Suit Filed Over School's Ban On Religious Messages On COVID-19 Masks

Suit was filed yesterday in a Mississippi federal district court challenging the policy of a Mississippi elementary school that prohibits display of religious (as well as political and sexual) messages on masks worn during the COVID-19 pandemic. The complaint (full text) in L.B. v. Simpson County School District, (SD MS, filed 11/2/2020), alleges that school officials would not allow a third-grade student to wear her mask that displayed the phrase "Jesus Loves Me". The suit claims this amounts to violation of the free speech, free exercise and due process clauses. ADF issued a press release announcing the filing of the lawsuit.

New Survey On Attitudes Toward LGBT Rights

The Public Religion Research Institute yesterday released polling results on the extent of support in the U.S. for same-sex marriage and LGBT anti-discrimination laws. The study finds that majorities of Americans favor allowing same-sex marriage, oppose allowing religiously affiliated agencies that receive taxpayer funding to refuse to accept qualified same-sex couples as foster parents, oppose religiously-based refusals to serve gays and lesbians, and favor allowing transgender individuals to serve in the armed forces. When examined by religious preference, only white evangelical Protestants had majorities at odds with the broader results.

Britain's Equality Commission Cites Labour Party For Antisemitism

Last week, Britain's Equality and Human Rights Commission (EHRC) issued a 130-page report (full text) on its investigation into antisemitism in Britain's Labour Party. According to the EHRC's Announcement of the report, the agency has served the Labour Party with an "unlawful act" notice. (Text of Notice is at pg. 102 of the report). According to the announcement:

The investigation has identified serious failings in the Labour Party leadership in addressing antisemitism and an inadequate process for handling antisemitism complaints.

The Party is responsible for three breaches of the Equality Act (2010) relating to:

• political interference in antisemitism complaints

• failure to provide adequate training to those handling antisemitism complaints

• harassment

The equality body’s analysis points to a culture within the Party which, at best, did not do enough to prevent antisemitism and, at worst, could be seen to accept it....

The Labour Party has until 10 December to draft an action plan to implement the recommendations, which is legally enforceable by the court if not fulfilled. 

The EHRC Chair says that the Labour Party's new leadership has committed to fully implementing  EHRC's recommendations. [Thanks to Law & Religion UK for the lead.]

Ballot Measures To Watch In Tomorrow's Election

While national attention on tomorrow's election has been focused on the Presidential and Congressional races, individuals in several states will be voting on ballot measures that impact churches, relate to law and religion or deal with religiously sensitive topics. Here are the ballot measures to watch:

• Alabama: Amendment 5, "Stand Your Ground" Rights in Franklin County Churches Measure. Amendment 6, "Stand Your Ground" Rights in Lauderdale County Churches Measure.
• California: Proposition 14, Stem Cell Research Institute Bond Initiative.
• Colorado: Proposition 115, 22-Week Abortion Ban Initiative.
• Colorado: Amendment C, Charitable Bingo and Raffles Amendment.
• Georgia: Amendment 2, Allow Residents to Seek Declaratory Relief from Certain Laws Amendment.
• Louisiana: Amendment 1, No Right to Abortion in Constitution Amendment.
• Mississippi: Ballot Measure 3, State Flag Referendum.
• Nevada: Question 2, Marriage Regardless of Gender Amendment.
• Washington: Referendum 90, Sex Education in Public Schools Measure.

Recent Articles of Interest

 From SSRN:

• Kyle Velte, et. al.,  Brief of Amici Curiae Legal Scholars in Support of Equality in Support of Respondents, Fulton v. City of Philadelphia (August 19, 2020).
• Jonathan Harkavy, 2020 Supreme Court Commentary: Employment Law, (September 9, 2020).
• Faruk Hadžić, Multiculturalism Challenges, and the Culture of Fear in the Balkans Regarding Former Yugoslavia, (IJRAR August 2020, Volume 7, Issue 3).
• Fajri Muhammadin, Fiqh Al-Jihād in the Contemporary World: Addressing The Gaps in The Regulations On The Means and Methods of Warfare, (Ph.D Thesis, Ahmad Ibrahim Kuliyyah of Laws, International Islamic University Malaysia (2020)).
• Jayson Lamchek, The Dangers of Human Rights-Compliant Counterterrorism: A Critical Review of the Indonesian Approach, (ANU College of Law Research Paper No. 20.28 (2020).
• Meital Pinto, The Impact of the Basic Law: Israel as the Nation State of the Jewish People on the Status of the Arabic Language in Israel, (Minnesota Journal of International Law, Vol. 30, No. 1, 2020).
• Bernard M. Levinson, At the Intersection of Scribal Training and Theological Profundity: Chiasm as an Editorial Technique in the Primeval History and Deuteronomy, (Brigham Young University Education and Law Journal, Forthcoming).

