Student Senate President Who Was Removed For His Religious Views Gets Limited Relief

In Denton v. Thrasher, (ND FL, Oct. 8, 2020), a Florida federal district court held that Florida State University's Student Senate acted unconstitutionally when it removed Jack Denton as Student Senate president. (He remained a member of the Senate.)  Student Senate took the action after Denton's private chat room comments were publicly circulated.  The offending remarks were:

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....

I don’t mean to anger anyone – I know this is a very emotional topic. However, it is important to know what you’re supporting when you’re Catholic. If I stay silent while my brothers and sisters may be supporting an organization that promotes grave evils, I have sinned through my silence. I love you all, and I want us all to be aware of the truth. As far as it’s a religious issue or not, there isn’t an aspect of our lives that isn’t religious, because God wants our whole lives and everything we do to be oriented around him!

The court said in part:

Denton is not here to complain about insults or hurt feelings. His claim is that he lost his job—his student government position—because he chose to exercise his First Amendment rights.

The court however limited its relief to an order that Denton be paid for the six hours per week for the rest of the term that he would have served as Student Senate president. It refused to order that Denton be reinstated to his position since that could produce "tumult and chaos."  Inside Higher Ed reports on the decision.

Amy Coney Barrett's Scholarly Writings

Hearings began yesterday on the nomination of Amy Coney Barrett to the United States Supreme Court.  Here is a transcript of her opening statement to the Senate Judiciary Committee.  Before becoming a federal judge, Barrett wrote widely on issues of constitutional interpretation and the Supreme Court.  Here is a fairly comprehensive list of her scholarly writings (with links to the full text of most of them):

• Congressional Insiders and Outsiders, U.Chi. L. Rev. (forthcoming 2017).
• Originalism and Stare Decisis, 92 Notre Dame L. Rev. 1921 (2017).
• Congressional Originalism, 19 U. Penn. J. of Const. L. 1 (2017) (with John Copeland Nagle).
• Commencement Address, (2016).
• Statutory Interpretation in The Encyclopedia of American Governance, (2016).
• Federal Court Jurisdiction in The Encyclopedia of American Governance, (2016).
• Countering the Majoritarian Difficulty, 31 Const. Comm. 61 (2017).
• Suspension and Delegation,99 Cornell L. Rev. 251 (2014).
• Precedent and Jurisprudential Disagreement, 91 Texas L. Rev. 1710 (2013).
• Substantive Canons and Faithful Agency, 90 B.U. Law Rev. 109 (2010).
• Federal Jurisdiction in Encyclopedia of the Supreme Court of the United States. (2010).
• Introduction: Stare Decisis and Nonjudicial Actors, 83 Notre Dame Law Review 1147 (2008).
• Procedural Common Law, 94 Virginia L. Rev. 813-88 (2008).
• The Supervisory Power of the Supreme Court, 103 Colum. L. Rev. 324 (2006).
• Commencement Address, (2006).
• Statutory Stare Decisis in the Courts of Appeals, 73 Geo. Wash. L. Rev. 317 (2005).
• Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).
• Catholic Judges in Capital Cases, 81 Marquette L.Rev. 303 (1998) (with John H. Garvey).

Recent Articles of Interest

 From SSRN:

• Stephanie H. Barclay, An Economic Approach to Religious Exemptions, (Florida Law Review, Forthcoming).
• Haider Ala Hamoudi, Engagements and Entanglements: The Contemporary Waqf and the Fragility of Shi'i Quietism, (Journal of Law and Religion, Vol. 35, p. 2115, 2020).
• Hershey H. Friedman, A Talmudic Vade Mecum to Acquiring Worldly Wealth, (August 19, 2020).
• Zachary B. Pohlman, 'Churches' in a Time of Coronavirus,  (Canopy Forum, 2020).
• Josh Blackman, What Rights are “Essential”? The 1st, 2nd, and 14th Amendments in the Time of Pandemic, (Liberty & Law Center Research Paper No. 20-04 (2020).
• Henry You, Infinger Nick v The Hong Kong Housing Authority - A Remarkable Development of LGBTQ Rights in Hong Kong, (August 21, 2020).
• Debbie Kaminer & David Rosenberg, How the Conflict Between Anti-Boycott Legislation and the Expressive Rights of Business Endangers Civil Rights and Anti-Discrimination Laws, (July 28, 2020).
• Eleni Polymenopoulou, Human Rights in the Six Arab States of the Gulf Cooperation Council (‘GCC’): From Vision to Reality, (Cardozo Journal of International and Comparative Law, Forthcoming).

From SmartCILP:

• Limor Ezioni, Contemporary Aspects of Female Genital Mutilation Prohibitions in the United States, 28 American University Journal of Gender, Social Policy and the Law 39-62 (2019).
• Khaled A. Beydoun, Faith in Whiteness: Free Exercise of Religion as Racial Expression, 105 Iowa Law Review 1475-1536 (2020).

DC Restrictions On Outdoor Church Services Violate RFRA

 In Capitol Hill Baptist Church v. Bowser, (D DC, Oct. 9, 2020), a D.C. federal district court issued a preliminary injunction allowing plaintiff church to hold outdoor services, with masks and appropriate social distancing, beyond the 100-person maximum set out in the D.C. mayor's COVID-19 restrictions. The court concluded that current restrictions on the church's outdoor services violate RFRA.  The court said in part:

The District proposes that under its current restrictions the Church could “hold multiple services, host a drive-in service, or broadcast the service online or over the radio,” as other faith communities in the District have done.... But the District misses the point. It ignores the Church’s sincerely held (and undisputed) belief about the theological importance of gathering in person as a full congregation. The “substantial burden inquiry asks whether the government has substantially burdened religious exercise . . . not whether [the Church] is able to engage in other forms of religious exercise.”... The District may think that its proposed alternatives are sensible substitutes. And for many churches they may be. But “it is not for [the District] to say that [the Church’s] religious beliefs” about the need to meet together as one corporal body “are mistaken or insubstantial.”... It is for the Church, not the District or this Court, to define for itself the meaning of “not forsaking the assembling of ourselves together.”...

The court made clear that its order applied only to the church that was plaintiff in this case. 

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

Abuse Victims Win First Round In Santa Fe Archdiocese Reorganization Proceedings

 In In re Roman Catholic Church of the Archdiocese of Santa Fe, (NM Bankr., Oct. 9, 2020), a New Mexico federal bankruptcy court granted an unsecured creditors committee-- apparently representing primarily clergy sex abuse victims-- derivative standing to pursue claims that some $150 million in assets actually belong to the Archdiocese, not to individual parishes. The Archdiocese serves as creditor in possession during its Chapter 11 reorganization, and it has refused to pursue the assets. Responding to the Archdiocese's First Amendment defenses, the court said in part:

The Bankruptcy Code’s fraudulent transfer sections are neutral and of general applicability, so it may be difficult to challenge them as violating the Free Exercise Clause of the First Amendment....

It rejected a RFRA defense, holding that RFRA applies only when the government is a party to the litigation. Rejecting a religious autonomy defense, the court said in part:

A claim to recover an alleged fraudulent transfer does not appear to be the kind of intrachurch dispute that the religious autonomy doctrine typically protects from court interference.

The court concluded its opinion with a plea for settlement negotiations:

If one or more of Debtor’s and/or the parishes defenses has merit, the UCC’s claims will fail. If none has merit, the UCC will recover many millions of dollars for the estate. Either way, the proposed litigation will be very expensive and time-consuming. Unless settled, the proceedings may have to be completed by successors to the party representatives, the judge, and counsel, after years of motion practice, discovery, discovery disputes, trials, appeals, remands, and retrials. Millions of dollars would have been spent on attorney fees and costs that could have paid valid abuse claims.

More clarity about the rights of the parties and what is estate property could help the ongoing efforts to reach a global settlement in this case. For that reason, some litigation of the UCC’s proposed claims may be needed. There will be a point, however, that the cost of continued litigation likely will outweigh the benefit. If the proceedings are not settled before then, Debtor, the parishes, and the abuse victims will be the poorer for it.

