Order To Stay Away From Basilica Did Not Violate RFRA

 In De Bèarn v. United States, (DC Ct. App., Sept. 10, 2020), the District of Columbia's highest local appellate court held that a stay-away order barring appellant from the Basilica of the National Shrine of the Immaculate Conception did not violate his rights under the Religious Freedom Restoration Act. Gaston DeBéarn was arrested on charges of destruction property after he entered the Basilica yelling about the need to restore the traditional mass and ran to the altar knocking over candle sticks. A court issued the stay-away order as a condition of releasing DeBéarn before trial.  DeBéarn twice violated the order and was also charged with two counts of contempt. In rejecting DeBéarn's RFRA defense, the court said in part:

“Not just any imposition on religious exercise creates a substantial burden; a burden must have some degree of severity to be considered substantial.”...

At trial, appellant noted that the Shrine was his “favorite” place to attend mass and that he did not “go to other churches” because they are “just not as beautiful as that one.” He acknowledged, however, that he could go to other churches. “With so many alternative places to practice [his religion],” we are satisfied that the stay-away order imposed on appellant as to a single Catholic church “d[id] not force [appellant] to choose between abandoning [his] faith and facing criminal prosecution.”...

1st Circuit Hears Oral Arguments In COVID-19 Worship Service Limitation Challenge

 The U.S. 1st Circuit Court of Appeals yesterday heard oral arguments in Calvary Chapel of Bangor v. Mills. (Audio of full oral arguments.) In May, a Maine federal district court a Maine federal district court rejected a church's First Amendment challenge to Maine Governor Janet Mills' COVID-19 order which at that time prohibited religious gatherings of more than ten people. (See prior posting.)  WBAI News reports on the oral arguments.

DoD Issues New Document On Transgender Military Service

Last week (Sept. 4), the Department of Defense issued DoD Instruction 1300.28 setting out its current policy on enlistment and service in the military by transgender individuals. The new document tracks a policy memo issue last March. (See prior posting.) The new Instruction provides in part:

Transgender Service members and applicants for Military Service [who enlisted on or after April 12, 2019 or who are newly diagnosed with gender disphoria] ... must adhere to the standards associated with their biological sex. Transgender Service members may consult with a military medical provider, receive a diagnosis of gender dysphoria, and receive mental health counseling, but may not obtain a gender marker change or serve in their preferred gender. A Service member may be retained without a waiver provided that a military medical provider determined that gender transition is not medically necessary to protect the health of the individual. Continued service is contingent on the Service member not seeking gender transition, the Service member being willing and able to serve in his or her biological sex, and the Service member being able to meet applicable deployability requirements.

DOE Issues Final Rule On College Free Speech and Equal Treatment of Student Religious Groups

Yesterday, the U.S. Department of Education announced the release of its Final Rule (full text) conditioning government grants on protections of free speech rights and equal treatment of religious organizations. Summarizing the 246-page Release, DOE said in part:

[P]ublic colleges and universities must comply with the First Amendment as a requirement to receive Department grants. Private institutions of higher education must comply with their own stated institutional policies regarding freedom of speech, including academic freedom, as a requirement of Department grants.... 

Second, the rule clarifies how an institution may demonstrate that it is controlled by a religious organization for purposes of Title IX. Federal law provides that Title IX “shall not apply” to educational institutions that are “controlled by a religious organization,” to the extent that application of Title IX would not be consistent with the religious tenets of such organization....

Third, the rule ensures equal treatment of religious student organizations at public colleges and universities. As a requirement of the Department’s grants, public colleges and universities must not deny to a religious student group any of the rights, benefits, or privileges that other student groups enjoy. For example, a religious student group must have the same rights as other student groups at the public institution to receive official recognition, to use the institution’s facilities, and to receive student fee funds. Equal treatment of religious student groups is now a material condition of the Department’s grants.  

Fourth, the rule revises regulations governing some discretionary grant programs under Titles III and V of the Higher Education Act.... Current regulations could prohibit a school from using such a grant for even secular activities or services such as teaching a course about world religions. The rule more narrowly tailors the prohibition on the use of these grants to religious instruction, religious worship, or proselytization. The rule also ... clarif[ies] that institutions are not prohibited from using grants for a secular department of religion.

Education Dive reports on the new Rule.

California Ban On Indoor Religious Services Upheld

In Harvest Rock Church v. Newsom, (CD CA, Sept. 2, 2020), a California federal district court refused to issue a preliminary injunction to a church challenging the state's COVID-19 orders that prohibit indoor church services.  The court said in part:

Because the Orders restrict indoor religious services similarly to or less than comparable secular activities, it is subject to rational basis review, which it easily passes: by limiting certain activities, the Orders reduce person-to-person contact, which in turn furthers the interest of reducing COVID-19 spread. Accordingly, Plaintiffs are not likely to succeed on the merits of their Free Exercise Claim. 

The court also rejected Establishment Clause and free speech challenges.

2020 Census Will Tabulate Sikhs As Ethnic Category

India West reported yesterday that for the first time, Sikhs can be counted in the ongoing 2020 census as a separate group, despite the legal prohibition on the census asking questions about religion.  The Census Bureau will consider Sikhism to be a cultural or ethno-religious category.  As explained by India West:

Sikhism does not appear as a category to tick off on the census forms ..., but Sikhs can tick off the "Other Asian" category and write in their religion as a sub-category instead of listing themselves under Asian Indian or other listed racial and ethnic identities....

But while anyone can write in any religious or ethnic or linguistic identities beyond the categories that appear on the form, only Sikhs and some others are given a code that will allow them to be tabulated separately....

"'Sikh' will be included as a distinct detailed population group within the 'Asian' racial category, and not classified as 'Asian Indian' as it was in the 2010 Census when it was viewed as a religious response," according to the Census Bureau.

The bureau did not say where Sikhs who were not of Asian origin, like many members of the Sikh Dharma of the Western Hemisphere, who are racially White, can write in their separate identity.

"The Census Bureau included 'Sikh' codes as part of the draft 2020 Census code list within the 2018 Census Test Redistricting Data Prototype," it said.

Britain Asks For Comment On Reform of Marriage Law

Britain's Law Commission last week issued a 458-page Consultation Paper on Weddings Law (full text). The document titled Getting Married, proposes for public comment significant changes in laws relating to marriage in England and Wales. The document explains:

1.3 Weddings law in England and Wales is in desperate need of reform.

1.4 The law is ancient, with most of the current rules dating from the 18th and 19th centuries. The rules were devised at a time when virtually everyone lived, married and died within a single community, and when most people shared the same faith and beliefs; indeed, religion would have been the dominating force in most people’s lives. Weddings today are still governed by this system. The law is based on a way of life that bears little resemblance to life in England and Wales today.

1.5 Unsurprisingly, then, the law does not work for many. It restricts how couples are permitted to celebrate their weddings, for historical rather than current policy reasons.

3.4 ...[T]he scheme we provisionally propose is based on regulation of the officiant. That would mark a significant shift in focus from the current law, under which regulation is generally based around the building in which the wedding takes place. With very few exceptions, under our proposed scheme, the same rules would apply to all weddings. Again, that is different to the current law ... under which different rules often apply to Anglican weddings, Jewish and Quaker weddings, other religious weddings, to civil weddings that take place in a register office, and to civil weddings that take place on approved premises.

Law & Religion UK reports on these developments.

Sudan Agrees To Separation of Religion and State As Part of Peace Deal

 Voice of America reports:

Sudan's transitional government has agreed in principle to separate religion and state after three decades of Islamic rule in the country.

Prime Minister Abdalla Hamdok and Abdel-Aziz Adam al-Hilu, the leader of the rebel SPLM-North faction, signed a declaration of principles in the Ethiopian capital, Addis Ababa, Thursday evening [Sept. 3] that says, "The state shall not establish an official religion. No citizen shall be discriminated against based on their religion."

Christianity Today adds further details:

The agreement was signed in Addis Ababa, Ethiopia, four days after a more inclusive peace deal was signed with a coalition of rebel groups in the Sudan Revolutionary Front in Juba, South Sudan.

The Juba agreement established a national commission for religious freedom, which guarantees the rights of Christian communities in Sudan’s southern regions.