From SmartCILP:

• Alex Reed, Religious Nonadherence Claims as a Means of Contesting LGB-Related Employment Bias, 40 Berkeley Journal of Employment and Labor Law 339-368 (2019).
• Kyle C. Velte, Postponement as Precedent, 29 Southern California Review of Law & Social Justice 1-72 (2019).

Court Upholds New York's COVOD-19 Cluster Action Initiative

In Soos v. Cuomo, (ND NY, Oct. 30, 2020), a New York federal district court refused to enjoin New York's Cluster Action Initiative begun in early October that targets specific areas for enhanced COVID-19 restrictions.  Houses of Worship were a specific concern of Gov. Cuomo in issuing the executive order creating the Initiative. The court said in part:

To find in plaintiffs' favor under these circumstances would be to second-guess the State's medical experts and scientific and public health findings with respect to what constitutes an "essential" business, which would run afoul of Jacobson and its progeny.... Indeed, the State has arguably shown that, according to their medical and public health experts, religious gatherings pose a unique risk to the spread of COVID-19, and, thus, "although the [Initiative] establishes rules specific to religious gatherings, it does so because they are gatherings, not because they are religious."... 

Accordingly, for purposes of the pending motion, the court is satisfied that the Initiative was guided by science and data, and not a mere desire to target religion, and thus, the Initiative does not exceed the "broad limits" described in Newsom. Additionally, plaintiffs' claims are unlikely to succeed on the merits even applying strict scrutiny review because the injunction is not in the public interest....

State Department Allows "Israel" To Be Listed As Birthplace On Passports of Americans Born In Jerusalem

Last Wednesday, Politco reported:

The Trump administration is expected to soon announce that the U.S. passports of Americans born in Jerusalem can now mention Israel as the country of birth.

The decision, confirmed by a U.S. official Wednesday, is the latest by President Donald Trump that favors Israel in the long-running Israeli-Palestinian conflict. It could be revealed as early as Thursday, just days before next week’s U.S. presidential election, and it could help Trump as he seeks to turn out evangelical Christians and other voters in his base who strongly support Israel.

Public confirmation of this policy change appears to have been made through a Tweet by Secretary of State Mike Pompeo reading:

Consistent with President @realDonaldTrump's policy, I am happy to announce U.S. citizens born in Jerusalem can now elect to list their place of birth as either "Jerusalem" or "Israel" on their passports. We remain committed to lasting peace between Israelis and Palestinians.

As reported by Al Jazeera, yesterday US Ambassador to Israel David Friedman ceremonially presented the first such passport to Menachem Zivotofsky.

An attempt by Congress to change the passport policy was invalidated by the Supreme Court in 2015 on the grounds that it infringed the President's exclusive power to recognize foreign governments. (See prior posting.)

Parents' Challenge To School's LGBT Non-Discrimination Rules Dismissed For Lack of Standing

 In Reynolds v. Talberg, (WD MI, Oct 30, 2020), a Michigan federal district court dismissed, primarily for lack of standing, parents' challenge to a school district's policies that prohibit discrimination on the basis of sexual orientation, gender identity or gender expression. The court said in part:

Citing their Christian faith, Plaintiffs contend the Challenged Policies force their children to disregard their sincerely held religious beliefs and to “affirm[] . . . alternative sexual lifestyles” or else face punishment.... The crux of Plaintiffs’ claim is that the Challenged Policies “promote and force the approval of alternate sexual lifestyles and behavior” in a “manner that infringes upon Plaintiffs’ personal identity, autonomy, and their sincerely held religious beliefs and convictions and constitutional right to oppose such policies and freely speak out on such issues in accordance with their sincerely held religious beliefs.” ... Though Plaintiffs claim that the Challenged Policies permit Williamston public schools to punish students who refuse to “affirm[] . . . alternative sexual lifestyles”..., and would permit students to use bathroom and shower facilities in accordance with their gender identity..., the complaint does not allege that any student represented by Plaintiffs has been disciplined or otherwise restrained under the Challenged Policies, nor do they allege that any transgender student has used facilities in accordance with their gender identity.