Hypothetical Religious Objections On LGBTQ Issues Cannot Disqualify Foster Parents

In Blais v. Hunter, (ED WA, Oct. 8, 2020), a Washington federal district court held that the Washington Department of Children, Youth and Families cannot use its policy to protect LGBTQ+ foster children as the sole determining factor in rejecting a foster family that expresses sincere religious beliefs that would preclude them from supporting gender transition in hypothetical future situation.  Plaintiffs in the case were a Seventh Day Adventist family that wanted to care for their great-granddaughter who might be removed from her home. The court concluded that the Department’s policies “operate as a religious gerrymander and are thus not neutral as applied to the Blaises and others similarly situated.” [Thanks to Eugene Volokh via Religionlaw for the lead.]

Seminary May Expel Students For Entering Same-Sex Marriages

In Maxon v. Fuller Theological Seminary, (CD CA, Oct. 7, 2020), a California federal district court held that the Religious Organization Exemption in Title IX applies to a seminary controlled by its own board of directors rather than by an outside religious organization. Thus, while Title IX was interpreted by the court to include a ban on discrimination on the basis gender stereotypes, the exemption allowed it to expel two students because they had entered same-sex marriages. Washington Times reports on the decision.

Supreme Court Sends Case On Medical Abortion Access Back To District Court

In Food and Drug Administration v. American College of Obstetricians and Gynecologists, (Sup. Ct., Oct. 8, 2020), the U.S. Supreme Court decided to hold in abeyance pending further District Court review the FDA's motion to stay an injunction that had been issued against it.  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.) The Supreme Court said: 

The Government argues that, at a minimum, the injunction is overly broad in scope, given that it applies nationwide and for an indefinite duration regardless of the improving conditions in any individual State. Without indicating this Court’s views on the merits of the District Court’s order or injunction, a more comprehensive record would aid this Court’s review. The Court will therefore hold the Government’s application in abeyance to permit the District Court to promptly consider a motion by the Government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed. ...  The District Court should rule within 40 days of receiving the Government’s submission.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

In response to the pandemic, state and local officials have imposed unprecedented restrictions on personal liberty, including severe limitations on First Amendment rights. Officials have drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies. The free exercise of religion also has suffered previously unimaginable restraints, and this Court has stood by while that has occurred.

SCOTUSblog reports on the decision.

Another Religious Challenge To California's COVID-19 Orders

 In a suit filed late last month, a Catholic priest has challenged California Governor Gavin Newsom's COVID-19 emergency orders.  the 77-page complaint (full text) in Burfitt v. Newsom, (CA Super. Ct., filed 9/29/2020) charges that the Governor's orders violate various provisions of the California state constitution, including free exercise, equal protection, liberty of speech and equal protection.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Church Says Eminent Domain Proceeding Violates It Religious Freedom Rights

 In Duncanville, Texas, the city has filed a condemnation petition seeking to take land owned by the Canaan Baptist Church in order to build a new fire station.  The property, which currently has no buildings on it, was acquired by the church in 2002 with plans to eventually build church buildings on it. In the meantime it is used for various outdoor church events by the 125-member, largely African-American church.  On Wednesday the church filed a motion seeking dismissal of the city's eminent domain proceedings.  The motion (full text) in City of Duncanville, Texas v. Canaan Baptist Church, (TX County Ct., filed 10/7/2020) contends that the condemnation proceedings violate the Texas Religious Freedom Restoration Act and the federal RLUIPA. First Liberty issued a press release announcing the filing of the lawsuit.

Catholic and Jewish Organizations Sue New York Governor Over New COVID-19 Restrictions

On Tuesday of this week, New York's Governor Andrew Cuomo announced new restrictions in spots in which clusters of COVD-19 cases have broken out. Areas include parts of Brooklyn and Queens and parts of Broome, Orange and Rockland Counties. The restrictions target mass gatherings and houses of worship, as well as businesses and schools.  In response, two important religious entities-- one Catholic and one Jewish-- have filed separate suits challenging the new Order.

The complaint (full text) in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (ED NY, filed 10/8/2020) reads in part:

The governor now proposes to limit in-person attendance at all "Houses of Worship" to the lesser of 10 people or 25% of church capacity in certain designated geographical areas, and to the lesser of 25 people or 33% of church capacity in others. As applied to the Diocese, whose impacted churches overwhelmingly seat upwards of 500 to 1000 parishioners, the percentage caps ... are rendered wholly illusory, and thus the churches will be placed in the untenable position of limiting attendance at Sunday mass and other fundamental Catholic services such as baptisms, weddings and funerals, to just 10 worshippers in designated "red" zones or just 25 worshippers in designated "orange" zones. Meanwhile, all other essential businesses can remain open without any capacity limitations whatsoever....

ABC7 News reports on the lawsuit. 

The complaint (full text) in Agudath Israel of America v. Cuomo, (ED NY, filed 10/8/2020) alleges in part:

5. Defendant’s Executive Order and the restrictions it contains will disrupt the religious observance of tens of thousands of Orthodox Jews in New York State, depriving them of their religious worship and holiday observance. The Executive Order requires enforcement of its restrictions to begin on Friday, October 9, which is Hoshanah Rabbah, the first of these three holidays.

6. Defendant has imposed these onerous and discriminatory new restrictions despite the fact that even he concedes he has not enforced the existing restrictions on houses of worship that already impose capacity limits and health requirements. Plaintiffs have completely complied with these rules, and Defendant does not contend otherwise.

Courthouse News Service reports on the suit.

UPDATE: Temporary restraining orders were denied in both cases on Oct. 9. See Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 U.S. Dist. LEXIS 188459.

USCIRF Issues Fact Sheets On Rohingya Refugees and Ritual Slaughter Laws

The U.S. Commission on International Religious Freedom has issued two Factsheets of interest this week:

• Factsheet on Rohingya Refugees in Southeast Asia
  
• Factsheet on Ritual Slaughter Laws in Europe

South Carolina Supreme Court Invalidates Emergency School Aid Program

 In Adams v. McMaster, (SC Sup. Ct., Oct. 7, 2020), the South Carolina Supreme Court held that South Carolina Governor Henry McMaster's allocation of $32 million in federal emergency education funding to create one-time grants for students to attend private and religious K-12 schools violates the South Carolina Constitution.  The court emphasized that the federal funds awarded to South Carolina are received by the State Treasury and distributed through the Treasury directly to private schools.  The court concluded:

We hold the Governor's decision constitutes the use of public funds for the direct benefit of private educational institutions within the meaning of, and prohibited by, Article XI, Section 4 of the South Carolina Constitution.

Island Packet reports on the decision.

Egyptian Court Bans Pilgrimages To Rabbi's Grave

 Al-Monitor reports that on Sept. 26, Egypt's Supreme Administrative Court upheld a lower court ruling banning the annual celebration in Damatyuh village near the city of Damanhur in Beheira governorate of the birth of Rabbi Yaqoub bin Masoud, known as Abu Hasira. The paper reports:

The court, which is the highest administrative court for administrative appeals in Egypt, ordered removing the shrine in which ... Abu Hasira, is buried, from the list of Islamic and Coptic antiquities in Egypt. In addition, it rejected a request to transfer his remains to Israel, which was submitted by Tel Aviv through UNESCO in 2012.

The court based its refusal to transfer the rabbi's remains because Islam respects the divine religions and rejects the exhumation of graves, and because Palestine is an occupied land and legitimizing the Jewishness of the state must be avoided by keeping this shrine on Arab land.

The appeal was filed by the Egyptian government; the previous ruling thus became final and irrevocable.

Before 2011, hundreds of Jews from Morocco, France and Israel made an annual pilgrimage to the rabbi's grave.

New Jersey COVID Limits On Indoor Church Services Are Upheld

In Robinson v. Murphy, 2020 U.S. Dist. LEXIS 185070 ( NJ, Oct. 2, 2020), a New Jersey federal district court refused to issue a preliminary injunction in a suit challenging COVID-19 Orders of the governor of New Jersey. The Orders limit the permitted number of worshipers at indoor religious services and require masks at services. Rejecting free exercise challenges, the court said in part:

[T]he challenged measures are subject to rational basis review because they are generally applicable and neutral laws that burden secular and religious activity alike. The State's policies are designed to combat the spread of COVID-19 in New Jersey given the current understanding of the virus which the Court finds is undoubtedly a legitimate governmental interest....