Recent Articles and Books of Interest

From SSRN:

• Nicholas Aroney, The Rise and Fall of Human Dignity (July 27, 2020).
• David Orentlicher, Cruzan and Surrogate Decision-Making, (SMU Law Review, Vol. 73, No. 1, 2020, pages 155-162).
• Lloyd Hitoshi Mayer, Charitable Crowdfunding,(September 4, 2020). Notre Dame Legal Studies Paper No. 200904 (Sept. 2020).
• Paul B. Miller, The Morality of Fiduciary Law, (62 Wm. & Mary L. Rev. (2021 Forthcoming)).

From SmartCILP:

• Dallan F. Flake, Interactive Religious Accommodations, 71 Alabama Law Review 67-114 (2019).
• Robin Fretwell Wilson, Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, 51 Connecticut Law Review 483-574 (2019).
• Kermit V. Lipez, Reflections on the Church/State Puzzle, [Abstract], 20 Journal of Appellate Practice & Process 7-60 (2019).

Recent Books:

• Joel Harrison, Post-Liberal Religious Liberty: Forming Communities of Charity, (Cambridge University Press, July 2020).
• John Corrigan, Religious Intolerance, America, and the World: A History of Forgetting and Remembering, (University of Chicago Press, April 2020).
• David Nash, Acts Against God: A Short History of Blasphemy, (University of Chicago Press, July 2020).
• Jeremy Patrick, Faith or Fraud: Fortune-Telling, Spirituality and the Law, (University of British Columbia Press, Sept. 2020).
• Winnifred Fallers Sullivan, Church State Corporation: Construing Religion In US Law, (University of Chicago Press, July 2020).
• Tony Keddie, Republican Jesus: How the Right Has Rewritten the Gospels, (University of California Press, Oct. 2020).

Court Denies Summary Judgment In Attempt To Permanently Enjoin Disclosure Requirements By Pro-Life Pregnancy Centers

 In National Institute of Family and Life Advocates v. Rauner, (ND IL, Sept. 3, 2020), an Illinois federal district court denied summary judgment to two pro-life crisis pregnancy centers that are seeking to permanently enjoin enforcement of an Illinois statutory provision conditioning immunity for health care providers on their disclosure of medical options, including those that conflict with their religious beliefs. They must also facilitate patients' obtaining such services from others. In 2017, a different federal district court judge issued a preliminary injunction against enforcement of the Act. (See prior posting.) In refusing at this stage of litigation to make the injunction permanent, the court said in part:

In this litigation, Plaintiffs allege that the CPCs’ ability to promote their religiously motivated pro-life messaging ... are threatened by changes to the Illinois Healthcare Right of Conscience Act adopted in 2016....The law will compel them, Plaintiffs assert, to discuss the benefits of treatments they deem objectionable: abortion, contraception, or sterilization. Likewise, under the law, Plaintiffs must facilitate those treatments by providing patients with lists of doctors who provide those services or by transferring or referring patients to them. Both requirements violate Plaintiffs’ First Amendment Speech and Free Exercise rights, they claim....

Starting with the requirement to discuss the benefits of abortion, the court agrees with Defendant that as in Casey, this is a regulation of professional conduct that only incidentally burdens speech....

The court is mindful that from Plaintiffs’ perspective, the law compels speech on a message antithetical to their beliefs and thereby contradicts this Free Speech principle. But the court too recognizes that Plaintiffs’ patients are no less deserving of this right to decide for themselves what ideas are worth considering and adhering to, and the state may be well within its powers to protect this principle in a context involving “matters of the highest privacy and the most personal nature.”...

If the law does no more than bring the regulations of conscience objectors into conformity with that of other medical professionals (again, still a disputed issue), then the amended HCRCA may not be characterized as discriminating against religious medical professionals. The law’s text and history ... suggest instead that the legislature adopted the changes due to legitimate concerns about patient access to healthcare and not out of a desire to stifle religiously-motivated conduct.

6th Circuit: Settlement In Long-Running Baptist Children's Home Case Is Unenforceable

In Pedreira v. Sunrise Children's Services, Inc., (6th Cir., Sept. 2, 2020), the U.S. 6th Circuit Court of Appeals, in an Establishment Clause case that has been in litigation for 20 years, held that a proposed modified consent decree that was to settle the case is unenforceable. The case involves a challenge to the state of Kentucky's funding of treatment for abused and neglected children in facilities operated by Sunrise Children's Services, a Baptist organization. (See prior related posting.) The 6th Circuit agreed with the district court that the consent decree violates Kentucky law because it requires enactment of new or modified administrative regulations to be implemented.

Church Says Signage Required To Exclude Guns Burdens Free Speech

Suit was filed in a Texas federal district court earlier this week by a Unitarian Church (and another plaintiff) challenging a Texas law that makes it difficult to exclude individuals carrying firearms from one's property. The complaint (full text) in Bay Area Unitarian Universalist Church v. Paxton, (SD TX, filed 9/2/2020) alleges in part:

Texas has ignored the First Amendment and enacted legislation that singles out a group with which it disagrees—those who prefer to keep guns off of their property—and selectively burdens their speech. Specifically, Texas property owners who espouse this viewpoint must post multiple large, text-heavy signs containing language specified by the State in order to exercise the longest established and most fundamental of their property rights: the right to exclude. If these property owners use other means of indicating that firearms are not welcome on the premises—even if entirely reasonable and understandable—they cannot avail themselves of Texas’s criminal trespass laws. By contrast, property owners who wish to exclude others for any other reason at all do not face these same burdens. This viewpoint-based discrimination was entirely intentional....

The Church has an official policy that forbids carrying firearms, whether open or concealed, onto church property....  One of the most fundamental religious tenets of the Church is to address conflict through conversation, non-violence, love, and compassion. The Church believes that the signs required by the Acts detract from those religious principles.

[Thanks to Scott Mange for the lead.] 

7th Circuit: COVID-19 Order Exempting Religious Services Is Valid

 In Illinois Republican Party v. Pritzker, (7th Cir., Sept. 3, 2020), the U.S. 7th Circuit Court of Appeals rejected arguments by the Illinois Republican Party that Illinois Governor J.B. Pritzker's COVD-19 Order limiting gatherings (including political gatherings) to 50 people is unconstitutional because there is an exemption from the limit for religious services. The court, denying a preliminary injunction, said in part:

A careful look at the Supreme Court’s Religion Clause cases, coupled with the fact that EO43 is designed to give greater leeway to the exercise of religion, convinces us that the speech that accompanies religious exercise has a privileged position under the First Amendment, and that EO43 permissibly accommodates religious activities....

Because the exercise of religion involves more than simple speech, the equivalency urged on us by the Republicans between political speech and religious exercise is a false one.... Free exercise of religion enjoys express constitutional protection, and the Governor was entitled to carve out some room for religion, even while he declined to do so for other activities.

Jurist reports on the decision.  [Thanks to Steven H. Sholk for the lead.]

Canada, Netherlands Will Assist In Case Against Myanmar For Genocide Against Rohingya

 In a Joint Statement (full text) issued on Wednesday, the Foreign Ministers of Canada and the Netherlands said that their governments plan to intervene in the genocide case that has been brought against Myanmar at the International Court of Justice. In the case, Gambia claims that Myanmar has taken and condoned actions against Rohingya Muslims that violate the Convention on the Prevention and Punishment of the Crime of Genocide. In an initial decision, the International Court imposed provisional measures on Myanmar.  In their Joint Statement, Canada and the Netherlands said in part:

The Gambia took a laudable step towards ending impunity for those committing atrocities in Myanmar and upholding this pledge. Canada and the Netherlands consider it our obligation to support these efforts which are of concern to all of humanity. As part of this intervention, Canada and the Kingdom of the Netherlands will assist with the complex legal issues that are expected to arise and will pay special attention to crimes related to sexual and gender-based violence, including rape.

Al Jazeera reports on these developments.

9th Circuit Upholds California School Curriculum On Hinduism

 In California Parents for the Equalization of Educational Materials v. Torlakson, (9th Cir., Sept. 3, 2020), the U.S. 9th Circuit Court of Appeals upheld the dismissal of a suit claiming that California's History-Social Science Standards and Framework incorrectly describe Hinduism and treat it negatively in relation to the treatment of other religions. Rejecting plaintiffs' free exercise claims, the court said in part:

Appellants allegations suggest at most that portions of the Standards and Framework contain material Appellants find offensive to their religious beliefs. .... Offensive content that does not penalize, interfere with, or otherwise burden religious exercise does not violate Free Exercise rights. 

The court also rejected equal protection, due process and establishment clause challenges. Education Week reports on the decision.