The court also rejected a vagueness challenge to the regulations. 

European Court Rules On Jehovah's Witness Right To Payment For Surgery Without Blood Transfusion

In A. v. Veselības ministrija, (Eur. Ct. Justice, Oct. 29, 2020), the European Court of Justice instructed a Latvian court on the criteria to apply in a case in which a Jehovah's Witness child living in Latvia needed heart surgery, but the family had religious objections to blood transfusions. The operation was available in Poland, but not in Latvia, without a transfusion. Latvia's health service refused to pay for the procedure to be done in Poland. The family claims that this amounts to illegal discrimination based on religion. The court concluded:

Article 8(5) and (6)(d) of Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, read in the light of Article 21(1) of the Charter of Fundamental Rights of the European Union, must be interpreted as precluding a patient’s Member State of affiliation from refusing to grant that patient the authorisation provided for in Article 8(1) of that directive, where hospital care, the medical effectiveness of which is not contested, is available in that Member State, although the method of treatment used is contrary to that patient’s religious beliefs, unless that refusal is objectively justified by a legitimate aim relating to maintaining treatment capacity or medical competence, and is an appropriate and necessary means of achieving that aim, which it is for the referring court to determine.

Courthouse News Service reports on the decision.

1st Circuit Upholds Maine's Exclusion of Sectarian Schools From Tuition Reimbursement

In Carson v. Makin, (1st Cir., Oct. 29, 2020), the U.S. 1st Circuit Court of Appeals upheld Maine's statutory provisions that pay tuition to out-of-district public or private high schools for students whose districts do not operate a high school. However, to qualify to receive tuition assistance payments, a private school must be non-sectarian. Plaintiffs challenge this, particularly in light of the U.S. Supreme Court's Trinity Lutheran and Espinoza decisions. The court distinguished Supreme Court precedent as follows:

Accordingly, we proceed on the understanding that this restriction, unlike the one at issue in Espinoza, does not bar schools from receiving funding simply based on their religious identity -- a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction.... Instead, we understand this restriction to bar BCS and TA from receiving the funding based on the religious use that they would make of it in instructing children in the tuition assistance program....

The difficulty Maine confronts is that many of its localities cannot feasibly provide the benefits of that free public education directly to their residents. Thus, Maine has had to adapt to that reality. In doing so, it has chosen to provide -- while still ensuring that any parent in Maine may send their child to a religious school at their own expense -- tuition assistance for those children who live in localities that operate no public secondary school of their own to attend a private school that will provide a substitute for what they cannot get from the government. 

In conditioning the availability of that assistance on the requirement that recipients use it for educational instruction that is as nonsectarian in content as the free public education that is not directly available to them, Maine transgresses neither the Free Exercise Clause nor the Establishment Clause, nor any of the other provisions of the federal Constitution that the plaintiffs invoke.

Courthouse News Service reports on the decision.

9th Circuit: No Qualified Immunity For Refusing Inmate's Religious Diet Request

In Thomas v. Baca, (9th Cir., Oct. 28, 2020), the U.S.9th Circuit Court of Appeals held that qualified immunity was not a defense under the facts of this case for prison officials who refused an inmate's request for a vegetarian-kosher diet. The inmate showed his request was rooted in deep religious belief. Officials asserted no penological interest to justify their refusal.

Indian Tribe Loses Free Exercise Claim In Suit Over Handling of Human Remains At Alamo

In Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., 2020 U.S. Dist. LEXIS 201209 (WD TX, Sept. 23, 2020), a Texas federal district court dismissed a suit brought by an Indian tribe complaining that-- because they are not a federally recognized tribe-- they were excluded from the human remains protocol governing remains found during renovations at the Alamo. Plaintiffs contended that their exclusion discriminates against them because of their race and religion, and violates their free exercise rights. The court said in part:

Plaintiffs state that their core religious beliefs require that when a body is moved, they must perform a "forgiveness ceremony," seeking the deceased ancestor's forgiveness for disturbing their final resting place....

