of music ministries, Menard's role was a substantive one. She selected and played music at all parish events, taught and conducted multiple choirs, trained the church's cantors, and organized the cantors' schedule for Mass. Far more than the rote playing of an instrument, ... Menard's job required her to thoughtfully select the music for each event and train others to perform it.

Wednesday, July 29, 2020

Suit Challenges North Carolina Opportunity Scholarship Program

Suit was filed in a North Carolina state trial court this week challenging North Carolina's Opportunity Scholarship Program. The complaint (full text) in Kelly v. State of North Carolina, (NC Super. Ct., filed 7/27/2020), alleges that as implemented the Program violates various provisions of the North Carolina state Constitution. The complaint says in part:

2. The Program sends millions of taxpayer dollars to private schools without imposing any meaningful educational requirements. As implemented, many of the Program’s funds are directed to schools that divide communities on religious lines, disparage many North Carolinians’ faiths and identities, and coerce families into living under religious dictates.

3. The Program as implemented funds discrimination on the basis of religion. Families’ ability to participate in the Program is limited by their religious beliefs and their willingness to cede control of their faith to a religious school.

4. The Program as implemented funds schools that discriminate against students and parents based on who they love or the gender they know themselves to be, and against those with religious beliefs that do not condemn homosexuality, bisexuality, or gender non-conformity.

NCAE issued a press release announcing the filing of the lawsuit. AP reports on the lawsuit.

Tuesday, July 28, 2020

Hajj Begins Tomorrow-- Scaled Down In Response To Pandemic

The Hajj begins tomorrow in Saudi Arabia, in a scaled down fashion because of the COVID-19 pandemic. AP and Andoula Agency both report on the event which will be limited to between 1,000 and 10,000 participants who are already living in Saudi Arabia. Normally the Hajj attracts 2.5 million pilgrims. According to AP:

This year, pilgrims must wear face masks and will only be able to drink holy water from the Zamzam well in Mecca that has been pre-packaged in plastic bottles. Pebbles for casting away evil that are usually picked up by pilgrims along hajj routes will be sterilized and bagged before being distributed to pilgrims.

Pilgrims are also bringing their own prayer rugs and will be required to pray at a distance from one another, rather than packed shoulder to shoulder.

Monday, July 27, 2020

Saturday, July 25, 2020

Supreme Court, 5-4, Refuses To Enjoin Pending Appeal Nevada Limits On Worship Services

By a 5-4 vote, the U.S. Supreme Court on Friday refused to grant an injunction pending appeal to a church that is challenging Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. A Nevada federal district court upheld the Nevada Order. ( See prior posting). The 9th Circuit denied an emergency motion for injunctive relief pending appeal. In Calvary Chapel Dayton Valley v. Sisolak, (US Supreme Court, July 24, 2020), while the majority did not file an opinion explaining their vote, the four dissenting Justices did. Justice Alito filed a dissenting opinion, joined by Justices Thomas and Kavanaugh, finding free speech and free exercise violations, saying in part:

The Constitution guarantees the free exercise of religion. It says nothing about the freedom to play craps or blackjack, to feed tokens into a slot machine, or to engage in any other game of chance. But the Governor of Nevada apparently has different priorities. Claiming virtually unbounded power to restrict constitutional rights during the COVID–19 pandemic, he has issued a directive that severely limits attendance at religious services. A church, synagogue, or mosque, regardless of its size, may not admit more than 50 persons, but casinos and certain other favored facilities may admit 50% of their maximum occupancy—and in the case of gigantic Las Vegas casinos, this means that thousands of patrons are allowed.

That Nevada would discriminate in favor of the powerful gaming industry and its employees may not come as a surprise, but this Court’s willingness to allow such discrimination is disappointing.

Justice Gorsuch filed a brief dissent, saying in part:

The world we inhabit today, with a pandemic upon us, poses unusual challenges. But there is no world in which the Constitution permits Nevada to favor Caesars Palace over Calvary Chapel.

Justice Kavanaugh also filed a separate dissent, laying out a broad framework for approaching religion cases. He says in part:

The definitional battles over what constitutes favoritism, discrimination, equality, or neutrality can influence, if not decide, the outcomes of religion cases. But the parties to religion cases and the judges deciding those cases often do not share a common vocabulary or common background principles. And that disconnect can muddy the analysis, build resentment, and lead to litigants and judges talking past one another.

In my view, some of the confusion and disagreement can be averted by first identifying and distinguishing four categories of laws: (1) laws that expressly discriminate against religious organizations; (2) laws that expressly favor religious organizations; (3) laws that do not classify on the basis of religion but apply to secular and religious organizations alike; and (4) laws that expressly treat religious organizations equally to some secular organizations but better or worse than other secular organizations. As I will explain, this case involving Nevada’s reopening plan falls into the fourth category.

Friday, July 24, 2020

New Suit Charges Former Cardinal McCarrick With Sexual Abuse and Dioceses With Negligence

Suit was filed in a New Jersey state court this week against two New Jersey Catholic Dioceses, other Catholic entities, and former Catholic Cardinal Theodore McCarrick . The complaint (full text) in JA/GG Doe 14 v. Diocese of Metuchen, (NJ Super, filed 7/21/2020), charges McCarrick with sexual battery and the Dioceses and schools with negligent training, supervision and retention. A news conference by the lawyers who filed the lawsuit described the suit as:

... [A] new lawsuit filed under the New Jersey Child Sexual Abuse Act (part of the New Jersey Victims’ Rights Bill), by a survivor who was sexually abused by infamous serial sexual predator and former Cardinal Theodore E. McCarrick as part of McCarrick’s sordid beach house child sex ring;

... Plaintiff, then a teenager, was groomed, manipulated and coerced by McCarrick into participating in McCarrick’s sex ring along with other kids;

... McCarrick orchestrated and directed the sexual abuse of the Plaintiff by three other priests named in the complaint.