Furthermore, ... the laws are not substantially underinclusive requiring the application of strict scrutiny, as the indoor gatherings restrictions contain similar exceptions for religious purposes and for secular purposes, indoor religious gatherings have higher maximum capacities than secular indoor gatherings, and, as Plaintiffs themselves acknowledge, there are both feasibility and religious purpose exceptions included in the mask requirements.

Plaintiffs, a priest and a rabbi, had also argued that the orders violate the Establishment Clause:

Plaintiffs assert that the orders violate the Establishment Clause because Defendants are attempting to dictate the precise manner in which Plaintiffs and their congregants worship. They further contend that "by mandating crude and medically useless face coverings," Defendants have made it difficult to say mass or teach the Jewish faith.... The Court finds that the indoor gatherings restrictions and mask requirements pass constitutional muster.

The court, in addition, rejected free speech, equal protection and due process challenges.

Dakota Access Pipeline Protesters Can Move Ahead On Free Speech, But Not Free Exercise, Claims

In Thunderhawk v. County of Morton, North Dakota, (D ND, Sept. 1, 2020), plaintiffs challenged on numerous constitutional grounds North Dakota's closure of Highway 1806 which was used by the Standing Rock Sioux Tribe and thousands of its supporters to access campsites set up to protest construction of the Dakota Access Pipeline. In a 101-page opinion (which has just been widely made available) the court allowed plaintiffs to move ahead with their claims that the closure prevented them from engaging in protected speech and amounted to a prior restraint on speech. The court however rejected plaintiffs' free exercise claims, saying in part:

While the Plaintiffs provided facts in the Amended Complaint to suggest the Defendants’ actions in closing the road may not meet strict or intermediate scrutiny for their free speech claims, they have failed to allege facts suggesting the road closure may not meet rational basis as it relates to their free exercise claim. Because the Plaintiffs have failed to meet this burden, and as a result of neither Smith exceptions applying in this case to heighten the standard to strict scrutiny, Claim II is dismissed.

The court also rejected a variety of other constitutional challenges including right to travel and commerce clause claims. Turtle Talk blog has links to all the pleadings in the case.

Transcript and Audio Are Available of Supreme Court Arguments In RFRA Damages Case

This morning the U.S. Supreme Court heard oral arguments in Tanzin v. Tanvir. (Transcript of oral arguments) (Audio of oral arguments.)  In the case, a 3-judge panel of the 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants. (See prior posting). The SCOTUSblog case page has links to the briefs of the parties, amicus briefs and other filings in the case.

UPDATE: Deseret News reports on the oral arguments.

Court Enjoins NY Ban On Adoption Agencies Discriminating Against Gay Or Unmarried Couples

In New Hope Family Services, Inc. v. Poole, (ND NY, Oct. 5, 2020), a New York federal district court, hearing a case on remand from the Second Circuit (see prior posting), issued a preliminary injunction against enforcement of a regulation of New York's Office of Children and Family Services. 18 NYCRR §421.3 bars discrimination based on sexual orientation or marital status in furnishing of adoption services. The regulation was challenged by a Christian adoption agency that refuses to place children with unmarried or same-sex couples.  The court said in part:

[T]he totality of the evidence indicates that section 421.3(d), as promulgated and enforced by OCFS, is not neutral and appears to be based on some hostility towards New Hope's religious beliefs. In light of the Second Circuit's all but explicit direction, the Court finds that the totality of the evidence weighs in favor of a finding of hostility. In finding hostility, the Court relies on a number of factors that the Circuit noted in its decision.....

The Court finds that by attempting to force New Hope to say that it is in a child's best interests to be placed with an unmarried or same sex couple, despite New Hope's sincere disagreement with that statement, OCFS is attempting to compel speech. Although OCFS argues that New Hope is not compelled to speak because there is an alternative, closure is surely a harsh alternative for New Hope and, as discussed below, it is not the most narrowly tailored means of advancing the state's compelling interests....

Washington Times reports on the decision.

Satanic Temple Sues Ad Agency For Refusing Abortion Billboards [UPDATED]

The Satanic Temple ("TST") announced last week that it has filed suit against Lamar Billboard Company for religious discrimination and breach of contract after the company refused to put up billboards promoting The Satanic Temple's "religious abortion ritual."  TST said in part:

Sincere performance of this ritual exempts members from complying with many state regulations, such as mandatory waiting periods and compulsory counseling, that are not medically necessary and violate TST's religious beliefs.

TST wanted to place billboards near eight crisis pregnancy centers in Arkansas and Louisiana. TST puzzlingly said:

TST claims that Lamar's actions violate the Accounting and Corporate Regulatory Authority's (ACRA's) nationally-applicable laws that prohibit religious discrimination.

ACRA appears to be an agency of the government of Singapore.

UPDATE: Here is the full text of the complaint in The Satanic Temple, Inc. v. Lamar Advertising of Louisiana, LLC, (AR Cir. Ct., filed 9/27/2020).  The complaint alleges, among other things, violation of the Arkansas Civil Rights Act, abbreviated ACRA. Whoever wrote TST's press release apparently Googled ACRA and came up with Accounting and Corporate Regulatory Authority. [Thanks to Eugene Volokh via Religionlaw for access to the complaint.]

Cert. Denied In Appeal By Kim Davis Who Refused To Issue Same-Sex Marriage Licenses

The U.S. Supreme Court today denied certiorari in Davis v. Ermold, the case involving former Kentucky county clerk Kim Davis who refused on religious grounds to issue marriage licenses to same-sex couples.  Justice Thomas, joined by Justice Alito, concurred in the denial of review, but issued a four page statement critical of the Court's same-sex marriage precedent. (Order List, scroll to page 55.) In the case, the U.S. 6th Circuit Court of Appeals held that Davis may be sued in her individual capacity and is not entitled to qualified immunity. (See prior posting). Justice Thomas wrote in part:

In Obergefell v. Hodges ... the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text. Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs.... The Court, however, bypassed that democratic process. Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often “decent and honorable,” ... the Court went on to suggest that those beliefs espoused a bigoted worldview....

The Hill reports on the case.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, A Few Grains of Incense: Law, Religion, and Politics from the Perspective of the "Christian" and "Pagan" Dispensations,  (Journal of Catholic Legal Studies, forthcoming).
• Nabeela Siddiqui, On Crossroads with Constitutional Morality: The (Un)tamed ERP Test, (August 16, 2020).
• Beatrice Jessie Hill, The Geography of Abortion Rights,  (Georgetown Law Journal, (forthcoming, 2021)).
• Shahbaz Ahmad Cheema, Distribution of Inheritance under Islamic Law: An Appraisal of Online Inheritance Calculators, (August 16, 2020).

From SmartCILP:

• Patricia M. Muhammad, The Trans-Atlantic Slave Trade: European Slaving Corporations, the Papacy and the Issue of Reparations, 26 Willamette Journal of International Law& Dispute Resolution 173-248 (2019).

Five Cases of Interest Already On Supreme Court's Docket As Term Opens

The U.S. Supreme Court's October Term opens today with five religious liberty-related cases already on the docket from grants of review last term. The cases are:

Tanzin v. Tanvir: Availability of money damages in suits under the Religious Freedom Restoration Act. The suit involves claims by three Muslims who allege that they were placed on the no-fly list as retaliation for their refusal to act as government informants. (See prior posting.) Links to pleadings in the case are at the SCOTUSblog case page. The case is set for argument on Oct. 6.

Fulton v. City of Philadelphia, Pennsylvania: In the case,  the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.) Links to pleadings in the case are at the SCOTUSblog case page. The case will be argued on Nov. 4.

Republic of Hungary v. Simon and Federal Republic of Germany v. Philipp: Whether claims under the Foreign Sovereign Immunities Act may be brought in these cases of taking of Jewish property during World War II.  (SCOTUS blog case pages: Simon,   Philipp. The cases will be argued Dec. 7.