Muslim Woman Sues After She Was Forced To Remove Her Hijab

Last week, a Muslim woman sued a Michigan county and two State Police officers for requiring her to remove her hijab when she was booked and arraigned on an outstanding warrant after a traffic stop. The process caused her to be viewed by a number of men with he head uncovered, in violation of her religious beliefs. The complaint (full text) in Cave v. Genesee County, (ED MI, filed 8/26/2020) asserts violations of the Free Exercise Clause, RLUIPA and the Equal Protection Clause. NBC25 News reports on the lawsuit.

Court Enjoins Two Portions of Trump Administration's New Health Care Anti-Discrimination Rules

 In Whitman-Walker Clinic, Inc. v. U.S. Department of Health and Human Services, (D DC, Sept. 2, 2020), the D.C. federal district court, in a 101-page opinion, issued a nationwide injunction barring enforcement of two of the changes to health care anti-discrimination rules made by the Trump Administration earlier this year.  (See prior posting.)  The court summarized its holding:

The Court ultimately concludes that Plaintiffs have standing to level challenges to certain provisions of the 2020 Rule, but not others, and that they are likely to succeed (and will suffer irreparable harm) on two central claims: first, that the 2020 Rule arbitrarily and capriciously eliminated “sex stereotyping” from the prior Rule’s definition of “discrimination on the basis of sex”; and second, that it improperly incorporated Title IX’s exemption of certain religious organizations from the statute’s nondiscrimination mandate. 

Suit Challenges Tennessee's Abortion Reversal Disclosure Requirement

Suit was filed in a Tennessee federal district court this week challenging a recently enacted Tennessee abortion law (Tenn. Code Sec. 39-15-218, effective Oct. 1, 2020)  that requires doctors to tell their patients that it may be possible to reverse the effects of the first drug given to induce a medical abortion if the woman acts quickly. The complaint (full text) in Planned Parenthood of Tennessee and North Mississippi v. Slatery, (MD TN, filed 8/31/2020) alleges in part:

By forcing Plaintiffs to communicate a government-ordered message with which they and the overwhelming consensus of the medical profession disagree, and to present abortion patients with untruthful, misleading, and irrelevant information, the Act violates the First Amendment right of Plaintiffs and their staff and physicians against compelled speech, as well as their patients’ privacy rights under the Fourteenth Amendment. The Act likewise violates the Fourteenth Amendment’s guarantee of equal protection, singling out abortion providers and patients for adverse treatment not imposed on any other medical providers or patients in the State.

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

Cert. Petition Filed In Hierarchical Deference Case

 A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Schulz v. Presbytery of  Seattle. In the case, a Washington state appellate court upheld a trial court's deference to decisions of the Administrative Commission set up by the Presbyterian Church USA's representative in connection with disputes regarding a break-away congregation.  (See prior posting.) The petition for review frames the Question Presented as:

In a dispute between a local congregation and its former denomination over ownership of property to which the local congregation holds legal title, does the First Amendment permit courts to apply a rule of absolute deference to assertions of ownership by the denomination?

[Thanks to Paul Harold for the lead.]

Catholic Student Sues After He Is Removed As University Student Senate President Because of His Views

Suit was filed this week in Florida federal district court claiming that plaintiff's free speech and free exercise rights were infringed when he was removed as president of Florida State University's Student Senate.  The complaint (full text) in Denton v. Thrasher, (ND FL, filed 8/31/2020), alleges in part:

Mr. Denton is a devout Catholic, and he expressed basic Catholic teachings to other Catholic students in a private group chat. But, because Catholic teachings have implications for some social issues that some consider offensive, those messages were shared, student outrage was fomented, and the Student Senate implemented an ad hoc religious test for office: no one with Mr. Denton’s beliefs can hold a leadership position in our Student Senate (even if they only talk about those beliefs in private)....

The complaint describes the contents of plaintiff's group chat with members of the Catholic Student Union:

One student shared a link to a video on YouTube that raised advertising and donation revenue for several organizations.... Mr. Denton observed that, “The various funds on that list are fine causes as far as I know, but everyone should be aware that BlackLivesMatter.com, Reclaim the Block, and the ACLU all advocate for things that are explicitly anti-Catholic.” ... “BlackLivesMatter.com fosters ‘a queer-affirming network’ and defends transgenderism. The ACLU defends laws protecting abortion facilities and sued states that restrict access to abortion. Reclaim the Block claims less police will make our communities safer and advocates for cutting PDs’ budgets. This is a little less explicit, but I think it’s contrary to the Church’s teaching on the common good.”

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

Kentucky AG Says Closing Religious Schools In COVID Pandemic Is Unconstitutional

Last month, Kentucky's Attorney General issued Opinion OAG-20-13 (Aug. 19, 2020) concluding that state or local officials may not order the closure of religiously affiliated schools that comply with reasonable social distancing and hygiene guidelines during the COVID pandemic. The Opinion says in part:

Given the central importance of religious education to faith communities, any order by a state or local official to close a religiously affiliated school likely would “prohibit[] the free exercise” of religion in violation of the First and Fourteenth Amendments, especially if the government continues its arbitrary manner of picking and choosing which institutions must close and which may remain open to the public. U.S. Const. amends. I, XIV.

In addition, such an order likely would violate Kentucky’s Religious Freedom Restoration Act, KRS 446.350, which provides that the government may not “substantially burden” a sincerely held religious belief “unless the government proves by clear and convincing evidence that it has a compelling governmental interest in infringing the specific act or refusal to act and has used the least restrictive means to further that interest.”...

Religiously affiliated schools in the Commonwealth have pledged to heed these expert recommendations, and guidance to wear face coverings, wash hands frequently, and maintain social distancing of six feet. For that reason, and considering that various other activities and gatherings may move forward—it is difficult to imagine how closing religiously affiliated schools could pass Constitutional or statutory muster....

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

7th Circuit: Ministerial Exception Does Not Cover Hostile Work Environment Claims, Absent Tangible Employment Action

In Demkovich v. St. Andrew the Apostle Parish, (7th Cir., Aug. 31, 2020), the U.S. 7th Circuit Court of Appeals, responding to a question certified to it by an Illinois federal district court held by a 2-1 vote that the ministerial exception doctrine does not bar hostile work environment claims brought by a ministerial employee where no tangible employment action was taken.  In the case, the music director of a Catholic church alleged that his supervisor harassed an humiliated him about his sexual orientation, as well as his weight and his medical issues.  The majority held in part:

The ministerial exception gives religious organizations the power to use the full range of tangible employment actions to select and control their ministerial employees without judicial review or government interference under these federal statutes. These employers are thus able to control their employees in every way that would be necessary to exercise their religious freedoms. It is hard to see how the Church could not have adequately controlled plaintiff as a ministerial employee by deciding whether to hire him and whether to fire him, or by deciding his job duties, his place of work, his work schedule, his compensation, the resources he needed to work, and so forth.

Subjecting plaintiff to the abuse alleged here is neither a statutorily permissible nor constitutionally protected means of “control” within the meaning of Hosanna–Tabor.

Judge Flaum dissented, saying in part:

Beyond infringing on the Church’s free exercise rights in this case, allowing ministers to bring hostile work environment claims will “gravely infringe” on the rights of religious employers more generally “to select, manage, and discipline their clergy free from government control and scrutiny” by encouraging them to employ ministers that lessen their exposure to liability rather than those that best “further [their] religious objective[s].”

Recent Articles of Interest

 From SSRN:

• Mehwish Shaukat, American Muslim Women: Who We Are and What We Demand From Feminist Jurisprudence, 31 Hastings Women's L.J. 155 (2020).
• Jay Wexler, Secular Invocations and the Promise of Religious Pluralism, (Roger Williams University Law Review, Forthcoming).
• Thomas Charles Berg & Douglas Laycock, Espinoza, Government Funding, and Religious Choice, (Journal of Law and Religion, Forthcoming).
• Anton Sorkin, 'Them:' Bridging of Divides Between Distant Neighbors After Masterpiece Cakeshop, (University of San Francisco Law Review, 2019).
• Robert K. Vischer, How Distinctive Should Catholic Law Schools Be, (Journal of Catholic Legal Studies, forthcoming).
• Jeffrey A. Redding, Queer/Religious Friendship in the Trump Era, (August 26, 2020).
• Ronald J. Colombo, The Past, Present, and Future of Christian ADR, (Cardozo Journal of Dispute Resolution (Forthcoming)).
• Marc Spindelman, The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, Part VI, (Ohio State Law Journal Online, Vol. 81, 2020).
• Anthony McMullen & Nicholas Williams, Title VII Now Protects LGBTQ Employees: Where Employers Go from Here, (July 20, 2020).