Washington Post reports on the lawsuit.

Wedding Services Company Challenges Public Accommodation Non-Discrimination Ordinance

A Christian minister, Kristi Stokes, the owner of Covenant Weddings LLC, filed suit in an Ohio federal district court this week challenging the constitutionality of Cuyahoga County, Ohio's public accommodation ordinance (full text) which which makes it illegal for any public accommodation to

discriminate against, or treat differently any person except for reasons applicable alike to all persons regardless of race, color, religion, military status, national origin, disability, age, ancestry, sex, sexual orientation, or gender identity or expression...

The complaint (full text) in Covenant Weddings LLC v. Cuyahoga County, (ND OH, filed 7/22/2020) alleges in part:

The County ... cannot rescind religious liberty and free speech by relabelling them discrimination....

Through Covenant Weddings, Kristi personally officiates and writes custom homilies, vows, and prayers for weddings...

The Accommodations Clause forces Kristi to provide her wedding services for same-sex wedding ceremonies or for wedding ceremonies where a marrying individual identifies as the opposite sex and would require Kristi to proclaim messages and to participate in religious ceremonies that violate her religious beliefs, which she cannot do....

This undercuts Kristi’s message (expressed elsewhere in her social media accounts and wedding services) celebrating marriage between one man and one woman; harms Kristi’s reputation among her past and prospective clients; undermines her editorial control over what services she offers to the public; and adversely affects Kristi’s ability to share biblical truths about marriage with others....

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

Thursday, July 23, 2020

Suit Challenges South Carolina Grants To Private School Students

As reported by The Island Packet, a South Carolina state court judge in Adams v. State of South Carolina, (SC Com.Pl., July 21, 2020) has issued a temporary restraining order (full text) prohibiting the distribution of Safe Access to Flexible Education (SAFE) Grants until a July 29 hearing in the case. The grants are in the form of one-time tuition vouchers for low-income families sending their children to private schools (including religious schools). They are funded through the federal CARES Act. In a complaint (full text) filed July 21, a taxpayer contends that the grants violate the ban in the South Carolina constitution on the expenditure of public funds for the direct benefit of any religious or other private educational institution. The complaint alleges that the grants will give private school students some 13 times as much as the amount received per public school student under the CARES Act.

Wednesday, July 22, 2020

Texas AG Says Cities Cannot Restrict Reopening of Religious Private Schools

A July 17 press release from Texas Attorney General Ken Paxton reads in part:

Attorney General Ken Paxton today issued a guidance letter to religious private schools in Texas, informing them that local public health orders attempting to restrict their reopenings violate the United States and Texas Constitutions and the Texas Religious Freedom Restoration Act. Moreover, local orders seeking to restrict the reopening of religious private schools or institutions is inconsistent with Governor Abbott’s executive orders, and therefore, are invalid.

Here is the full text of the letter, which concludes:

Thus, as protected by the First Amendment and Texas law, religious private schools may continue to determine when it is safe for their communities to resume in-person instruction free from any government mandate or interference. Religious private schools therefore need not comply with local public health orders to the contrary.

Problem Meeting Parking Requirements Can Be RLUIPA "Substantial Burden"

In Immanuel Baptist Church v. City of Chicago, (ED IL, July 20, 2020), an Illinois federal district court held that plaintiff Church adequately pleaded that the city's parking regulations imposed a "substantial burden" under RLUIPA on its religious exercise. The court said in part:

Church was burdened by substantial expense, time and resources trying to comply with the City’s parking requirements. Under the original deal it had with the owner of the Property, the Church intended to purchase two buildings. Because of the City’s determination that the Church did not comply with its parking requirements, the Church was not able to close on the deal in 2016. Then when it was able to close on the deal two years later, the Church was only able to purchase one building. And during that delay, the Church spent money paying rent and used significant resources trying to negotiate with the City and identify potential parking solutions. Although the City finally exempted the Church from the parking requirement in 2019, that did not change the fact that the Church had spent significant time, money, and resources over those years, and lost the opportunity for ownership of one of the buildings. All of this was particularly difficult for the Church which has great needs and very limited resources....

EEOC Sues Airline Over Requiring Pilot To Attend Religious AA Program

The EEOC this week filed a lawsuit against United Airlines charging that it did not adequately accommodate the religious beliefs of a Buddhist pilot. In its press release, the EEOC said in part:

United operates a program for its pilots with substance abuse problems that provides them treatment and sponsors them to obtain new medical certificates from the FAA. One of the requirements of United’s program is that pilots regularly attend Alcoholics Anonymous (“AA”). The pilot, who is Buddhist, objected to the religious content of AA and sought to substitute regular attendance at a Buddhism-based peer support group. United refused to accommodate his religious objection and, as a result, the pilot was unable to obtain a new FAA medical certificate permitting him to fly again, the agency charged....

“Employers have the affirmative obligation to modify their policies to accommodate employees’ religious beliefs,” said EEOC New York Regional Attorney Jeffrey Burstein. “Despite this obligation, United was inflexible and refused to make a modest change its program that would have caused them no hardship.”

Paddle Your Own Kanoo reports on the suit.