Uzuegbunam v. Preczewski: Challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. (See prior posting.) (SCOTUSbog case page.) Argument date is not yet set.

The Court may announce additional grants of review later today.

9th Circuit Upholds California's COVID Restrictions On Religious Services

 In Harvest Rock Church, Inc. v. Newsom, (9th Cir., Oct. 1, 2020), the U.S. 9th Circuit Court of Appeals in a 2-1 decision refused to issue a preliminary injunction against Governor Gavin Newsom’s COVID-19 Orders that restrict in-person worship services. The majority said in part: 

The evidence that was before the district court does not support Harvest Rock’s arguments that the Orders accord comparable secular activity more favorable treatment than religious activity. The Orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters....

Harvest Rock also contends that the Governor failed to provide a rationale for the more lenient treatment of certain secular activities, such as shopping in a large store. However, the Governor offered the declaration of an expert, Dr. James Watt, in support of the claim that the risk of COVID-19 is elevated in indoor congregate activities, including in-person worship services.

Judge O'Scannlain dissented, saying in part:

There is no doubt that California’s COVID-19 scheme ... imposes direct and severe burdens on religious practice within the State. And where a State imposes such burdens through measures that are not “neutral and of general applicability,” its actions must survive strict scrutiny.... Because California’s COVID-19 regulations patently disfavor religious practice when compared to analogous secular activities, I believe that the church is quite likely indeed to succeed on the merits of its challenge to such regulations.

Los Angeles Times reports on the decision.

Two Catholic Dioceses File For Chapter 11 Bankruptcy Reorganzation

In the face of sex abuse lawsuits filed after states enacted legislation reviving previously time-barred claims, on Oct. 1 two more Catholic dioceses filed for bankruptcy reorganization under Chapter 11. 

The Diocese of Rockville Centre, New York (covering Long Island) issued a press release and a letter from Bishop John Barres. The letter said in part:

[I]n the year since the passage of the Child Victims Act, more than 200 lawsuits alleging sexual abuse have been filed against the Diocese of Rockville Centre. What became clear is that the Diocese could not continue to carry out its spiritual, charitable and educational missions while also having to shoulder the increasingly heavy burden of litigation expenses associated with these cases.

Filing for Chapter 11, we believe, is the only way for the Diocese to ensure a fair and equitable outcome for everyone involved.... 

During this period of restructuring, most Diocesan operations and ministries will continue without interruption.... 

Since the parishes and schools of the Diocese of Rockville Centre are separate legal entities, they are not included in this Chapter 11 filing. But it is also the case that after Chapter 11, the Diocese will have fewer financial resources to help struggling schools and parishes.

CNN reports on the filing, noting that this is the largest U.S. diocese to file for bankruptcy.

The Diocese of Camden, New Jersey issued a letter from Bishop Dennis Sullivan as well as an FAQ document and a summary of developments. The Bishop's letter reads in part:

The effects of the pandemic, which have curtailed our revenue and deeply impacted our parishioners and neighbors, were further compounded by the over $8 million we have paid out this year through the New Jersey Independent Victims Compensation Program to victims of clergy abuse, money which we have had to borrow. Additionally, the recent repeal of the statute of limitations has resulted in over fifty lawsuits being filed against the diocese involving long-ago claims of abuse. If it were just the pandemic, or just the costs of the Victims Compensation Program, we could likely weather the financial impact; however, the combination of these factors has made that impracticable. Because of this, today I announce that the Diocese of Camden is filing for reorganization under Chapter 11 of the United States Bankruptcy Code.

Bloomberg News reports on the filing.

Secretary Pompeo Speaks At Vatican Conference On Defending Religious Freedom

Earlier this week (Sept. 30), Secretary of State Mike Pompeo spoke at the U.S. Embassy to the Vatican at the "Holy See Symposium on Advancing and Defending Religious Freedom Through Diplomacy." His speech (full text and video) was titled Moral Witness and Religious Freedom. He said in part:

It was important for me to attend this year, because the mission of defending human dignity – and religious freedom in particular – remains at the core of American foreign policy.

That’s because it’s at the heart of the American experiment.  Our founders regarded religious freedom as an absolutely essential right of mankind and central to our founding....

But sadly, authoritarian regimes, terrorists, and even secularists, free societies are – in their different ways – trampling religious freedom all around the world.

Vast swathes of humanity live in countries where religious freedom is restricted, from places like Iran, to Nigeria, and to Cuba, and beyond....

Nowhere, however – nowhere is religious freedom under assault more than it is inside of China today.  That’s because, as with all communist regimes, the Chinese Communist Party deems itself the ultimate moral authority.

Alabama's Voter Registration Oath Is Challenged

Yesterday four Alabama residents filed suit challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." No secular alternative is available.  The complaint (full text) in Cragun v. Merrill, (ND AL, filed 10/01/2020) contends that the absence of a secular alternative violates the Establishment, Free Exercise, Free Speech and Equal Protection Clauses. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Denial of Church's Sewer Extension Application Did Not Violate RLUIPA or Constitution

 In Canaan Christian Church v. Montgomery County, Maryland, (D MD, Sept. 30, 2020), a Maryland federal district court, in a 54-page opinion, rejected challenges to the county's refusal to extend public sewer lines to a site on which plaintiffs wished to build a 2000-seat church. The court rejected plaintiff's "substantial burden" claim under RLUIPA, finding that the church had no reasonable expectation that the sewer extension would be approved.  The court also rejected RLUIPA "unreasonable limits" and "unequal terms" claims. It went on to reject equal protection and free exercise challenges.

No Fault Divorce Does Not Infringe Husband's Free Exercise Rights

 In Melki v. Melki,(MD App., Sept. 29, 2020), the Maryland Court of Special Appeals rejected a husband's claim that granting his wife a no-fault divorce violates his free exercise rights. In addition to rejecting jurisdictional and contract clause challenges, the court said in part:

Because the Orthodox faith does not permit divorces absent fault, Husband claims that the dissolution of the marriage on the grounds of a twelve-month separation would unconstitutionally force him to commit a mortal sin according to his religion.... Because a trial court granting a divorce merely dissolves a civil contract between the spouses, courts universally hold that no-fault divorce statutes do not infringe on the right to the free exercise of religion, even if a spouse’s religious beliefs prohibit no-fault divorces....

 Husband "still has [his] constitutional prerogative to believe that in the eyes of God, [he] and [his] estranged [wife] are ecclesiastically wedded as one...." ... In fact, it might well violate the Establishment Clause of the First Amendment to compel Wife to remain married to Husband because of Husband’s religious beliefs, for the court would then be preferring one spouse’s beliefs over the other spouse’s.

Court Temporarily Halts Enforcement of Tennessee's Mandated Abortion Reversal Disclosures

 In Planned Parenthood of  Tennessee and North Mississippi v. Slatery, (D TN, Sept. 29, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of a Tennessee law scheduled to take effect Oct. 1 which requires abortion providers to tell patients that medication abortions, once started, can be reversed. Plaintiffs claim that this violates their 1st Amendment rights by forcing them to provide patients with inaccurate information. In temporarily restraining enforcement of the law, the court said in part:

The Court is unable to assess fully the competing expert opinions as to whether the mandated message is “truthful and not misleading,” in the absence of the experts’ testimony, adduced through direct and cross examination. That assessment must await the preliminary injunction hearing....

Nevertheless, the Court does not need to await the hearing to determine that another aspect of the mandated message is “misleading.” The statute gives the Department of Health a period of up to 90 days in which to publish information, on its website and in printed materials, about the possibility of reversing the effects of a chemical abortion.... Section 218 requires abortion providers to tell patients that “information on and assistance with reversing the effects of a chemical abortion” is available on the Department of Health website, when in fact, such information and assistance may not be available.