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

• Anika Gray & Taitu Heron, A Legislative Review of Restrictive Provisions Governing Women’s Access to Abortion in the Eastern Caribbean, (March 19, 2020).
• Wellingtone Edaki, Kadhis’ Court Jurisdiction Conundrum; Interfaith Marriage and Legal Conflict in the Union, (July 1, 2020).

From SmartCILP:

• The Second International Conference on Climate, Nature, and Society: Selected Conference Excerpts, [Abstract], 32 St. Thomas Law Review 3-30 (2019). Articles by: Morgan, Temperince; Antal, Jim; Kirtman, Ben; Gilbert, Oliver III; Rodriguez, Jose Javier; Vinciguerra, Tebaldo; Salkin, Jeffrey K; Ahmad, Nadia B; Gladwin, Ryan; Maxwell-Carroll, Tania; Cioffi, Alfred.
• Interview with Khaled Beydoun (hosted by Nina Mozeihem and Samuel Bagenstos), 52 University of Michigan Journal of Law Reform 903-922 (2019).

10th Circuit: Inmate Has Equal Protection, But Not RFRA, Claim Over Prayer Space

 In Tenison v. Byrd, (10th Cir., Aug. 28, 2020), the U.S. Tenth Circuit Court of Appeals reversed an Oklahoma federal district court's dismissal of a Muslim inmate's claim that his equal protection rights were violated when he was not allowed to pray in the prison day room. Plaintiff alleged that Christian prayer was allowed in day rooms. The court concluded:

If believed, Tenison’s evidence is sufficient for a reasonable factfinder to conclude that Christians seeking to practice their religion in the dayroom deliberately are treated differently (and more favorably) than Muslims.

The court, however, rejected plaintiff's claim that his free exercise rights under the 1st Amendment and RFRA were  substantially burdened, saying in part:

We are not persuaded, however, that requiring Tenison to return to his cell to pray either prevents him from praying or subjects him to substantial pressure not to pray. Tenison is not prevented from praying; he simply must plan his dayroom time around the times he must be in his cell to pray. And having to forgo an unspecified amount of dayroom time does not amount to substantial pressure not to return to his cell to pray.

RFRA Claim For Insisting On Social Security Number In Passport Application Moves Ahead

 In Carmichael v. Pompeo, (D DC, Aug. 28, 2020), three individuals sued the State Department because it insisted that they furnish their Social Security numbers in order to renew their passports. Plaintiffs claim that identifying themselves with Social Security numbers violates their Christian beliefs. The court dismissed most of plaintiffs' claims, but allowed them to move forward, among others, with their claim under the Religious Freedom Restoration Act. The court concluded that plaintiffs had adequately alleged a substantial burden on their religious exercise:

They must choose between adhering to their religious beliefs—the sincerity of which is not challenged by the Government nor questioned by the Court—and receiving a government benefit.

Ministerial Exception Doctrine Does Not Apply To Hostile Work Environment Claim

In Middleton v. United Church of Christ, (ND OH, Aug. 26, 2020), an Ohio federal district court held that the ministerial exception doctrine does not preclude a minister bringing a hostile work environment claim, at least where the claim does not involve the court in excessive entanglement with religious matters. The court said in part:

[A]fter examining Middleton’s first cause of action, the court concludes that it does not implicate “any matters of church doctrine or practice.” ... Middleton’s hostile workplace claim involves allegations of racial and gender harassment that are wholly unrelated to Defendants’ religious teachings. ....

Nevertheless the court went on to dismiss the hostile work environment claim, saying in part:

While Middleton describes interactions that are unprofessional and unpleasant, none of the alleged conduct was physically threatening or humiliating. At most, these sporadic comments constituted “offensive utterances,” which “do not rise to the level required by the Supreme Court’s definition of a hostile work environment.”

The court held that plaintiff's breach of contract and promissory estoppel claims were barred by the ministerial exception doctrine. [Thanks to Heather Kimmel for the lead.]

FDA Asks SCOTUS To Stay Injunction On Medical Abortion Access

Yesterday the federal government filed with the U.S. Supreme Court an Application For A Stay of An Injunction (full text) in American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration. In the case, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar 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 4th Circuit refused to stay the injunction pending appeal. (See prior posting.) In its Application, the FDA argued in part:

Given that surgical methods of abortion remain widely available, the enforcement of longstanding safety requirements for a medication abortion during the first ten weeks of pregnancy does not constitute a substantial obstacle to abortion access, even if the COVID-19 pandemic has made obtaining any method of abortion in person somewhat riskier.

 The Hill reports on the Application. [Thanks to Scott Mange for the lead.]

Zoning Board Members Have Qualified Immunity In Mosque's Suit

In Adam Community Center v. City of Troy, (ED MI, Aug. 26,2020), a Michigan federal district court held that members of a city's Zoning Board of Appeal who voted to deny a zoning variance sought by a mosque are entitled to qualified immunity in a suit against them personally for damages.  The court said in part:

The record does not present sufficient evidence to establish that the Individual Defendants knew or should have known their straightforward application of the seemingly legal zoning regulations, which impose different setback requirements on places of worship and places of business, would violate Plaintiff’s constitutional rights. And Plaintiff provides no legal authority clearly establishing that a government official violates a citizen’s right to freedom of religion when it enforces an apparently valid zoning ordinance for facially neutral reasons that may or may not interfere with the citizen’s right to express her religion. 

Moreover, Plaintiff fails to present sufficient evidence to establish that each of the of the Individual Defendants, in voting to deny Plaintiff’s variance application, acted with discriminatory intent or religious annimus...

However, in finding that the Individual Defendants are entitled to qualified immunity, the Court cautions that its decision here should in no way be construed as a finding that Plaintiff’s constitutional rights were not violated by the ZBA’s decision, or as absolving the ZBA , the City, or any of the Entity Defendants from potential liability.

Court Enjoins DOE Rule Favoring Funding of Private Schools Under CARES Act

In State of Washington v. DeVos, (WD WA, Aug. 21, 2020), a Washington federal district court granted a preliminary injunction barring enforcement of a Guidance and an Interim Final Rule issued under the CARES Act by the Department of Education. The rule essentially encourages use of a formula that has the effect of increasing the proportion of CARES Act funding going to private schools (including religious schools), at the expense of public schools. Education Week reports on the decision. [Thanks to Mel Kaufman for the lead.]

5th Circuit Denies Stay of Decision Invalidating Texas Abortion Restrictions

In Whole Woman's Health v. Paxton, (5th Cir., Aug. 21, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision refused to stay a district court decision handed down nearly 3 years ago which struck down a Texas abortion law banning  the standard dilation and evacuation procedure. The majority explained:

[W]e address our dissenting colleague’s [Judge Willett's] view that the motion should be granted, and this case remanded, because the governing legal standards have supposedly changed in light of the Supreme Court’s decision in June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020).  Respectfully, this is not so. June Medical Servs. LLC v. Russo, 140 S. Ct. 2103 (2020), has not disturbed the undue-burden test, and Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292 (2016), remains binding law in this Circuit.

The State’s stay motion is also patently procedurally defective.... [T]he problem here is that the State does not even attempt to explain why it would be “pointless” to move first in the district court.

[Thanks to Scott Mange for the lead.] 

Oregon's COVID-19 Limits On Religious Schools Upheld

 The Oregonian reports that on Aug. 20, an Oregon federal district court in Horizon Christian School et al v. State of Oregon denied a request for a temporary restraining order to allow three Christian schools to reopen in violation of Gov. Kate Brown's COVID-19 executive order.  In what was apparently an opinion delivered orally from the bench, the court said in part:

In my view the religious institutions here in K-through-12 aren’t being treated in any way differently than public K-through-12 institutions...

The harm the state is trying to prevent is death and not just death as in a few, but the possibility of a widespread pandemic killing our most vulnerable citizens...