2nd Circuit: Free Speech and Free Exercise Claims of Christian Adoption Agency Can Move Forward

In New Hope Family Services, Inc. v. Poole, (2d Cir., July 21, 2020), the U.S. 2nd Circuit Court of Appeals, in an 84-page opinion, reversed the dismissal of free exercise and free speech claims brought by a Christian adoption agency. The court summarized the issues:

New Hope Family Services, Inc., is a voluntary, privately funded Christian ministry devoted to providing adoption services and authorized to do so in the State of New York for more than 50 years. New Hope professes that, consistent with its religious beliefs, it cannot recommend adoptions by unmarried or same-sex couples. It does not itself disapprove such couples; rather, it refers them to other adoption agencies. In 2018, the State’s Office of Children and Family Services (“OCFS”) informed New Hope that its policy respecting unmarried and same-sex couples violates the antidiscrimination mandate of N.Y. Comp. Codes R. & Regs. tit. 18, § 421.3(d). OCFS advised New Hope that it either had to change its policy or close its operation.

In reversing and remanding the case to the district court, the 2nd Circuit said in part as to plaintiff's free exercise claim:

[W]e conclude that the pleadings give rise to a sufficient “suspicion” of religious animosity to warrant “pause” for discovery before dismissing New Hope’s claim as implausible.

In connection with plaintiff's free speech claim, the court said:

New Hope asserts that, based on its religious beliefs about marriage and family, it does not believe and, therefore, cannot state, that adoption by unmarried or same-sex couples would ever be in the best interests of a child. It charges OCFS with requiring it to say just that—or to close down its voluntary, privately funded adoption ministry....

AP reports on the decision.

Tuesday, July 21, 2020

23 States Sue HHS Over Rollback of Anti-Discrimination Protections In Health Care

Attorneys general representing 22 states and the District of Columbia filed suit yesterday challenging the Trump Administration's recently-adopted rules under the Affordable Care Act and under Title IX which roll back anti-discrimination provisions protecting, among others, transgender individuals and those who have accessed abortion services. The complaint (full text) in State of New York v. U.S. Department of Health and Human Services, (SD NY, filed 7/20/2020), contends that the new rules deny equal protection of the laws and that their adoption was in violation of various provisions of the Administrative Procedure Act. Courthouse News Service reports on the lawsuit. New York's Attorney General issued a press release announcing the filing of the lawsuit.

9th Circuit: En Banc Review Denied In Suit Over FBI Surveillance of Muslims

In February 2019, a 3-judge panel of the 9th Circuit in Fazaga v. Federal Bureau of Investigation held that three Muslim plaintiffs may move ahead with many of their claims growing out of an FBI investigation that they allege involved unlawful searches and anti-Muslim discrimination. (See prior posting.) Now in Fazaga v. Federal Bureau of Investigation, (9th Cir., July 20, 2020), the panel filed an amended opinion and the court denied en banc review. Five judges joined an opinion concurring in the denial of en banc review. Ten judges joined all or most of an opinion dissenting from the denial of en banc review. At issue was the relationship between FISA and the state secrets privilege.

Various Challenges To Terrorism Watch List Practices Can Move Ahead

In El Ali v. Barr, (D MD, July 20, 2020), a Maryland federal district court allowed some of the plaintiffs to move ahead with challenges to practices involving inclusion on terrorism watch lists. The court explained:

Plaintiffs are 39 individuals—37 U.S. citizens and two legal residents—who claim that inclusion in the Government’s Terrorism Screening Database (“TSDB”) and various related Watchlists impair or prohibit air and land travel in the United States. Plaintiffs allege that their list status, or status by association with those on a list, subjects them to constitutionally impermissible detentions, searches, and screening at airports and land border entries, or in some cases, denial of air travel altogether. Relatedly, Plaintiffs allege that their list status has burdened their families and businesses, and inflicted other wide-ranging harms.

Among the claims that can move ahead are claims of intentional religious and racial discrimination, as well as Religious Freedom Restoration Act complaints that individuals were interrogated about their Muslim religious practices, and that interrogations and detentions interfered with the ability to perform Umrah and Hajj. The court dismissed the claim that offers to clear up plaintiffs' problems if they would act as FBI informants imposed a substantial burden on their religious exercise. CAIR issued a press release announcing the decision.

State Department Releases Draft Report Of Commission on Inalienable Rights

On July 16, the U.S. State Department released the 60-page Draft Report of the Commission on Inalienable Rights. The Report was released in Philadelphia by Commission Chair Mary Ann Glendon and Secretary of State Mike Pompeo. (Full text and video of their remarks.) The wide-ranging report emphasizes the religious traditions of the country's founders as well as the primacy of religious liberty. Here are a few excerpts:

Foremost among the unalienable rights that government is established to secure, from the founders’ point of view, are property rights and religious liberty. A political society that destroys the possibility of either loses its legitimacy....

Some mistakenly suppose that so generous a conception of liberty must rest on skepticism about salvation and justice. Why give people freedom to choose if God’s will and the imperatives of justice are knowable? In fact, a certain skepticism is involved, but it is directed not at faith and justice but at the capacity of government officials to rule authoritatively on the deepest and greatest questions. The Madisonian view of religious liberty ... proceeds from a theistic premise about the sources of human dignity even as it denies the state the power to dictate final answers about ultimate matters....

[E]ven a quick, preliminary reading of the Universal Declaration of Human Rights reveals many parallels to the fundamental constitutional and political principles of the United States....

The Universal Declaration’s weaving of civil and political rights together with economic, social, and cultural rights into an integrated whole poses a certain challenge for the United States. Unlike the Universal Declaration and unlike the majority of constitutions of the world that have been adopted since the early- to mid- 20th century, the U.S. Constitution does not generally recognize, let alone entrench, economic and social rights. Throughout the Cold War, the United States emphasized its commitment to civil and political rights almost exclusively, while rejecting the notion, championed by the Soviet Union, of the preeminence of economic and social rights. Since the end of the Cold War, a consistent aspect of U.S. human rights policy, across every presidential administration regardless of political party, has been U.S. reluctance to recognize economic and social rights as an integral part of the canon of international human rights....