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

Vermont's Town Tuition Program Challenged

In Vermont, school districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved private high school. Suit was filed this week in a Vermont federal district court challenging the exclusion of private religious schools from participating in this program, alleging that the exclusion violates free exercise, free speech and equal protection rights.  The complaint (full text) in A.H. v. French, (D VT, filed 9/28/2020) alleges in part:

Denying a public benefit based on the religious status of a child's school penalizes families who choose to exercise their faith by sending their children to religious schools. The school district's denial also discriminates against religious private schools because although the school board categorically refuses to fund tuition to religious schools, it regularly provides such funds to secular private schools. This discrimination violates the Free Exercise Clause's neutrality principle.

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

Preliminary Injunction Denied In Suit Targeting Colorado's COVID-19 Limits On Size of Religious Gatherings

On Monday, a challenge to Colorado's COVID-19 orders was filed.  In a 98-page complaint, a religious conference center and affiliated Bible college claim that Colorado's limitation on the number of persons who can attend in-person religious services violates its 1st and 14th Amendment rights. The complaint (full text) in Andrew Wommack Ministries, Inc. v. Polis, (D CO, filed 9/28/2020), alleges unconstitutional discrimination between religious gatherings and non-religious gatherings, as well as between the Ministries' religious and nonreligious gatherings in the same facilities, giving examples such as:

178. Under the Governor’s Orders, AWMI’s volunteers may provide nonreligious counseling, social services, and other necessities of life for women constituents of Life Network’s Colorado Springs Pregnancy Center and Choices Pregnancy Center may be administered in unlimited numbers, provided only that social distancing is satisfied.

179. But, if volunteers associated with AWMI and Charis Bible College students transition from providing these women with counseling, social services, food, clothing, and other necessities of life to providing them spiritual counseling, spiritual food in the form of communion, or otherwise transitions to a religious worship service with the same women in the same room, the Governor’s Orders would automatically subject them to criminal penalties for hosting an impermissible worship service if there is more than 175 women in the room.

The complaint says that speedy relief is required:

4. The Governor’s Orders interfere with and place a cloud of potential criminal and civil legal action over AWMI’s upcoming Pastor’s Conference scheduled to begin at 7:00 PM on October 5, 2020. In addition to outside pastors and ministers who are invited to the conference, attendance at the conference is a required part of the education program for all 652 students at Charis Bible College.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

On Tuesday, in a 7-page order (full text), a Colorado federal district judge denied a preliminary injunction, pointing out:

United States District Judge Raymond Moore recently rejected Plaintiff’s arguments in High Plains Harvest Church v. Polis.... Additionally, the Seventh Circuit recently rejected a church’s argument that similar public health laws unconstitutionally favored secular activity

Plaintiff immediately filed a Notice of Appeal.

Recent Virginia Anti-Discrimination Statutes Challenged

 Two lawsuits filed this week challenge two recently enacted Virginia statutes-- SB 868 prohibiting discrimination in public accommodations and employment, and HB 1429 that prohibits discrimination against transgender individuals in health insurance policies.

The complaint (full text) in Calvary Road Baptist Church v. Herring, (VA Cir. Ct., filed 9/28/2020) was filed by churches, Christian schools and pregnancy centers and alleges that the laws require plaintiffs to hire employees, provide insurance coverage and offer services that violate their religious beliefs on marriage, sexuality and gender.

The complaint (full text) in Updegrove v. Herring, (ED VA, filed 9/28/2020) was filed by a photographer who will "not provide wedding photography that celebrates any marriage not between one man and one woman, such as same-sex, polygamous, or open engagements or marriages, because [he] believes that God created marriage to be an exclusive union between one man and one woman."

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

Recent Articles of Interest

From SSRN:

• Yuval Shany, The Road Taken: ICCPR and discriminatory restrictions on religious freedom, (Harvard Human Rights Journal (forthcoming in 2021)).
• Anthony Aladekomo, Analysis of Intersection between Law and Religion, (July 13, 2020).
• Audra Savage, The Religion of Race: The Supreme Court as Priests of Racial Politics, (Utah Law Review, Forthcoming).
• Christopher C. Lund, Reconsidering Thornton v. Caldor,  (Washington University Law Review, Vol. 97, p. 1687, 2020 (symposium)).
• Hiroshi Fukurai, The Decoupling of the Nation and the State: Constitutionalizing Transnational Nationhood, Cross-Border Connectivity, Diaspora, and 'National' Identity-Affiliation in Asia and Beyond, (Asian-Pacific Law & Policy Journal, Forthcoming).
• Kareem Olatoye &Abubakri Olakulehin Yekini, Islamic Law in Southern Nigerian Courts: Constitutional and Conflict of Laws Perspectives, ((2019) 6 Benin Journal of Public Law).
• Steven Semeraro, We’re All Originalists Now . . . Or Are We?: Bostock’s Misperceived Quest to Distinguish Title VII’s Meaning From the Public’s Expectations, (Hofstra Law Review, Forthcoming).
• Justin Driver, Freedom of Expression within the Schoolhouse Gate, (Arkansas Law Review, Vol. 73, No. 1, 2020).
• Elyssa Spitzer, Pregnancy's Risks and the Health Exception in Abortion Jurisprudence, (Georgetown Journal of Gender and the Law, Forthcoming).
• Ediberto Roman & Ernesto Sagás, Fear and Loathing in Trump's America: The Consequences of Inspiring Hate and Violence, (Florida International University Legal Studies Research Paper No. 20-20 (2020).
• Jeffrey A. Redding, Review of Damian A. Gonzalez Salzberg, Sexuality and Transsexuality Under the European Convention on Human Rights: A Queer Reading of Human Rights Law, (83 Modern Law Review 702-07 (2020)).

From SmartCILP:

• Xavier Bothwell & Anthony Peirson, International Standards for Protection of Religious Freedom, 23 Annual Survey of International & Comparative Law 49-78 (2018).

Parents' Suit Against Christian High School Dismissed On Ecclesiastical Abstention Grounds

 In In re Prince of Peace School, (TX App., Sept. 23, 2020), a Texas state appellate court dismissed on ecclesiastical abstention grounds a suit by parents whose children were expelled from a Lutheran high school after the parents accused school personnel of harassing and bullying their children in connection with disciplinary issues. The court said in part:

Parents’ claims are premised on allegations that Prince of Peace failed to hire qualified staff and appropriately supervise its staff’s interactions with Students, including by failing to report suspected abuse of Students by its staff. Defense of these claims rests on Prince of Peace’s internal and religiously-informed policies and code of conduct. Judicial resolution of the claims would thus require impermissible intrusion in Prince of Peace’s management of these matters.

Trump Sends Message To "The Return"

 As reported by CBN News, thousands of Christians gathered on the National Mall today for The Return: National and Global Day of Prayer and Repentance.  The event was organized by Messianic Jewish pastor Jonathan Cahn and featured numerous Christian speakers, including Anne Graham Lotz, daughter of evangelist Billy Graham. (CBN News). President Trump sent a written message (full text) to the event, which read in part:

On this inaugural National Day of Prayer and Return, the First Lady and I join millions of Christians here in the United States and around the world in prayer, as we turn our hearts to our Lord and Savior....

The trials and tribulations the American people have faced over the past several months have been great.  Yet, as we have seen time and again, the resolve of our citizenry—fortified by our faith in God—has guided us through these hardships and helped to unite us as one Nation under God.

11th Circuit Grants En Banc Review In Case of Religious Statement By Juror

As reported by Florida News Service, yesterday the U.S. 11th Circuit Court of Appeals granted en banc review (full text of order) in United States v. Corrine Brown. In the case, a 3-judge panel, in a 2-1 decision, affirmed the trial court's dismissal of a juror in the fraud case of former Florida representative Corrine Brown. At issue was a statement made by one of the jurors during deliberations that "A Higher Being told me Corrine Brown was Not Guilty on all charges." (See prior posting.)

EEOC Sues On Behalf of Seventh Day Adventist

 The EEOC announced yesterday that it has filed suit in a Texas federal district court against Quest Diagnostics for refusing to accommodate the religious beliefs of a long-time employee. The EEOC said in part:

[T]he employee, a phlebotomist, is a practicing Seventh-day Adventist who began working for Quest Diagnostics in 2008. The phlebotomist’s religious beliefs prevent her from working on her Sabbath from sundown on Friday to sundown on Saturday. Quest honored her request for religious accommodation not to work on her Sabbath for the first 10 years of her employment. But in her 11th year with the company, Quest told her it would no longer accommodate her. After the revocation of her accommodation, she was forced to call “out” on each Saturday shift she was scheduled to work until she was ultimately fired by Quest.