6th Circuit Upholds Denial of Inmate's Religious Diet Request

 In Miles v. Michigan Department of Corrections, 2020 U.S. App. LEXIS 26666 (6th Cir., Aug. 20, 2020), the U.S. 6th Circuit Court of Appeals rejected a "Moorish American Moslem" inmate's claim that his rights under the Free Exercise clause and RLUIPA were violated when his request for a pork-free diet was denied. The court said in part:

As part of his request, Miles signed a statement agreeing to "not possess food items forbidden by my religion's teachings." The defendants explained that Miles's "request was denied because [he] made prison store purchases that were inconsistent with his professed religious dietary restrictions," namely the repeated purchase of pork products such as summer sausage and chili. Additionally, Leach averred in a supporting affidavit that "[a]llowing a prisoner to have a religious meal when he openly flaunts restrictions imposed on other same-faith prisoners could provoke [*7]  resentment amongst other prisoners who are adhering to the tenets, which could lead to violence within the facility." "Prison officials have a legitimate penological interest not only in controlling the cost of the [religious] meal program and ensuring that only those with sincere beliefs participate in the program, but also in maintaining discipline within the prison."

Recent Articles of Interest

 From SSRN:

• Audra Savage, COVID-1619: A Brief History of Racism, (August 10, 2020).
• Jianlin Chen & Phapit Triratpan, Black Magic, Sex Rituals and the Law: A Case Study of Sexual Assault by Religious Fraud in Thailand, (37(1) UCLA Pacific Basin Law Journal 25-57 (2020)).
• M.C. Mirow, Félix Varela y Morales (Cuba, 1788-1853), (M.C. Mirow and Rafael Domingo, eds., Law and Christianity in Latin America: The Work of Great Jurists (Routledge, 2020 Forthcoming)).
• Nicholas Aroney & Benjamin Saunders, Freedom of Religion in Australia, (in Matthew Groves, Daniel Meagher and Janina Boughey (eds), The Legal Protection of Rights in Australia (Hart Publishing, Forthcoming)).
• Ahmed Usman, Adultery, the Ground for Dissolution of Christian Marriage in Pakistan: Intersectional Constraint to Christian Women in Pakistan, (Pakistan Perspectives, Vol. 24, No.2, July-December 2019).
• Thomas Charles Berg, Religious Freedom Amid the Tumult, (Forthcoming, University of St. Thomas Law Journal, volume 17 (2021)).
• Fidelis Chuka Aghamelu, Abortion and the Dignity of Human Life: A Reflection on the Fifth Commandment and a Christian Political Response to Contemporary Culture of Death, (Journal of African Studies and Sustainable Development Vol. 2 No 5, 2019).
• Susanna Mancini & Michel Rosenfeld, Nationalism, Populism, Religion, and the Quest to Reframe Fundamental Rights, (Cardozo Law Review, Forthcoming).
• John Vlahoplus, Bostock, Zarda, and R.G & G.R. Harris Funeral Homes: Affirming Equality and Challenging Textualism, (Geo. Wash. L. Rev. On the Docket, 2020).
• Philip Hackney, The 1969 Tax Reform Act and Charities: Fifty Years Later, (Pittsburgh Tax Review, Vol. 17, p. 235, 2020).

From SmartCILP:

• A Symposium on Linda C. McClain’s Who’s the Bigot? Learning from Conflicts over Marriage and Civil Rights Law, 99 Boston University Law Review 2587-2736 (December 2019).
• Linda Ross Meyer, Unreasonable Revelations: God Told Me to Kill, (39 Pace Law Review 745-832 (2019)).

11th Circuit Invalidates School's Rule On Transgender Bathroom Assignments

 In Adams v. School Board of St. Johns County, Florida, (11th Cir., Aug. 7, 2020), the U.S. 11th Circuit Court of Appeals by a 2-1 vote held that a Florida high school's policy that prevented a transgender male from using the boy's bathroom violates the Equal Protection Clause as well as Title IX. The court said in part:

[W]e assume the government may promote its interest in protecting privacy by maintaining separate bathrooms for boys and girls or men and women. Mr. Adams, for his part, does not question the ubiquitous societal practice of separate bathrooms for men and women. Instead, Mr. Adams argues the School Board’s bathroom policy singles him out for differential treatment on the basis of his gender nonconformity and without furthering student privacy whatsoever. The record before us has persuaded us to his view.

The majority noted that the school relies on the student's sex designation on school enrollment forms, and not on their birth certificates. The majority went on:

 A public school may not punish its students for gender nonconformity. Neither may a public school harm transgender students by establishing arbitrary, separate rules for their restroom use. The evidence at trial confirms that Mr. Adams suffered both these indignities.

Chief Judge Pryor dissented, saying in part:

By failing to address head-on the lawfulness of sex-separated bathrooms in schools, the majority recasts the school policy as classifying students on the basis of transgender status. And based on this recasting, it reaches the remarkable conclusion that schoolchildren have no sex-specific privacy interests when using the bathroom. The majority opinion purports to allow only plaintiff Drew Adams, a female who identifies as a male, to use the boys’ bathroom, but the logic of this decision would require all schoolchildren to use sex-neutral bathrooms.

Lambda Legal issued a press release announcing the decision.

August 22: International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief

Yesterday was designated by the United Nations as International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief.  The designation was created by a Resolution (full text) passed by the General Assembly last May. The U.N. website devoted to the day links to a variety of relevant source material.

Establishment Clause Challenge To BLM Mural Dismissed For Lack of Standing

 In Penkoski v. Bowser, (D DC, Aug. 21, 2020), the D.C. federal district court dismissed for lack of standing a suit filed by a pastor and two lobbyists challenging the two-block long painting of "Black Lives Matter" on the pavement of 16th Street near the White House. Identifying themselves as non-Black Christians, plaintiffs claim that the painting violates both the Equal Protection Clause and the Establishment Clause. According to the court:

They claim that the Mural violates the Equal Protection Clause and the Establishment Clause because it labels them—non-black Christians—“second class citizens.” ... The “Black Lives Matter cult,” they allege, “is a denominational sect of the religion of Secular Humanism.” ... This is evidenced both by the BLM protestors’ behavior ... and the “scriptures lifted from the Black Lives Matter’s marxist liturgical creed".... The Mural, Plaintiffs claim, signals the District’s preference both for black citizens and for those that adhere to the BLM denomination.

The court found a lack of standing as to plaintiffs'equal protection claim, saying in part:

The Court does not doubt the sincerity of Plaintiffs’ feelings of ostracization nor quibble with their claims about the divisiveness of the Mayor’s actions.... But these feelings alone cannot justify standing.

It similarly found a lack of standing on plaintiffs' Establishment Clause claim, saying in part:

[A]s with their equal protection claim, Plaintiffs assert a psychological, stigmatic injury for their Establishment Clause claim....

[T]he development of the Establishment Clause and standing doctrines over the past fifty years counsels against adopting offended observer standing here and now, when no contrary precedent binds this Court. The Court, thus, declines to find that Penkoski, Sevier, and Christopher have standing just because they have been “expose[d]” to a display that offends them.

Summary Judgment Denied In Rastafarian's Title VII "Failure To Accommodate" Claim

 In EEOC v. Publix Supermarkets, Inc., (MD TN, Aug. 20, 2020), a Tennessee federal district court refused to grant summary judgment to the EEOC which claims that Publix Supermarkets refused to accommodate Guy Usher's Rastafarian religious beliefs that require him to wear his hair in dreadlocks. The court held that disputed issues of fact remain as to whether the Usher informed Publix that its grooming policy conflicts with his religious beliefs, and that factual questions remain as to whether Usher holds sincere religious beliefs on the matter. The court also allowed the EEOC to move ahead with its failure-to-hire claim, but not with its constructive discharge claim.

Teacher's Suit Over Pronouns Used In Addressing Transgender Student Is Remanded To State Court

 In Vlaming v. West Point School Board, (ED VA, Aug. 19, 2020), a high school teacher sued when he was fired for refusing to abide by school policy that required him to refer to a transgender male student using male pronouns. The suit was originally brought in a Virginia state court (see prior posting), but was removed to federal court by defendants. The suit contended that the school board's decision to fire the teacher violated his rights under the Virginia constitution and various state statutes. In this decision, the Virginia federal district court held that the case was incorrectly removed, and remanded the case to state court because it raises only state law issues.

New Jersey COVID-19 Limits On Indoor Church Services Upheld

In Solid Rock Baptist Church v. Murphy, (D NJ, Aug.  20, 2020), a New Jersey federal district court rejected a church's challenge to the limits on indoor worship services imposed in New Jersey governor's COVID-19 orders,  The court said in part:

Although Plaintiffs have made a compelling case that the Executive Orders were crafted with religious indifference, the Court may not invalidate the executive orders on those grounds alone. In the end, Plaintiffs have been unable to demonstrate that the restrictions on indoor gatherings were crafted with religious animus, have been applied unequally, or lack a rational relationship to a legitimate government objective....