The Draft Report is open for public comment until July 30. Reaction to the Draft Report by some has been very negative.

TRO Denied In Church's Suit Over California COVID Limits on Worship

On Friday, a California federal district court refused, on procedural grounds, to issue a temporary restraining order to a California church that filed suit challenging Governor Newsom's COVID-19 orders restricting worship services. In Harvest Rock Church, Inc. v. Newsom, (CD CA, July 20, 2020), the court in a two-page opinion said in part:

Harvest Rock seeks this injunctive relief without providing notice to Governor Newsom of either the Complaint or the TRO, yet fails to satisfy the requirements to obtain such an injunction without notice.

Pasedena Now reports on the decision.

Monday, July 20, 2020

Recent Articles of Interest

From SSRN:

Carl H. Esbeck, The Establishment Clause: What the Text and Record in the First Federal Congress Can Tell Us About Original Meaning, (University of Missouri School of Law Legal Studies Research Paper No. 2020-19 (2020)).
Beatrice Jessie Hill, Reconsidering Hostile Takeover of Religious Organizations, (Washington University Law Review (forthcoming 2020)).
Ian Huyett, How to Overturn Employment Division v. Smith: A Historical Approach, (Regent University Law Review, Vol. 32, 2020).
Andrew M. Koppelman, Gay Rights, Religious Liberty, and the Misleading Racism Analogy, (BYU Law Review, forthcoming).
Helen L. Norton, Discrimination, The Speech That Enables It, And The First Amendment, (University of Chicago Legal Forum, Forthcoming).
Dyllan Taxman, What About Bob? The Continuing Problem of Federally-Subsidized LGB Discrimination in Higher Education, (Wisconsin Women's Law Journal, Vol. 33, No. 1, 2019).
Putnam Barber, Megan Farwell & Brian D. Galle, Does Mandatory Disclosure Matter? The Case of Nonprofit Fundraising (June 12, 2020).

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

Eric Pichet, The Political and Economic Consequences of the BALDASSI Judgment of the European Court of Human Rights of 11 June 2020. (June 15, 2020).
M. Mohsin Alam Bhat, Vidisha Bajaj & Sanjana Arvind Kumar, The Crime Vanishes: Mob Lynching, Hate Crime and Police Discretion in India, 11(1) Jindal Global Law Review (2020).
Ihsan Yilmaz, The Rise of Islamist Fatwas in Erdogan’s Turkey, (October 1, 2019).
Qurratul Minhas, Analysis of Circumspections of COVID19 in the Light of Islam, (July 8, 2020).
Rosemary Teele Langford, Conflicts and Coherence in the Charities Sphere: Would a Conflict By Any Other Name Proscribe the Same?, ((2020) 14 Journal of Equity).

From SmartCILP:

Yifat Monnickendam, The Exposed Child: Transplanting Roman Law into Late Antique Jewish and Christian Legal Discourse, 59 American Journal of Legal History 1-30 (2019).
Britt P. Tevis, "The People's Judge": Jacob Panken, Yiddish Socialism, and American Law, [Abstract], 59 American Journal of Legal History 31-70 (2019).
Natalia Brigagao Ferrer Alves Carvalho, Catholic Social Thought, Politics and Human Dignity in the Brazilian Constitutional Assembly of 1987-1988, [Abstract], 59 American Journal of Legal History 111-140 (2019).
Stephanie H. Barclay, Brady Earley & Annika Boone, Original Meaning and the Establishment Clause: A Corpus Linguistics Analysis, 61 Arizona Law Review 505-560 (2019).
Brigham Young University Law Review, Volume 2019, No.1 : “To the Person”: RFRA’s Blueprint for a Sustainable Exemption Regime, Tanner Bean; Mormon Profit: Brigham Young, Tithing, and the Bureau of Internal Revenue, Samuel D. Brunson; Immigration Law’s Looming RFRA Problem Can Be Solved by RFRA, Stephanie Acosta Inks; The Broader Implications of Masterpiece Cakeshop, Douglas Laycock; Native American Religious Freedom as a Collective Right, Michael D. McNally; Religion in Judicial Decision-Making: An Empirical Analysis, René Reyes, Jessica W. Reyes; The Case of the Exemption Claimants: Religion, Conscience, and Identity, Steven D. Smith.
Mary Anne Case, Institutional Responses to #MeToo Claims: #VaticanToo, #KavanaughToo, and the Stumbling Block of Scandal, 2019 University of Chicago Legal Forum 1-36 (2019).

Sunday, July 19, 2020

California COVID-19 Limits On Worship Services Challenged

Suit was filed last week in a California federal district court challenging Gov. Gavin Newsom's various COVID-19 restrictions on indoor worship services. The complaint (full text) in Harvest Rock Church, Inc. v. Newsom, (CD CA, filed 7/17/2020), points to the total prohibition on indoor worship services in 30 counties, numerical and capacity limits on worship services in other counties, a ban on singing or chanting during indoor worship services, a ban on small-group Bible studies in private homes, and discriminatory limits on the kinds of activities that can be carried on in church buildings. The complaint alleges violations of free exercise, freedom of assembly and free speech rights, as well as of the Establishment Clause, Equal Protection, and Guarantee Clause. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Transgender Man Sues Catholic Hospital For Refusing Hysterectomy

A suit filed in a Maryland federal district court last week raises the question of whether a corporation created by the Maryland legislature to operate the University of Maryland Medical Center is a state actor for purposes of the 1st and 14th Amendments. The corporation acquired St. Joseph Hospital in 2012 and continued to operate it under Catholic Directives for healthcare. This resulted in the hospital refusing to allow a scheduled hysterectomy on a transgender man undergoing treatment for gender dysphoria. The complaint (full text) in Hammons v. University of Maryland Medical System Corporation, (D MD, filed 7/16/2020). alleges in part:

Defendants are instrumentalities of the State of Maryland and subject to the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. But, in violation of those constitutional obligations, Defendants operate University of Maryland St. Joseph Medical Center as a Catholic institution, guided by “Catholic health care values” and bound by the “Ethical and Religious Directives for Catholic Health Care Services” established by the U.S. Conference of Catholic Bishops (the “Catholic Directives”)....