Trump and Barr Speak At National Catholic Prayer Breakfast

Yesterday both President Trump (in a pre-recorded address-- full text) and Attorney General William Barr spoke at the National Catholic Prayer Breakfast, held online this year (video of entire breakfast). In his remarks, President Trump said in part:

Today I am announcing that I will be signing the Born Alive Executive Order to ensure that all precious babies born alive, no matter their circumstances, receive the medical care that they deserve. This is our sacrosanct moral duty. We are also increasing federal funding for the neonatal research to ensure that every child has the very best chance to thrive and to grow.

Attorney General Barr was presented the Christifideles Laici Award. In his acceptance speech (full text), he said in part:

That crucial link between religion and liberty, so well understood at the Founding, is all too often forgotten today.  In American public discourse, perhaps no concept is more misunderstood than the notion of “separation of church and state.”  Militant secularists have long seized on that slogan as a facile justification for attempting to drive religion from the public square and to exclude religious people from bringing a religious perspective to bear on conversations about the common good.

Yet as events like this one remind us, separation of church and state does not mean, and never did mean, separation of religion and civics... 

Unfortunately, in the last half century, that foundation of our free society has increasingly been under siege.  Traditional morality has eroded, and secularists have often succeeded not only in eliminating religion from schools and the public square, but in replacing it with new orthodoxies that are actively hostile to religion.  The consequences of this hollowing out of religion have been predictably dire....

Wherever we are in life, it is never too late to work in the Lord’s vineyard.  Our spiritual renewal, and the renewal of our national character, depend on it.

Irish Court Focuses On Importance of Witness Oath

 N.D. (Albania) v. International Protection Appeals Tribunal, (High Ct. Ireland, Sept. 22, 2020), was a suit brought by an Albanian woman who is challenging her order of deportation from Ireland. The suit seeks review of a decision of Ireland's International Protection Appeals Tribunal. The High Court dismissed the challenge on procedural grounds, while, however, also dealing with petitioners' claim that the Appels Tribunal decision was invalid because no oath was administered to her in the proceeding. The court said in part:

[W]hile the ongoing secularisation of society makes oaths, with their emphasis on religious beliefs, look like a pre-Enlightenment anachronism and an embarrassment, the unfortunate reality is that the oath still has a powerful role in bringing out the truth. There are people who are relatively untroubled about the theoretical civil and criminal consequences of lies to a court or tribunal, but who nonetheless hesitate if asked to call down their deity as a witness to such lies. The rational, bureaucratic, mind fails to appreciate that merely stiffening the criminal penalties for perjury has no effect whatever on that viewpoint.

Irish Legal News Reports on the decision.

Church Challenges D.C.'s COVID-19 Orders

The first suit by a church challenging the District of Columbia's COVID-19 Orders was filed last week by an 850-member evangelical congregation.  The D.C. Orders limit the number of persons who can gather for religious services. The complaint (full text) in Capitol Hill Baptist Church v. Bowser, (D DC, filed 9/22/2020), alleges in part:

For nearly 2,000 years, Christians have gathered each Sunday throughout the year in observance of Christ’s resurrection from the dead on the first day of the week, and the physical gathering of the church is central to that celebration. Indeed, the Greek word translated as “church” in our English versions of the Christian scriptures is “ekklesia,” which literally means “assembly.”... 

As with other communities of Christian faith around the country, CHBC believes that a central part of following Christ is worshipping together in the same physical space.

The suit alleges violations of the 1st Amendment, the 5th Amendment and RFRA. Washington Post reports on the lawsuit.

8th Circuit Hears Oral Arguments On Qualified Immunity In Suit By Christian Student Group

 The U.S. 8sth Circuit Court of Appeals yesterday heard oral arguments in Business Leaders in Christ v. University of Iowa. (Audio of full oral arguments.) In the case, an Iowa federal district court granted a permanent injunction to a Christian student group that was denied Registered Student Organization status. The denial was based on the University's Human Rights Policy that prohibits discrimination, among other things, on the basis of sexual orientation. The court concluded that this violated plaintiff's free expression rights. However the court held that individual defendants in the case had qualified immunity in an action for damages against them because "the Court cannot say the constitutional issues were established 'beyond debate.'." (See prior related posting.)

Israel's High Court Says Disciplinary Panel Required For Municipal Rabbi's Comments

 A 3-judge panel of Israel's High Court of Justice ruled yesterday that the country's Chief Rabbinate must convene a disciplinary panel to try Safed's Chief Rabbi Shmuel Eliyahu. Jerusalem Post and Haaretz report on the decision. At issue are a number of statements by Eliyahu critical of Arabs and of the LGBTQ community. Also at issue are political statements by Eliyahu. The judges each wrote about the balance between free speech and limits on what a state-funded municipal rabbi may say. Now, according to Jerusalem Post:

Justice Minister Avi Nissenkorn of the Blue and White Party now needs to request that Chief Rabbi Yitzhak Yosef form a disciplinary panel for Eliyahu.

Yosef needs to form that panel, consisting of a rabbinical court judge or emeritus judge and two municipal chief rabbis, within 30 days. The panel can record a note in Eliyahu’s file, issue him with a warning, reprimand him or dismiss him from his position.

Religion, Law and Justice Ruth Bader Ginsburg-- A Tribute

Justice Ruth Bader Ginsburg's body will lie in repose at the Supreme Court on Wednesday and Thursday of this week (Supreme Court press release), and then will lie in state on Friday at the U.S. Capitol. (NBC News). The Supreme Court courtroom has been draped in black in accordance with Supreme Court custom. According to the Supreme Court's press release announcing her death, a private burial service will take place at Arlington National Cemetery. Here are the statements of other Supreme Court justices on Justice Ginsburg's death.  Justice Breyer began his statement: "I heard of Ruth’s death while I was reciting the Mourner’s Kaddish at the Rosh Hashanah service." Interesting insights into Justice Ginsburg's life are found in an RNS article titled Ruth Bader Ginsburg Was Shaped by Her Minority Faith.

During her 27 years on the Court, Justice Ginsburg authored a number of opinions on church-state and religious liberty issues, including:

• Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. ___ (2020)- (dissenting opinion).
• Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020)- (dissenting opinion).
• American Legion v. American Humanist Association, 588 U.S. ___ (2019)- (dissenting opinion).
• Fort Bend County v. Davis, 587 U.S. ___ (2019)- (opinion of the Court).
• Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. __ (2018)- (dissenting opinion).
• Holt v. Hobbs, 574 U.S. 352 (2015)- (concurring opinion).
• Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)- (dissenting opinion).
• Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U.S. 661 (2010)- (opinion of the Court).
• Cutter v. Wilkinson, 544 U.S. 709 (2005)- (opinion of the Court).
• Agostini v. Felton, 521 U.S. 203 (1997)- (dissenting opinion).
• Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995)- (dissenting opinion).

An interesting liturgical tribute to Justice Ginsburg was developed by Rabbi Marc Katz and Cantor Meredith Greenberg of Temple Ner Tamid, Bloomfield, NJ.