Plaintiffs are rightfully disillusioned that the State has not prioritized indoor religious activity to the same degree as outdoor social justice protests. The State’s apathy to sincerely held religious beliefs, alone, however, does not establish unequal treatment as it pertains to indoor gatherings. Because the Court concludes that Plaintiffs have failed to establish that the Executive Orders, as they pertain to large indoor gatherings, are not facially neutral and generally applicable, the Court finds that Plaintiffs have not established a likelihood of success on the merits.

Challenge To California COVID-19 Limits On Church Services Rejected

 In Whitsitt v. Newsom, (ED CA, Aug. 19, 2020),a California federal magistrate judge recommended dismissing a challenge to the California governor's COVID-19 orders that limited attendance at church service. Rejecting plaintiff's free exercise challenge, the court said in part:

Here, the Stay at Home Order and the subsequent guidelines are facially neutral regarding religion. The Order directs all residents to stay home “except as needed to maintain continuity of operations” of certain business sectors.... The Order exempts “[f]aith based services that are provided through streaming or other technology.” ... Although the Order expressly mentions religious services, it does so to exempt them from its restrictions. The mention of religious services in this context—to exempt them from the Stay at Home Order—does not transform the Order into a facially discriminatory one.

Negligence Claims Against Anti-Gay Church and Pastor Should Not Be Dismissed Under Anti-SLAPP Law

Fritz v. Jimenez, (CA App., Aug. 18, 2020), is a suit brought by individuals who staged protests against Verity Baptist Church and its pastor Roger Jimenez after Jimenez delivered and posted sermons praising the killing of nearly 50 people in a Florida gay night club. The protesters claim that they were subjected to physical violence, death threats and intimidation by church employees. Defendants asked the trial court to dismiss various claims under California's anti-SLAPP statute which is designed to quickly get rid of suits that are brought strategically to chill free speech. The trial court, on this theory, dismissed plaintiffs' claim of negligent supervision. The Court of Appeals reversed saying that the claim did not arise from defendants' exercise of free speech. The court said in part: 

The sermons of Jimenez provide for a clearer understanding of the situation in which the conduct by VBC and Jimenez’s agents and employees happened. However, the statements of Jimenez are not the focus of the negligence claim. Plaintiffs’ negligence claims are colorable even if none of Jimenez’s statements were contained on the complaint because the complaint would still set forth such regular occurrences of violence and intimidation that a claim for negligent supervision would be stated. Even so, plaintiffs are entitled to rely on Jimenez’s sermons and statements to help establish the foreseeability of physical violence and intimidation against them as a risk inherent in the way VBC and Jimenez conducted the enterprise....

The court also affirmed the trial court's refusal to dismiss plaintiffs' premises liability claim. [Thanks to Scott Mange for the lead.]

McDonald's Franchisee Settles EEOC Religious Discrimination Suit

The EEOC announced yesterday that an Orlando, Florida McDonald's franchisee has settled a religious discrimination lawsuit filed against it by the EEOC.  The restaurant refused to hire a Jewish applicant as a part-time maintenance worker because the applicant would not shave his beard. It refused to create an accommodation to its policy that all employees must be completely clean shaven, even though the applicant offered to wear his beard in a net.  A 2½ year consent decree gives damages of $69,555 to the applicant and requires the franchisee to change its grooming policies, conduct anti-discrimination training and take other compliance steps.

Oregon State Law Overrides County Limit On Zoning For Mosque

 In Tarr v. Multnomah County, (OR App., Aug. 19, 2020), an Oregon state appellate court held that a state statute governing zoning for houses of worship prevents a county from applying a "compatibility standard" that appears in the county zoning code.  In a suit by individuals living next door to property on which it is proposed to build a mosque, the court concluded that the county code's requirement that a community service use be "consistent  with  the  character  of  the  area" cannot be invoked to prevent construction of the mosque.  The court said in part:

the  plain  terms  of  ORS  215.441(1)  and  (2),  in context, leave no room for the application of the county’s compatibility  standard—or  standards  like  it—to  proposed  religious  land  uses  where,  as  here,  a  place  of  worship  is  allowed  on  a  particular  piece  of  real  property  under  state  law  and  county  zoning  laws.

Worshipers Lack Standing to Sue Synagogue Picketers

 In Gerber v. Herskovitz, (ED MI, Aug. 19, 2020), a Michigan federal district court dismissed for lack of standing a lawsuit against protesters who for almost 18 years have picketed an Ann Arbor, Michigan synagogue every Saturday morning with anti-Jewish and anti-Israel signs. Plaintiffs, who attend Sabbath services in the synagogue or in an adjacent building, also sued the city of Ann Arbor for failing to enforce the City Code against the protesters.  Plaintiffs contend that the picketing interferes with their Free Exercise right to practice their religion without being harassed. The court held, however:

There is no allegation that the protestors prevent Plaintiffs from attending Sabbath services, that they block Plaintiffs’ path onto the property or to the Synagogue, or that the protests and signs outside affect the services inside. Plaintiffs merely allege that the Defendants’ conduct causes them distress and “interferes” with their enjoyment of attending religious services. This is the “subjective chill” that is “not an adequate substitute for a claim of specific present objective harm or a threat of specific future harm.” Laird v. Tatum, 408 U.S. 1, 13-14 (1972). This type of “chill” does not confer standing and is not actionable. 

Islamic Terrorism Unit In Course Does Not Violate 1st Amendment

In Sabra v. Maricopa County Community College District, (D AZ, Aug. 18, 2020), an Arizona federal district court dismissed a suit challenging the manner in which a community college faculty member taught a portion of a World Politics course. Plaintiffs contend that the instructor's primary message in teaching the Islamic Terrorism module of the course was disapproval of Islam.The court rejected both Establishment Clause and Free exercise challenges, saying in part:

Examining the course as a whole, a reasonable, objective observer would conclude that the teaching’s primary purpose was not the inhibition of religion. The offending component was only a part of one-sixth of the course and taught in the context of explaining terrorism. One aspect of terrorism is Islamic terrorism. Only in picking select quotes from the course can one describe the module as anti-Islam.... [T]he primary effect of Dr. Damask’s course is not the inhibition of the practice of Islam. Therefore, the Plaintiffs’ Establishment Clause claims must be dismissed....

Mr. Sabra was not required to adopt the views expressed by Dr. Damask or the authors Dr. Damask cited to in his course, but only to demonstrate an understanding of the material taught. Dr. Damask’s course did not inhibit Mr. Sabra’s personal worship in any way. Instead, Mr. Sabra was simply exposed to “attitudes and outlooks at odds” with his own religious perspective.... Therefore, as a matter of law, the Court finds that the Plaintiff’s allegations do not amount to a violation of the Free Exercise Clause by the Defendants....

[Thanks to Volokh Conspiracy for the lead.]

Court Enjoins Trump Administration Roll Back of Transgender Protections In Health Care

 In Walker v. Azar, (ED NY, Aug. 17, 2020), a New York federal district court enjoined the Trump Administration's roll back of anti-discrimination rules under the Affordable Care Act and Title IX. The roll back eliminated protections for LGBTQ individuals, and in particular for transgender persons. Citing the Supreme Court's recent Bostock decision, the court stayed the new rules' definition of discrimination on the basis of sex.  The court said:

As a result, the definitions of “on the basis of sex,” “gender identity,” and “sex stereotyping” currently set forth in 45 C.F.R. § 92.4 will remain in effect.

Politico reports on the decision.

Churches Respond To IRS Proposed Changes In Group Exemption Letter Program

 In May, the Internal Revenue Service issued a 63-page proposal (full text) to update procedures for a parent organization to obtain 501(c)(3) non-profit status rulings for a group of subordinate organizations. The Notice explains its purpose, saying in part:

The Internal Revenue Service (IRS) is issuing this guidance in proposed form to provide an opportunity for public comment because the IRS recognizes that, if finalized, the proposed revenue procedure would make substantial changes to the procedures set forth in Rev. Proc. 80-27 and that the application of these new procedures may impose an additional administrative burden on central organizations with group exemption letters in existence on the date the final revenue procedure is published in the Internal Revenue Bulletin (preexisting group exemption letters).