By purchasing the St. Joseph hospital and signing an agreement to operate the hospital as a Catholic institution and in accordance with the Catholic Directives, UMMS has violated the Establishment Clause by, among other things, (a) creating an impermissible fusion of governmental and religious functions; (b) impermissibly delegating government authority to be exercised in accordance with religious criteria; (c) impermissibly endorsing religion; (d) taking government action that has the primary purpose and effect of advancing religion; (e) creating unconstitutional governmental entanglement with religion; (e) favoring one set of religious beliefs over others; and (f) impermissibly coercing individuals to act in accordance with particular religious beliefs.

ACLU issued a press release announcing the filing of the lawsuit. Washington Post reports on the lawsuit. [Thanks to Scott Mange for the lead.]

Saturday, July 18, 2020

5th Circuit Says Fired Employee's Suit Does Not Necessarily Require Deciding Ecclesiastical Questions

In McRaney v. North American Mission Board of the Southern Baptist Convention, Inc., (5th Cir., July 16, 2020), the U.S. 5th Circuit Court of Appeals reversed the dismissal of a suit by the former executive director of the General Mission Board of the Baptist Convention for Maryland/Delaware ("BCMD"). He alleged that the North American Mission Board ("NAMB") intentionally made false statements about him that led to his termination. He also claimed that NAMB posted his picture at their headquarters to tell people that he was not to be trusted. The district court relied on the ecclesiastical abstention doctrine to dismiss the case. The 5th Circuit, reversing, said in part:

In order to resolve McRaney’s claims, the court will need to determine (1) whether NAMB intentionally and maliciously damaged McRaney’s business relationships by falsely claiming that he refused to meet with Ezell,... (2) whether NAMB’s statements about McRaney were false, defamatory, and at least negligently made ...; and (3) whether NAMB intentionally caused McRaney to suffer foreseeable and severe emotional distress by displaying his picture at its headquarters.... At this early stage of the litigation, it is not clear that any of these determinations will require the court to address purely ecclesiastical questions.

Friday, July 17, 2020

Vatican Issues New Guide To Clergy On Handling Sex Abuse Cases

The Vatican, through the Congregation for the Doctrine of the Faith, yesterday issued a detailed guide for clerics on handling clergy sex abuse cases. Titled Vademcum: On Certain Points of Procedure In Treating Cases of Sexual Abuse of Minors Committed By Clerics (full text). The guide provides in part:

17. Even in cases where there is no explicit legal obligation to do so, the ecclesiastical authorities should make a report to the competent civil authorities if this is considered necessary to protect the person involved or other minors from the danger of further criminal acts.

The Vatican also issued a press release summarizing the Vademcum. The New York Times, reporting on these developments, said in part:

[T]he new instructions are not binding and were not enshrined in the church’s canon law, prompting criticism that the Vatican still gives bishops too much leeway in judging the conduct of their priests.

Sudan Liberalizes Its Laws On Apostasy, Alcohol, Criminal Sanctions and Women's Rights

Al Jazeera reported earlier this week on important legal reforms being implemented in Sudan:

Sudan approved wide-ranging amendments to its criminal law including repealing the death penalty for apostasy as well as no longer requiring women to need a permit from male family members to travel with their children....

Public flogging will also be ended and the consumption of alcohol by non-Muslims will now be permitted. ...

The new laws will also ban female genital mutilation (FGM)....

California's COVID-19 Ban On Worship Singing and Chanting Is Challenged

On Wednesday, a suit was filed in a California federal district court challenging California Governor Gavin Newsom's COVID-19 Order relating to restrictions on reopened church services. The state's Guidance document requires that places of worship discontinue singing and chanting. No similar requirement is placed on other reopened activities. The complaint (full text) in Calvary Chapel of Ukiah v. Newsom, (ED CA, filed 7/15/2020), alleges that the selective ban violates plaintiffs' 1st and 14th Amendment rights. It says in part:

The Worship Ban, on its face and as applied, impermissibly burdens Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs or the mandates in Defendants’ Worship Ban.

The Hill reports on the lawsuit.

Thursday, July 16, 2020

British Court Says Foster Care Agency Can Serve Only Christians, But Cannot Exclude Gay Couples

In Cornerstone (North East) Adoption and Fostering Service Ltd. v. Office for Standards in Education, Children's Services and Skills, (England & Wales High Ct., July 7, 2020), a British judge ruled that a Christian adoption and foster care agency does not violate the Equality Act or the European Convention on Human Rights by recruiting only Evangelical Christians to be foster carers. However it does violate both the Equality Act and the Convention when it refuses to place children with Evangelical Christian same-sex couples. Christian News reports on the decision.

Wednesday, July 15, 2020

9th Circuit Hears Arguments In Hindu Challenge To California Curriculum Standards

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in California Parents for the Equalization of Educational Materials v. Torlakson. In the case, a California federal district court dismissed the claim that California public schools' History-Social Science Content Standards adopted in 1998 and its History-Social Science Framework adopted in 2016 violate the Establishment Clause by demonstrating hostility toward Hinduism. (See prior posting.) Courthouse News Service reports on yesterday's oral arguments.