Plaintiffs are seeking to gain participation in the human remains protocol and permission to conduct their ceremony in the Alamo Chapel. Indeed, as Defendants point out, inclusion in the human remains protocol and permission to enter the Alamo Chapel outside of operating hours to conduct a religious ceremony are both "benefit[s] that [are] not otherwise generally available[.]" Patterson, 398 F. Supp. 3d at 123. Rather, they are benefits Plaintiffs seek to exact from Defendants. Such relief is unavailable under Lyng. 485 U.S. at 451; Patterson, 398 F. Supp. 3d at 123....

Suit Challenges Michigan Mask Mandate Imposed On Catholic School

Suit was filed last week in a Michigan federal district court challenging state COVID-19 orders requiring elementary school students to wear masks during the school day. The complaint (full text) in Resurrection School v. Gordon, (WD MI, filed 10/22/2020), alleges, among other things, that the requirement violates students' free exercise and free speech rights. The complaint, brought by a Catholic school along with some students and parents, alleges in part:

At the start of the school year in August 2020, Plaintiffs C.M., Z.M., and N.M. were beginning to engage in Catholic fellowship with their classmates and form relationships with other children based upon the teachings and example of Jesus Christ. Mandating Plaintiff Mianecki’s young children to wear facial coverings is hindering the formation of these bonds and prevents the body of Christ from freely associating....

When wearing facial coverings, Plaintiffs C.M., Z.M., and N.M struggle to engage in and celebrate the Mass....

For many, including Plaintiffs, forcing them to wear a face mask is forcing them to convey a message with which they disagree even when socially distanced in private homes or non- public schools. Wearing a mask conveys the message that the wearer has surrendered his or her freedom to the government, particularly in light of the facts of this current declared pandemic. During this current political climate, a mask has become a symbol. And because a mask has become a political symbol, the wearing of a mask is a form of symbolic speech. Consequently, via the mask mandates, Defendants are compelling Plaintiffs to engage in a form of expression and to convey a message with which they disagree.

Lansing State Journal reports on the lawsuit.

Suit Challenges Missionaries Class In Oklahoma Elementary School

 Suit was filed in an Oklahoma federal district court this week by secular humanists who object to an Oklahoma elementary school's "Missionaries" program which brings Christian missionaries into the school as part of the regular curriculum for students in pre-K through 8th grade. Students are not permitted to opt out of the class. The complaint (full text) in American Humanist Association, Inc. v. Elementary School District No. 22 of Adair County Oklahoma, (ED OK, filed 10/27/2020) alleges that the practice violates the Establishment Clause. American Humanist Association issued a press release announcing the filing of the lawsuit. [Thanks to Friendly Atheist via Mel Kaufman for the lead.]

President Sets Refugee Numbers for FY 2021 With Emphasis On Persecuted Minority Religions

In a Memorandum (full text) issued on Oct. 27, President Trump set the number of refugees to be admitted to the United States in FY 2021 (July 1, 2020 to June 30, 2021) as 15,000.  Of this number, 6,000 are unused spaces from FY 2020 that were not used because of the COVID-19 crisis.  The Presidential Determination set out in the Memorandum places particular emphasis on refugees who are the subject of religious persecution. 

5,000 of the spots are designated for refugees who have been persecuted or have a well-founded fear of persecution on account of religion, or who are admissible under the Lautenberg and Specter Amendments. Those amendments cover, among others, religious minorities in Iran.

4,000 of the spots are designated for refugees covered by the Refugee Crisis in Iraq Act of 2007 (12 Stat. 395). This includes Iraqis who were employed by the United States and Iraqis who are members of a persecuted religious or minority community.

5,000 of the spots are designated for others admitted under the United States Refugee Admissions Program.

The President's Memorandum also provides:

Additionally, I specify that persons from certain high-risk areas of terrorist presence or control, including Somalia, Syria, and Yemen, shall not be admitted as refugees, except those refugees of special humanitarian concern:  (1) who have been persecuted or have a well-founded fear of persecution on account of religion; ... [and certain other exceptions].

6th Circuit: Bus Ad Ban Is Unconstituitonal

In American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportation (SMART), (6th Cir., Oct. 23, 2020), the U.S. 6th Circuit Court of Appeals held unconstitutional a Detroit public transit authority's rejections of an ad aimed at Muslims considering leaving Islam. The ad read:

Fatwa on your head? Is your family or community threatening you? Leaving Islam? Got Questions? Get Answers! RefugefromIslam.com.