The IRS oversees more than 4,000 group exemption letters that include more than 440,000 subordinate organizations. The IRS has considered how to reduce the administrative burden and increase the efficiency of the group exemption letter program, to improve the integrity of data collected for purposes of program oversight, to increase the transparency of the program, and to increase compliance by central organizations and subordinate organizations with program requirements....

Last week, a 14-page joint comment letter (full text) was filed with the IRS by the Evangelical Lutheran Church, the United Church of Christ, The United Methodist Church, The Episcopal Church, and the Reformed Church in America. It contends that the proposal in its present form violates both RFRA and the 1st Amendment, saying in part:

This letter asks that if the IRS adopts a revamped procedure for the administration of the group ruling exemption process, it make an accommodation to allow the faith communities to continue their status quo.... We do not believe the IRS desires a set of modifications that would burden the expression of religious beliefs in ways that would range from making group rulings overwhelmingly unmanageable to obviously unconstitutional....

The Proposed Revenue Procedure requires that subordinate organizations participating in a group exemption ruling must adopt a uniform governing instrument... 

Considering the decades during which these religious organizations added first thousands, and then tens of thousands, of subordinate organizations to their group rulings, the impact of this requirement going forward is enormous....

Further, the very act of requiring uniform governing instruments is theologically untenable in these denominations that have chosen respective ecclesiastical structures and relationships that best express their beliefs about where authority resides and how it is exercised, and how and by whom ultimate decisions about key theological issues are made....

Even if RFRA were not dispositive, the First Amendment would bar the IRS from effectively dictating polity and structure matters inside a denomination. The IRS cannot close the Group Exemption process to all churches except those able to eccelsiologically impose specific civil forms on subordinates.

Other denominations have also filed comment letters. [Thanks to Jennifer Gniady for the lead.]

Church's Battle Against California Indoor Worship Ban Leads To Court Decisions, and Defiance

 As previously reported, last week church and its pastor filed suit in a California state trial court challenging on state constitutional grounds California's COVID-19 restrictions on worship services. A Thomas More Society press release recounts part of the developments since then:

Hours after Grace Community Church filed suit to invalidate Los Angeles County’s unconstitutional restrictions on churches, the county filed for a temporary restraining order to force the church to stop holding indoor services and comply with unreasonable and over-broad demands. Judge James Chalfant denied almost all of the county’s requests at the August 14 Los Angeles Superior Court hearing, agreeing with MacArthur and the church that it is the county’s burden to show why they should be permitted to infringe on the constitutionally protected rights of churches to freely exercise religion....

 Attorneys for Grace Community Church explained that Los Angeles County was being unreasonable in its demands, and offered to have the congregation comply with face mask wearing and social distancing indoors until the matter could be fully heard.... The judge agreed and set the full hearing for September 4, 2020, ordering the church to have congregants wear masks and social distance between family groups indoors.

The county immediately filed for a writ of mandate with the state court of appeals seeking to override the trial court's order so that it could enforce the COVID-19 ban on indoor church services. The Court of Appeals quickly stayed the trial court's order to the extent it prevented the county from enforcing the ban,  In County of Los Angeles v. Superior Court of Los Angeles County, (CA App., Aug. 15, 2020), the court said in part:

At this very preliminary stage in this litigation, the County has demonstrated a likelihood that it will prevail on the merits of enforcing its July 18, 2020 Health Order. The County's Health Order is presumed to be constitutional unless its "unconstitutionality clearly, positively and unmistakably appears."

According to Religion News Service:

On Sunday morning [Aug. 16], the church met anyway — inside, unmasked, and without adhering to social distancing.

[Pastor] MacArthur noted the church’s defiance during the service, saying, “the good news is that you’re here, you’re not distancing, and you’re not wearing masks.” The congregation cheered in response.

Recent Articles and Books of Interest

 From SSRN:

• Sephen A. Rosenbaum, Invisibility, Inclusivity & Fraternity: [Book Review Essay] 'Was Yosef on the Spectrum? Understanding Joseph Through Torah, Midrash and Classical Jewish Sources' , by Samuel J. Levine, Urim Publications (2019), (36 Touro Law Review 215 (2020)).
• Aabid Majeed Sheikh & Sayed Hanan Yusofi, Religion in International Relations Theory, (Journal of Advances and Scholarly Researches in Allied Education 16, February 2019).
• John H. Shannon & Richard J. Hunter, Jr, The Civil Rights Act of 1964: Beyond Race to Employment Discrimination Based on Sex: The 'Three Letter Word' That Has Continued to Vex Society and The United States Supreme Court, (Journal of Social and Political Sciences, Vol.3 No.3 (2020)).
• Jared Ham, Getting Away with Marginalization: Rejecting a Formalistic Standing Analysis and Remedying LGBTQ+ Discrimination Through Congressional Legislation, (Cornell Journal of Law and Public Policy, Vol. 28, No. 3, 2019).
• Tal Mimran, In A Broken Dream: Lessons from The Rise and Demise of the Self-Declared Caliphate of the Islamic State in Syria and Iraq, (Journal of Transnational Law & Policy, Vol. 29, 2019-2020).
• Aabid Majeed Sheikh, Maulana Maududi and Sayid Qutub on Jihaad and Islamic State, (International Journal of Multidisciplinary Educational Research, Vol 7, No (12(2) (2018).
• 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).
• Peter Molk & D. Daniel Sokol, Nonprofit Governance in an Age of Compliance,(August 7, 2020).

Recent & Forthcoming books:

• Aaron Griffith, God’s Law and Order: The Politics of Punishment in Evangelical America, (Harvard Univ. Press, Nov. 2020).
• William N. Eskridge Jr. & Christopher R. Riano, Marriage Equality: From Outlaws to In-Laws , (Yale Univ. Press, Aug. 2020).

7th Circuit's Limitation On Strip Searches of Inmates Protects Religious Sensibilities [CORRECTED]

 In Henry v. Hulett, (7th Cir., Aug. 11, 2020), the U.S. 7th Circuit Court of Appeals, en banc, held that convicted prisoners retain a Fourth Amendment right to bodily privacy during visual inspection of their bodies. At issue was an abusive mass strip search at a women's prison conducted as part of a cadet training exercise. While the court did not discuss religious freedom issues, an amicus brief (full text) filed by Muslim Advocates, as well as Christian and Jewish groups, emphasized the spiritual harm to prisoners done by strip searches of inmates whose religious beliefs place an emphasis on modesty.  Judge Easterbrook issued a dissenting opinion. Muslim Advocates issued a press release announcing the decision.

Wedding Photographer Successfully Challenges Anti-Discrimination Ordinance

 In Chelsey Nelson Photography LLC v. Louisville/ Jefferson County Metro Government, (WD KY, Aug. 14, 2020), a Kentucky federal district court held that a wedding photographer is likely to succeed in her Free Speech challenge to Louisville, Kentucky's Fairness Ordinance. That law prohibits a business from denying services to an individual based on the person's sexual orientation, and from advertising that it will engage in such discrimination.  Holding that plaintiff's wedding photography is speech, the court said in part:

Nelson is a photographer, editor, and blogger. She takes engagement and wedding photos with artistic skill....

Nelson is also a Christian. Her faith shapes everything she does, including how she operates her photography studio. She believes that marriage is between one man and one woman. For that reason, she would decline to photograph a same-sex wedding, and she would decline to edit photos from a same-sex wedding. She wants to explain these views on her website....

 Louisville can’t ban expression just because it finds the expression offensive.

To be clear, most applications of anti-discrimination laws — including Louisville’s Fairness Ordinance — are constitutional. Today’s ruling is not a license to discriminate. Nor does it allow for the “serious stigma” that results from a sign in the window announcing that an owner won’t serve gay and lesbian customers.... Marriott cannot refuse a room to a same-sex couple.  McDonald’s cannot deny a man dinner simply because he is gay. Neither an empty hotel room, nor a Big Mac, is speech.

ADF issued a press release announcing the decision.

4th Circuit Refuses To Stay Injunction Allowing Mifepristone By Mail

Last month, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar 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. (See prior posting.) Now in American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (4th Cir., Aug. 13, 2020), the U.S. 4th Circuit Court of Appeals refused to grant a stay of the injunction pending appeal. Courthouse News Service reports on the court's order. [Thanks to Scott Mange for the lead.]