Recent Articles of Interest

 From SSRN:

• Michael Conklin, Andrew Koppelman's Proposal: A Lose-Lose Solution for Religious Liberty and Gay Rights (August 2020).
• Nelson Tebbe & Micah Schwartzman, Re-upping Appeasement: Religious Freedom and Judicial Politics in the 2019 Term, Virginia Public Law and Legal Theory Research Paper No. 2020-68 (2020)).
• Netta Barak Corren, Taking Conflicting Rights Seriously,  (Villanova Law Review, Vol. 65, No. 2, 2020).
• John Ip, The Travel Ban, Judicial Deference, and the Legacy of Korematsu, ((2020) 63 Howard Law Journal 153).
• Leonore Carpenter & Ellie Margolis, One Sequin at a Time: Lessons on State Constitutions and Incremental Change from the Campaign for Marriage Equality, (75 N.Y.U. Ann. Surv. Am. L. 255 (2020)).
• Michael J. Higdon, (In)Formal Marriage Equality, (July 19, 2020).
• Cynthia Conti-Cook, Surveying the Digital Abortion Diary: A Preview of How Anti-Abortion Prosecutors Will Weaponize Commonly-Used Digital Devices As Criminal Evidence Against Pregnant People and Abortion Providers in a Post-Roe America, (University of Baltimore Law Review, Forthcoming).
• Alyssa Bryant & Ezra Young, Transgender Politics: The Civil Rights of Transgender Persons, (Transgender and Gender Diverse Persons: A Handbook for Service Providers, Educators, and Families (Routledge 2019)).
• Ezra Young, Demarginalizing Trans Rights, (Deploying Intersectionality: Legal, Intellectual, and Activist Interventions (Kimberlé Crenshaw et al. eds., New Press 2021, Forthcoming).
• Eza Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee  Stephens,  (California Law Review Online, 2020).

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

• Ronli Sifris, Tania Penovic & Caroline Henckels, Advancing Reproductive Rights through Legal Reform: The Example of Abortion Clinic Safe Access Zones, (University of New South Wales Law Journal, Vol. 43, No. 3, 2020).
• Kriti Aeron, Triple Talaq – a Battle towards Gender Justice with Reference to Shayara Bano, (March 5, 2019).
• Taiyba Khan, The Citizenship Amendment Act, 2019: A Religion Based Pathway to Indian Citizenship, (April 21, 2020).
• Peter Ottuh & Akpotor Eboh, A Philosophical Assessment of Tithing as a Tool for Tax Avoidance and Evasion in Nigeria, (August 5, 2020).
• Patrick Quirk, Protecting Religious Freedom and Conscience: What Australia Might Learn from Germany, (Fordham International Law Journal, Vol. 43, No. 163, 2019).
• Harsh Mahaseth, The Non-enforcement of Singapore’s Anti-gay Law Is Not a Good ‘Compromise’, (Economic and Political Weekly, Vol. 55, Issue No. 13, 28 Mar, 2020).

From elsewhere:

• Journal of Law & Religion, Vol. 35, Issue 2 (Aug. 2020).

EEOC Sues Over Failure To Accommodate Seventh Day Adventist

The EEOC announced this week that it has filed a Title VII lawsuit against Texas-based Frito-Lay, Inc. for failing to accommodate the religious needs of a Seventh Day Adventist employee working in Florida. The Commission explained:

[A] West Palm Beach Frito-Lay warehouse employee applied for and received a promotion to route sales representative. The employee completed approximately five weeks of training without having to train on Saturdays. However, despite learning he could not work on Saturdays be­cause of his Seventh-day Adventist religious beliefs, Frito-Lay sched­uled him to train on Saturdays and terminated him after he failed to report to training on two consecutive Saturdays.

President Issues Rosh Hashanah Message

 Today the White House released a Presidential Message on Rosh Hashanah, 2020, which begins this evening. It reads in part:

The First Lady and I wish our Jewish brothers and sisters Shana Tova and hope the millions observing this sacred day in America and around the world have a blessed start to the High Holy Days....

This year’s High Holy Days come with a sense of optimism for the people of Israel, as my Administration continues to make great strides in securing a more stable, prosperous, and peaceful Middle East region...

Ohio Law Bans COVID Orders That Close Houses of Worship

Ohio Governor Mike DeWine yesterday signed into law HB272 (full text) which prohibits any public official from issuing an order to close all places of worship in the state or in a geographic region of the state. The bill responds to actions in other states closing churches to prevent the spread of COVID-19.  AP reports on the Governor's action.

EEOC Sues Over Health Care Company's Refusal To Accommodate Modest Dress Beliefs

The EEOC announced that it filed a religious discrimination suit Wednesday in a Texas federal district court against Wellpath, LLC, a provider of health care in correctional facilities. Describing the suit, the EEOC said in part:

[A] nurse who is a practicing Apostolic Pentecostal Christian was hired by Wellpath to work in the GEO Central Texas Correctional Facility.... Before reporting to work, the nurse told a Wellpath human resources employee that her religious beliefs require her to dress modestly and to wear a scrub skirt instead of scrub pants while at work. In response, Wellpath denied the request for her religion-based accommodation and rescinded the nurse’s job offer.

Consent Decree Allows Construction of Chabad House

 A consent decree was entered this week in United States v. Borough of  Woodcliff Lake, (D NJ, Sept. 15, 2020), ordering the Borough to grant zoning variances that will permit construction of a Chabad synagogue. The decree, citing RLUIPA, orders zoning approvals in accordance with a site plan approved in the settlement of a parallel private action. The consent decree also contains provisions to assure future compliance with RLUIPA.  NJ.com reports on the consent decree. [Thanks to Steven H. Sholk for the lead.]

California Christian School Must Abide By COVID-19 Restrictions

 In County of Fresno v. Immanuel Schools, (CA Super. Ct., Sept. 15, 2020), a California state trial court judge issued a preliminary injunction ordering a 600-student Christian school near Fresno, CA to cease holding in-person classes as required by state and local COVID-19 orders. The court said in part:

United States Supreme Court Chief Justice John Roberts has observed in a recent consequential concurring opinion that “[t]he precise question of when restrictions on particular’social activities should be lifted during the pandemic is a dynamic and fact-intensive matter subject to reasonable disagreement. Our Constitution principally entrusts ‘[t]he safety and the health of the people’ to the politically accountable officials of the States ‘to guard and protect.’ When those officials ‘undertake[] to act in areas fraught with medical and scientific uncertainties,’ their latitude ’must be especially broad.’” (South Bay United Pentacostal Church V. Newsom (2020)....

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

Mask-In-School Requirement Challenged On Free Exercise Grounds

Suit was filed last week in an Ohio state trial court challenging as too narrow the religious exemption from Ohio's COVID-19 mask requirement in schools. The complaint (full text) in Miller v. Himes, (Putnam Cty. Com Pl., filed Sept. __, 2020), contends that the exemption for students "when an established sincerely held religious requirement exists which does not permit a facial covering" violates their free exercise rights. A school district denied an exemption to one of the plaintiffs even though she had a sincerely held religious belief  opposing masks. The district took the position that a belief is different from a religious requirement.  The suit also challenges the school mask requirement on various other grounds, including compelled speech and parental rights claims. Cincinnati Enquirer reports on the lawsuit.

EEOC Sues On Behalf of Employees Who Refuse To Wear Company Aprons That Contain Rainbow Emblem

The EEOC announced yesterday that it has filed suit against a Conway, Arkansas Kroger store charging that it violated Title VII when it disciplined and then discharged two women employees who refused to wear Kroger aprons that display a rainbow-colored heart emblem.  The women believe that the apron endorses LGBTQ values and that wearing it violates their religious beliefs. Kroger refused the women's offers to wear other aprons or to cover the emblem.

Consent Decree Ends Religious Practices In Tennessee School District

Earlier this week, a Tennessee federal district court issued a consent decree in Butler v. Smith County Board of Education, (MD TN, Sept. 14, 2020), enjoining various religious practices in the Smith County schools. The Consent Decree and Order provides in part:

Complaint alleged that the Board has a custom, policy, and practice of violating the Establishment Clause by, among other actions, incorporating official prayer into school events; proselytizing students; and subjecting students to religious iconography via displays in classrooms, hallways, and other locations....

School Officials are enjoined from promoting, advancing, endorsing, participating in, or causing Prayers during or in conjunction with School Events for any school within the School District....

School Officials are enjoined from planning, organizing, financing, promoting, or otherwise sponsoring in whole or in part a Religious Service....

Defendants are enjoined from permitting School Officials at any school within the School District to promote their personal religious beliefs to students in class or during or in conjunction with a School Event....

School Officials are enjoined from taking retaliatory action against Plaintiffs or any member of their family for bringing this lawsuit or otherwise objecting to unconstitutional practices.

WZTV reports on the case.