Poway Rabbi Pleads Guilty To Fraud Charges

Under a Plea Agreement (full text) in United States v. Goldstein, (SD CA, 7/14/2020), a California rabbi plead guilty to one count of conspiracy to defraud the United States and commit wire fraud. As set out in the Information (full text) filed at the same time as the plea agreement, Rabbi Yisroel Goldstein was charged with a scheme to help at least five other taxpayers evade income taxes and fraudulently received other benefits. Goldstein would generate receipts for charitable donations, but funnel 90% of the contributions back to donors. Taxpayers would also use the receipts to generate matching contributions from their employers. He would also assist other in obtaining fraudulent grants or loans, and falsely generate community service records for individuals sentenced to community service.

Rabbi Goldstein obtained public notice in 2019 when an attack on his synagogue in Poway resulted in one death and injuries to others including Goldstein. Courthouse News Service reports on the case:

U.S. Attorney Robert Brewer said during a press conference Tuesday Goldstein had personally made off with $620,000 in kickback payments for helping five Chabad of Poway donors evade paying personal income taxes....

“There is no doubt Rabbi Yisroel Goldstein was the victim of a horrific hate crime which terrorized him and the Chabad community. That event was a significant mitigating factor in the final plea agreement,” Brewer said....

Brewer said when Goldstein is sentenced later this year, the U.S. Attorney’s Office will recommend probation. He cited Goldstein’s past and ongoing cooperation, community contributions and “exemplary” example as “a significant advocate for peace and the elimination of violence and religious hatred” following the 2019 shooting.

Goldstein will pay $2.5 million in restitution as part of the plea agreement, Brewer said.

Clergy Cannot Get Inmates' Executions Delayed Because of COVID Fears

In Hartkemeyer v. Barr, (SD IN, July 14, 2020), an Indiana federal district court refused to delay the execution of prisoners in two separate cases where the prisoners' ministers of record argued that scheduling the execution during the COVID-19 epidemic violates the clergy's rights under RFRA. Each of the clergymen had a sincerely held religious belief that they needed to attend to the spiritual needs of the prisoner facing execution. The court rejected the argument, saying n part:

The mere scheduling of an execution imposes no obligation or restriction on the religious advisor whom the condemned prisoner has selected to attend.

CNA reports on the decision.

Tuesday, July 14, 2020

Court Rejects Church's Claim That Its Free Exercise Rights Include Cockfighting

In Plumbar v. Perrilloux, (MD LA, July 13, 2020), a Louisiana federal district court refused to issue a preliminary injunction against enforcement of Louisiana's statute that bans cockfighting. Members of Holy Fight Ministries claim that cockfighting is an integral and essential part of their religious faith. In denying the injunction, the court said in part:

Defendants have provided satisfactory evidence to show that the state has a compelling interest in enacting a law banning cockfighting and because the evidence casts doubt upon the type of institution operated by Plaintiffs. In other words, the evidence suggests that the cockfighting activities were more commercial in nature than a bona fide religious ritual.

Court Upholds New Mexico's COVID-19 Limits On Church Services In Lengthy Opinion

In a 268-page opinion in Legacy Church, Inc. v. Kunkel, (D NM, July 13, 2020), Legacy Church lost its challenges under the Free Exercise Clause and the Freedom of Assembly Clause to New Mexico Department of Health Kathyleen Kunkel’s Public Health Emergency Orders imposing various restrictions on gatherings for religious services. Summarizing its holdings, the court concluded that the Public Health Orders "are neutral with respect to religion and generally applicable;" and they "are unrelated to the suppression of speech or religion, serve a compelling state, interest, and less restrictive alternatives are not available."

Abortion Rights Proponents Win In 4 Cases

A series of abortion rights rulings were handed down in the last few days:

In Sistersong Women of Color Reproductive Justice Collective v. Kemp, (ND GA, July 13, 2020), a Georgia federal district court permanently enjoined enforcement of Georgia's Living Infants Fairness and Equality (“LIFE”) Act which prohibits abortions after detection of a fetal heartbeat and recognizes unborn children as "natural persons." Courthouse News Service reports on the decision.

In Memphis Center for Reproductive Health v. Slatery, (MD TN, July 13, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of two bans on pre-viability abortions. One bans abortions when a fetal heartbeat is detectable. The other bans pre-viability abortions sought because of the race or sex of the fetus, or because of a Down syndrome diagnosis. ACLU issued a press release announcing the decision.

In American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (D MD, July 13, 2020), a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of in-person requirements that barred women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. The court concluded:

in light of the COVID-19 pandemic, the In-Person Requirements cause an undue burden in violation of the Constitution, imposing a substantial obstacle on a large fraction of the relevant women seeking a medication abortion.

AP reports on the decision.

In Planned Parenthood of Maryland, Inc. v. Azar, (D MD, July 10, 2020), a Maryland federal district court enjoined implementation of HHS' "separate billing rule" which would have complicated the billing for abortion coverage in health insurance policies offered through state exchanges. As explained by the court:

HHS proposed that issuers would need to send two separate bills to the policyholder to comply with § 1303 (one bill for the portion of the premium attributable to non-Hyde abortion coverage and one for the rest of the premium), and instruct the policyholder to pay the premium attributable to non-Hyde abortion coverage in a separate transaction.

Health Affairs reports on the decision.