Churches Challenge Minnesota COVID-19 Limits On Worship Services

Three churches and their pastors filed suit this week in a Minnesota federal district court challenging the state's COVID-19 limits on worship services.  The complaint (full text) in Cornerstone Church of Alexandria v. Walz, (D MN, filed 8/13/2020), alleges in part:

The plaintiffs’ religious liberties under the Free Exercise Clause of the First Amendment of the United States Constitution have been violated by Governor Walz’s Executive Orders 20-74 and 20-81. Although during a pandemic, the ordinary constitutional test of strict scrutiny may not apply to the Governor’s regulation of church activities (although it is still argued here in Count I), the government’s regulations must still be “capable of a reasoned application” as they would be for a non-public forum....

Thomas More Society issued a press release announcing the filing of the lawsuit.

Suit Challenges California COVID-19 Limits On Worship Services

 A church and its pastor filed suit this week in a California state trial court challenging on state constitutional grounds California's COVID-19 restrictions on worship services. The complaint (full text) in Grace Community Church of the Valley v. Newsom, (CA Super. Ct., filed 8/12/2020) reads in part:

13. It is time for California to recognize that disfavored religious minorities are not second-class citizens. It is time for California to explain how it can justify banning worship to prevent the spread of a disease (with an overall mortality rate of 0.02%) while it is fine for protestors to spread that disease like wildfire.... In a society hostile to religion, banning worship might be justified to prevent deaths. But how can California—the land of the Missions—justify unfairly imposing the burden of lowering coronavirus infection rates (not death rates) on worshippers?

14. The California State Constitution ... specifically protects the individual right to free exercise of religion. The State would not be justified to place restrictions disparately and unequally in the manner it has even against a regular business or gathering; however, Grace Community Church and every other house of worship in California enjoy heightened protection because our Founders recognized that the church has throughout world history been the target of secular kings and tyrants, not unlike Gavin Newsom....

Thomas More Society issued a press release announcing the filing of the lawsuit.

Kamala Harris Has Varied Religious Background

 Religion News Service reports on the broad exposure to various religious faiths experienced by Kamala Harris, the presumptive Democratic nominee for vice-president. Her mother was Hindu, but she grew up attending predominately Black churches. She now considers herself a Black Baptist. Her husband Douglas Emhoff is Jewish.

Indian Tribe Sues To Stop Trump's Border Wall

 A California Indian tribe filed suit this week in a California federal district court challenging the construction of President Trump's border wall.  The complaint (full text) in La Posta Band of Diegueno Mission Indians v. Trump, (SD CA, filed 8/11/2020), alleges in part:

Since time immemorial, the Kumeyaay people have lived in the area ... surrounding what is now the United States-Mexico border. Since the arrival of Europeans in the region, the Kumeyaay territory, culture, religion, and very existence have been under attack to make way for non-Indian settlement. In the most recent episode of Indigenous erasure, the President of the United States and his administration are desecrating Kumeyaay ancestral burial and sacred sites to make way for a wall along the United States’ southern border. The La Posta Band of the Diegueño Mission Indians ... bring this complaint to halt the construction of the border wall—a project being funded and constructed without authorization from Congress and which is violating the constitutional rights of the La Posta citizens—until the Defendants can guarantee adequate consultation and protection of La Posta religious practices and cultural heritage....

The Defendants are excavating and desecrating Kumeyaay burials without allowing La Posta access to properly treat the exhumed remains....

The border wall has made and will continue to make Kumeyaay sacred sites that lie within and south of the Project Area inaccessible....

Times of San Diego reports on the lawsuit. 

Challenge To Anti-Discrimination Exemptions For Foster Care Agencies Moves Ahead

 In Maddonna v. U.S. Department of Health and Human Services, (D SC, Aug. 10, 2020), a South Carolina federal district court allowed a prospective foster parent to challenge state and federal exemptions from anti-discrimination requirements that allowed a Catholic foster care agency to work only with families that share the agency's religious beliefs.  Even though the case had once been dismissed, without prejudice, for lack of standing (see prior posting), the court now found standing.  The court then refused to dismiss plaintiff's Establishment Clause claim, saying in part:

Plaintiff has plausibly alleged that Defendants conveyed a message endorsing religion by allowing state-licensed, government-funded CPAs to reject prospective foster parents based on religious criteria....

“[T]he core rationale underlying the Establishment Clause is preventing ‘a fusion of governmental and religious functions[.]’” ... According to the Complaint, the system which Defendants’ “accommodations” have created “does not by its terms require that [religiously affiliated CPAs’] power be used in a religiously neutral way.” ... Rather, under the Executive Order and the HHS Waiver, religiously-affiliated CPAs’ power to accept or reject prospective foster parents is completely “standardless, calling for no reasons, findings, or reasoned conclusions.”

Christian Post reports on the decision.

Suit Claims Mask Requirement At Church Services Violates Free Exercise Protections

 A suit filed last week in a Florida state trial court contends that a Florida county's COVID-19 face covering requirement violates, among other things, the free exercise rights of plaintiff, a pastor.  The complaint (full text) in Tillis v. Manatee County, (FL Cir. Ct., filed 8/2/2020) contends that the mask requirement violates the state constitution's free exercise clause, as well as the Florida Religious Freedom Restoration Act because it:

requires both clergy members like Plaintiff and churchgoers to wear masks during service or face government civil fines and punishment.... [T]he requirement to wear a mask ... infringes upon the free exercise of Plaintiff's religion by making it more difficult for him to preach and for members of the choir at his church to sing.

The Conversation reports on the lawsuit.

11th Circuit: Ecclesiastical Abstention Doctrine Covers Church Leadership Dispute

In Eglise Baptise Bethanie De Ft. Lauderdale, Inc. v. Seminole Tribe of Florida, (11th Cir., Aug. 19, 2020) the U.S. 11th Circuit Court of Appeals affirmed a Florida federal district court's dismissal of a suit filed to settle a dispute over church leadership between the church's board of directors and the widow of its deceased pastor. One faction enlisted tribal police to evict worshipers supporting the other faction during a worship service. The court said in part:

The plaintiffs claim that the district court erred in dismissing the claims against Auguste because their claim—rather than involving ecclesiastical disputes—is merely a property dispute. That framing ignores two threshold issues. Before reaching the plaintiffs’ § 248 claim, a court would need to determine whether Auguste was the rightful successor to the church’s leadership and, if she was, whether Auguste had the authority to exclude the plaintiffs from the church’s property. Answering these questions would require us to inquire into church rules, policies, and decision-making and questions of church governance are manifestly ecclesiastical.

Nigerian Court Sentences Musician To Death For Blasphemy

 BBC News reports:

A musician in Nigeria's northern state of Kano has been sentenced to death by hanging for blaspheming against the Prophet Muhammad.

An upper Sharia court in the Hausawa Filin Hockey area of the state said Yahaya Sharif-Aminu, 22, was guilty of committing blasphemy for a song he circulated via WhatsApp in March.

Mr Sharif-Aminu did not deny the charges.

Judge Khadi Aliyu Muhammad Kani said he could appeal against the verdict....

Only one of the death sentences passed by Nigeria's Sharia courts has been carried out since they were reintroduced in 1999.

8th Circuit Vacates Injunction Against Arkansas Abortion Regulations

 In Hopkins v. Jegley, (8th Cir., Aug. 7, 2020), the U.S. 8th Circuit Court of Appeals in a 7-page per curiam opinion vacated an Arkansas federal district court's preliminary injunction against four Arkansas statutory provisions restricting abortions. At issue were 2017 enactments: (1) the Arkansas Unborn Child Protection from Dismemberment Abortion Act; (2) the Sex Discrimination by Abortion Prohibition Act, (3) requirements regarding the disposition of fetal remains, and (4) a requirement to maintain forensic samples from abortions performed on a child. The court remanded the case for consideration in light of Chief Justice Roberts’s separate opinion in June Medical Services v. Russo. The court said in part:

According to Chief Justice Roberts, the appropriate inquiry under Casey is whether the law poses “a substantial obstacle” or “substantial burden, not whether benefits outweighed burdens.”...

Here, the district court—without the benefit of Chief Justice Roberts’s separate opinion in June Medical—applied the Whole Woman’s Health cost-benefit standard to the challenged laws....

In addition, the district court relied on Whole Woman’s Health’s “holding that the ‘statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court’s case law.’” ... Chief Justice Roberts, however, emphasized the “wide discretion” that courts must afford to legislatures in areas of medical uncertainty.

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