DoD Issues Revised Policy On Religious Liberty In Military Services

On Sept. 1, the Department of Defense issued a revised version of DoD Instruction 1300.17, Religious Liberty in the Military Services. The revised Instruction begins by setting out the purpose of the document:

• Establishes DoD policy in furtherance of the Free Exercise Clause ... recognizing that Service members have the right to observe the tenets of their religion, or to observe no religion at all.

• Establishes policy, assigns responsibilities, and provides procedures for the accommodation of religious practices of Service members.

• Establishes DoD policy on the accommodation of individual expressions of sincerely held beliefs (conscience, moral principles, or religious beliefs), which do not have an adverse impact on military readiness, unit cohesion, good order and discipline, or health and safety.

• Establishes DoD policy providing that an expression of sincerely held beliefs (conscience, moral principles, or religious beliefs) may not, in so far as practicable, be used as the basis of any adverse personnel action, discrimination, or denial of promotion, schooling, training, or assignment.

• Implements requirements in ... “The Religious Freedom Restoration Act” ... and other laws applicable to the accommodation of religious practices for DoD to provide, in accordance with the RFRA, that DoD Components will normally accommodate practices of a Service member based on a sincerely held religious belief.

• Requires DoD Components to oversee the development and provision of education and training on the policies and procedures pertaining to the accommodation of religious practices of Service members to commanders, judge advocates, chaplains, recruiters, and other personnel....

The new Instruction replaces a version adopted in 2014. (See prior posting.)

Report Contends UAE-Bahrain-Israel Deal Could Change Status Quo On Temple Mount

Relying on a Report from the NGO Terrestrial Jerusalem, Al Jazeeera says that a clause in the UAE-Bahrain normalization agreements with Israel could lead to a change in status of the Temple Mount/ Al-Aqsa compound. Under the current status quo arrangements, only Muslims can pray on the Temple Mount/ Al-Aqsa compound.  President Trump's Middle East Peace Plan called for the Temple Mount to be open to worshipers of all faiths. However a later clarification by U.S. Ambassador to Israel David Friedman  said: "The status quo, in the manner that it is observed today, will continue absent an agreement to the contrary." Recent statements by the UAE and Bahrain are now being seen as signaling a breach of the status quo arrangement.

Donald Trump's Peace Plan carefully referred to the Temple Mount as "Temple Mount/Haram al-Sharif."  The August 13 Joint Statement by the UAE, Israel and the United States as well as the September 11 Joint Statement by Bahrain, Israel and the U.S. include the following statement which refers only to Al Aqsa Mosque:

As set forth in the Vision for Peace, all Muslims who come in peace may visit and pray at the Al Aqsa Mosque, and Jerusalem’s other holy sites should remain open for peaceful worshippers of all faiths.

According to the Terrestrial Jerusalem Report:

Israel defines Al Aqsa as the structure of the mosque, as does the wording of the Statement, whereas Muslims define Al Aqsa as the entire esplanade of Haram al Sharif/the Temple Mount. Consequently, according to Israel (and apparently to the United States), anything on the Mount that is not the structure of the mosque is defined as "one of Jerusalem's other holy sites", and open to prayer by all – including Jews. Accordingly, Jews may now be permitted to pray on the Temple Mount, just not in the mosque....

Both the Israeli Prime Minister and the US negotiating team fully understand the significance of every word and every nuance relating to Jerusalem in general, and to the Temple Mount/Haram Al Sharif in particular. Consequently, this choice of terminology is neither random nor a misstep, and cannot seen as anything but an intentional, albeit surreptitious attempt to leave the door wide open to Jewish prayer on the Temple Mount, thereby radically changing the status quo.

Recent Articles of Interest

 From SSRN:

• Stephanie H. Barclay & Michalyn Steele, Rethinking Protections for Indigenous Sacred Sites, (134 Harvard Law Review (2021 Forthcoming)).
• Frederick Mark Gedicks, Christian Dignity and the Overlapping Consensus, (Brigham Young University Law Review, Forthcoming).
• George P. Smith, God, Caesar, and Darwin: Parameters and Perimeters of The Town Hall, (2020).
• James May & Erin Daly, Why Dignity Rights Matter, (19 European Human Rights L. Rev. 129 (2019)).
• Samuel D. Brunson, Addressing Hate: Georgia, the IRS, and the Ku Klux Klan, (July 31, 2020).
• Tanner Bean & Robin Fretwell Wilson, The Administrative State as a New Front in the Culture War: Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, (2019-2020 Cato Supreme Court Review (2020)).
• Edana Richardson, The UAE and Responsible Finance – Can Responsible Finance Ṣukūk Help the UAE in Fulfilling Its Sustainability Ambitions?, (Arab Law Quarterly (2021), Forthcoming).
• Sabbir Ahmad Sibli, Cleanliness in Islam: Exploring Through COVID- 19 Pandemic Precautions and Concerns (September 1, 2020).

From SmartCILP:

• Gene Schaerr & Michael Worley, The "Third Party Harm Rule": Law Or Wishful Thinking?, 17 Georgetown Journal of Law & Public Policy 629-652 (2019).
• Virginia L. Brown, The "Principal Purpose" Driven Life: How Hospitals Should Apply ERISA's Church Plan Exemption after Advocate v. Stapleton, 22 Journal of Health Care Law & Policy 223-244 (2019).

EU Court of Justice Advocate General Says Ban On Ritual Slaughter Is Invalid

The Court of Justice of the European Union last week released an Advocate General's opinion concluding that a decree of Belgium's Flemish region effectively banning kosher and Halal slaughter violates European Union law.  In Centraal Israëlitisch Consistorie van België and Others, (Sept. 10, 2020), Belgium's Constitutional Court requested a preliminary ruling on whether the Flemish region can require stunning of animals prior to slaughter.  The Advocate General concluded that the questions referred to the Court of Justice be answered as follows:

Point (c) of the first subparagraph of Article  26(2) of Council Regulation (EC) No  1099/2009 of 24 September 2009 on the protection of animals at the time of killing, read together with Article 4(1) and 4(4) thereof, and having regard to Article 10 of the Charter of Fundamental Rights of the European Union and Article 13 TFEU, must be interpreted as meaning that Member States are not permitted to adopt rules which provide, on the one hand, for a prohibition of the slaughter of animals without stunning that also applies to the slaughter carried out in the context of a religious rite and, on the other hand, for an alternative stunning procedure for the slaughter carried out in the context of a religious rite, based on reversible stunning and on condition that the stunning should not result in the death of the animal.

It had been argued that it should be at least permitted to require stunning that is reversible just prior to slaughter.  The Advocate General rejected this claim, saying in part:

There has also been some debate before the Court as to whether the prior reversible stunning which does not lead to the death of an animal or post-cut stunning of vertebrates satisfies the particular methods of slaughter prescribed by religious rites of both the Muslim and Jewish faiths. In that regard, it would seem that there are divergent views on the matter within both faiths. As I pointed out in my Opinion in Case C-243/19 A. v. Veselibas Ministrija, a secular court cannot choose in relation to the matters of religious orthodoxy:

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

Religious Education Companies Face No Threat Under Indiana Cities' Anti-Discrimination Law

 In Indiana Family Institute, Inc. v. City of Carmel, (IN App., Sept. 10, 2020), an Indiana state appellate court dismissed a suit brought by two companies offering religion-based education programs against four Indiana cities. Plaintiffs claim that their exclusion of same-sex married couples from their events would subject them to various penalties under the cities' non-discrimination ordinances, and that protections in Indiana's RFRA are not broad enough to cover them. The court however found that the companies face no threat of injury, saying in part:

The Companies do not require event attendees to share the same religious beliefs, and the Companies’ own designated evidence demonstrates that they have permitted “many gay people” to attend their programs....

Although the Companies claim that their rights to hold events in the Cites are chilled because of the ordinances’ failure to exempt their activities from enforcement, none of the Companies have been the subject of a complaint or investigation; nor have they been threatened with sanctions or penalties.... 

[T]he Companies have failed to show how the ordinances subjected them to an imminent threat of harm or that they faced a credible threat of prosecution.