Monday, July 13, 2020

Sunday, July 12, 2020

4th Circuit: Rastafarian Inmate Can Move Ahead With His Suit Over Solitary Confinement

Smith v. Collins, (4th Cir., July 10, 2020), is a suit by a Rastafarian inmate who spent over four years in solitary confinement for refusal to cut his hair. The inmate, Elbert Smith, says that his religion does not permit him to do so. The court, vacating the district court's dismissal of the lawsuit, said in part:

we hold that there is at least a genuine dispute of material fact as to whether Smith’s conditions of confinement imposed a significant and atypical hardship in relation to the ordinary incidents of prison life. Therefore, we vacate the district court’s summary judgment order and remand the case for further proceedings consistent with this opinion. Specifically, on remand, the district court should consider in the first instance, and after further discovery, whether the process that Smith received was constitutionally adequate and whether the Defendant-Appellees are nevertheless entitled to qualified immunity.

Saturday, July 11, 2020

Turkey's President Converts Hagia Sophia Museum Back Into A Mosque

AP reports on the controversial move by Turkey's President to change the status of a UNESCO World Heritage site:

The president of Turkey on Friday formally reconverted Istanbul’s sixth-century Hagia Sophia into a mosque and declared it open for Muslim worship....

The decision sparked deep dismay among Orthodox Christians. Originally a cathedral, Hagia Sophia was turned into a mosque after Istanbul's conquest by the Ottoman Empire but had been a museum for the last 86 years, drawing millions of tourists annually.....

Turkey's high administrative court threw its weight behind a petition brought by a religious group and annulled the 1934 Cabinet decision that turned the site into a museum. Within hours, President Recep Tayyip Erdogan signed a decree handing over Hagia Sophia to Turkey's Religious Affairs Presidency.

Friday, July 10, 2020

Certiorari Granted In College Student Religious Speech Case

Yesterday the U.S. Supreme Court granted review in Uzuegbunam v. Preczwski, (Docket No. 19-968, certiorari granted 7/9/2020). (Order List). The case grows out of a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. Subsequently, the school changed its policies. The U.S. 11th Circuit Court of Appeals held that the change mooted plaintiff's claim for nominal damages. (Full text of 11th Circuit opinion.) Appellants challenge that conclusion. ADF issued a press release on the grant of review.

RLUIPA Protects Religious Transition Home

In City Walk - Urban Mission Inc. v. Wakulla County Florida, (ND FL, July 9, 2020), a Florida federal district court granted a preliminary injunction requiring county officials to allow a church to operate a religious transition home for 3 to 6 unrelated adults. Neighbors had begun to complain when they learned that the home included registered sex offenders. The court said in part:

Defendant amended its Land Use Development Code, limiting Plaintiff to housing only two unrelated adults in the three-bedroom home at a given time.... The Religious Land Use and Institutionalized Persons Act ... provides broader protection for religious exercise than is available under the First Amendment. RLUIPA prohibits, among other things, a government from imposing a substantial burden on an entity’s or person’s religious exercise unless the government demonstrates that the imposition of the burden is in furtherance of a compelling interest and is the least restrictive means of furthering that compelling interest.

This Court finds Defendant’s two-adult limitation amounts to a substantial burden on Plaintiff’s religious exercise and that Defendant has failed to show that the burden imposed is the least restrictive means of furthering a compelling interest.

Thursday, July 09, 2020

Supreme Court GVR's 3 Challenges To Contraceptive Mandate Exemptions

Today the U.S. Supreme Court summarily granted certiorari, vacated the judgment below and remanded to the U.S. 9th Circuit Court of Appeals three cases involving challenges to the Trump Administration's broadened contraceptive mandate exemptions. The Court remanded for further consideration in light of its decision yesterday in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. The cases involved in today's GVR Order are Department of Health and Human Services v. California (Docket No. 19-1038), March for Life Education v. California (Docket No. 19-1040), and Little Sisters of the Poor v. California (Docket No. 19-1053). (Order List).

Expulsion of Catholic Elementary School Students Covered By Ecclesiastical Abstention Doctrine

In Doe v. Archdiocese of Galveston- Houston, (TX App., July 7, 2020), a Texas state appellate court affirmed the dismissal on ecclesiastical abstention grounds of a suit against a Catholic elementary school claiming breach of contract, violations of the Texas Deceptive Trade Practices Act, fraud, intentional infliction of emotional distress, tortious interference, and conspiracy. The school claimed that one of plaintiffs' sons, Bob, was seriously misbehaving, including hitting and kicking classmates. Bob's parents in turn suspected that Bob's teacher was bullying and verbally abusing Bob. The parents hid a recording device on Bob to determine what was going on. When the school discovered this, they expelled both of plaintiffs' sons. The court said in part:

Jane and Peter ... contend that their children were expelled for reasons that have nothing to do with religion, i.e., not because the children “did not want to attend mass, say their prayers, or genuflect when entering the Church.” Rather, they argue that Bob’s misbehavior and their advocacy on his behalf were secular in nature and therefore, their causes of action do not require a review or interpretation of the teachings of the Catholic church.

The jurisdictional evidence supplied by the school defendants and the Archdiocese tells a somewhat different story—one involving a breach of trust by Jane and Peter and breach of the rules broadly included in the school’s Family Handbook.... [T]he trial court did not err ... because the management of internal affairs, conformity of members to the moral standards required of them, and, in the context of an educational faith-based institution, the expulsion or retention of students are considered ecclesiastical matters to which the ecclesiastical abstention doctrine applies.

Wednesday, July 08, 2020

Supreme Court Interprets "Ministerial Exception" To Employment Discrimination Claims Broadly

In Our Lady of Guadalupe School v. Morrissey-Berru, (Sup. Ct., July 8, 2020), the U.S. Supreme Court in a 7-2 decision held that two elementary school teachers in separate Catholic schools, are covered by the "ministerial exception" so that they cannot sue for employment discrimination. Justice Alito's majority opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer, Kagan, Gorsuch and Kavanaugh deferred in significant part to churches' own definitions of their employees:

In a country with the religious diversity of the United States, judges cannot be expected to have a complete understanding and appreciation of the role played by every person who performs a particular role in every religious tradition. A religious institution’s explanation of the role of such employees in the life of the religion in question is important.

Comparing the teachers here with the one in the Supreme Court's prior ministerial exemption decision in Hosanna-Tabor, the Court said in part:

When we apply this understanding of the Religion Clauses to the cases now before us, it is apparent that Morrissey-Berru and Biel qualify for the exemption.... There is abundant record evidence that they both performed vital religious duties. Educating and forming students in the Catholic faith lay at the core of the mission of the schools where they taught, and their employment agreements and faculty handbooks specified in no uncertain terms that they were expected to help the schools carry out this mission and that their work would be evaluated to ensure that they were fulfilling that responsibility. As elementary school teachers responsible for providing instruction in all subjects, including religion, they were the members of the school staff who were entrusted most directly with the responsibility of educating their students in the faith. And not only were they obligated to provide instruction about the Catholic faith, but they were also expected to guide their students, by word and deed, toward the goal of living their lives in accordance with the faith. They prayed with their students, attended Mass with the students, and prepared the children for their participation in other religious activities.... Their titles did not include the term “minister,” and they had less formal religious training, but their core responsibilities as teachers of religion were essentially the same. And both their schools expressly saw them as playing a vital part in carrying out the mission of the church, and the schools’ definition and explanation of their roles is important.

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

I write separately, however, to reiterate my view that the Religion Clauses require civil courts to defer to religious organizations’ good-faith claims that a certain employee’s position is “ministerial.”

Justice Sotomayor, joined by Justice Ginsburg, dissented, saying in part:

In foreclosing the teachers’ claims, the Court skews the facts, ignores the applicable standard of review, and collapses Hosanna-Tabor’s careful analysis into a single consideration: whether a church thinks its employees play an important religious role. Because that simplistic approach has no basis in law and strips thousands of school teachers of their legal protections, I respectfully dissent....

[T]he Court’s apparent deference here threatens to make nearly anyone whom the schools might hire “ministers” unprotected from discrimination in the hiring process. That cannot be right....

NBC News reports on the decision.

Supreme Court Upholds Expanded Exemptions From ACA Contraceptive Coverage Mandate

In a 7-2 decision in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, (Sup. Ct., July 8, 2020), the U.S. Supreme Court rejected challenges to the Trump Administration's expanded exemptions from the Affordable Care Act contraceptive coverage mandate. The challenged rules allowed employers with religious exemptions and most employers with moral objections to opt out of furnishing coverage. Justice Thomas' majority opinion, joined by Chief Justice Roberts and Justices Alito, Gorsuch and Kavanaugh held that the ACA gives the relevant federal departments authority to provide these exemptions from the contraceptive mandate. It went on:

The Departments also contend, consistent with the reasoning in the 2017 IFR and the 2018 final rule establishing the religious exemption, that RFRA independently compelled the Departments’ solution or that it at least authorized it. In light of our holding that the ACA provided a basis for both exemptions, we need not reach these arguments. We do, however, address respondents’ argument that the Departments could not even consider RFRA as they formulated the religious exemption from the contraceptive mandate. Particularly in the context of these cases, it was appropriate for the Departments to consider RFRA.

The Court also rejects challenges to the procedural process used to adopt the rules-- including the claim that the Departments did not maintain an open mind in considering comments on the rules before their adoption in final form, saying in part:

We decline to evaluate the final rules under the open-mindedness test. We have repeatedly stated that the text of the APA provides the “‘maximum procedural requirements’” that an agency must follow in order to promulgate a rule.

Justice Alito, joined by Justice Gorsuch, filed a concurring opinion, saying in part:

I would hold not only that it was appropriate for the Departments to consider RFRA, but also that the Departments were required by RFRA to create the religious exemption (or something very close to it). I would bring the Little Sisters’ legal odyssey to an end.

Justice Kagan, joined by Justice Breyer, concurred in the judgment, filing an opinion agreeing that the Departments had statutory authority to differentiate among health plans, but concluding that petitioner's challenge that the Departments' actions were arbitrary and capricious remain open upon remand:

That issue is now ready for resolution, unaffected by today’s decision. An agency acting within its sphere of delegated authority can of course flunk the test of “reasoned decision making.”... The agency does so when it has not given “a satisfactory explanation for its action” .... Assessed against that standard of reasonableness, the exemptions ... give every appearance of coming up short.

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

In accommodating claims of religious freedom, this Court has taken a balanced approach, one that does not allow the religious beliefs of some to overwhelm the rights and interests of others who do not share those beliefs.... Today, for the first time, the Court casts totally aside countervailing rights and interests in its zeal to secure religious rights to the nth degree.

CNN reports on the decision.

6th Circuit Reverses Dismissal of Rastafarian Inmate's Diet and Fasting Claims

In Koger v. Mohr, (6th Cir., July 7, 2020), the U.S. 6th Circuit Court of Appeals reversed an Ohio federal district court's dismissal of two religious accommodation claims brought by a Rastafarian inmate. The court concluded that officials had not offered adequate justification for refusing to provide an Ital diet (organic food, vegetarian no soy). The court also concluded that plaintiff had asserted a valid equal protection claim as to refusal to accommodate Rastafarian fasting days:

Koger stated that he “fasted during Ramadan in the past because it occasionally aligns with the fasting days observed by Rastafarianism” and because ODRC did not allow him “to fast as a Rastafarian . . . without being subject to discipline.”

The court affirmed the dismissal of plaintiff's claims as to dreadlocks and inability to commune with other Rastafarians.