The ads were rejected under rules banning political ads and ads that hold up a group of people to scorn or ridicule.  The court said in part:

SMART’s ban on “political” ads is unreasonable for the same reason that a state’s ban on “political” apparel at polling places is unreasonable: SMART offers no “sensible basis for distinguishing what may come in from what must stay out.” Mansky, 138 S. Ct. at 1888. Likewise, SMART’s ban on ads that engage in “scorn or ridicule” is not viewpoint neutral for the same reason that a ban on trademarks that disparage people is not viewpoint neutral: For any group, “an applicant may [display] a positive or benign [ad] but not a derogatory one.” Matal v. Tam, 137 S. Ct. 1744.

Courthouse News Service reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Religious Affiliation of 2020 Electorate Reviewed

The Pew Research Center this week published an overview of the characteristics of the 2020 electorate. It had this to say about the religious affiliation of registered voters in the U.S.:

Christians account for the majority of registered voters in the U.S. (64%). But this figure is down from 79% as recently as 2008. The share of voters who identify as religiously unaffiliated has nearly doubled during that span, from 15% to 28%.

The share of White Christians in the electorate, in particular, has decreased in recent years. White evangelical Protestants account for 18% of registered voters today, down from 21% in 2008. During the same period, the share of voters who are White non-evangelical Protestants fell from 19% to 13%, while the share of White Catholics fell from 17% to 12%.

Around eight-in-ten Republican registered voters (79%) are Christians, compared with about half (52%) of Democratic voters. In turn, Democratic voters are much more likely than GOP voters to identify as religiously unaffiliated (38% vs. 15%).

4th Circuit Hears Oral Arguments In Conversion Therapy Ban Challenge

Yesterday the U.S. 4th Circuit Court of Appeals heard oral arguments in Doyle v. Hogan. (Audio of full oral arguments.) In the case, a Maryland federal district court dismissed free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. (See prior posting.) Courthouse News Service reported on yesterday's proceedings, saying that questions of standing to sue dominated the arguments.

University Student Government Court Orders Reinstatement of Student Senate President Ousted For Religious Views

 In a 19-page decision, the Florida State University Student Supreme Court held that a Catholic student who had been removed as Student Senate president because of religious views he expressed criticizing Black Lives Matter, the ACLU and Reclaim the Block as taking views opposed to Catholic teachings. The decision in Denton v. Daraldik, (FL Student Sup. Ct., Oct. 26, 2020), ordering plaintiff's reinstatement as Student Senate president, said in part:

Plaintiff was acting in his capacity as a private citizen when he made the statements for which he was removed. Plaintiff sent messages in the CSU group chat. The Catholic Student Union, while funded by SGA, operates to promote the teachings of the Catholic Church.... 

The Senates treatment of Plaintiff’s case violated its obligation under the First Amendment not to take action that is hostile to a religion or religious viewpoint. The Senators’ during debate reveal that they were neither tolerant nor respectful of Plaintiff’s religious beliefs when they held their vote of no-confidence. Here, as in Masterpiece, Plaintiff was entitled to a neutral decisionmaker who would give full and fair consideration to his sincerely held religious beliefs. The Senate did not act as a neutral decisionmaker in this case.

ADF issued a press release announcing the decision. (See prior related posting.)

Religious Claim To Cancel Social Security Participation Fails

 In Davis El v. Saul, 2020 U.S. Dist. LEXIS 194196 (MD TN, Oct. 20, 2020), a Tennessee federal district court adopted a magistrate's recommendation (2020 U.S. Dist. LEXIS 195880 (Aug. 31, 2020)) and dismissed a suit by plaintiff who claimed that his free exercise rights, and other constitutional rights, were violated because the government gave him no way to terminate his participation in the Social Security system. The court affirmed the magistrate's conclusion that the Anti-Injunction Act bars the suit.   The magistrate said in part:

Plaintiff does not deny that he could fill out and submit Form 4029 and thereby possibly receive a religious exemption. Instead, he argues that he should not have to follow the required procedure because he does not want a religious exemption to SSI; he wants to "cancel" the contract he perceives to exist between himself and SSA....

Plaintiff has provided no authority for his proposition that not being provided with an alternative to requesting a religious exemption is itself a First Amendment violation....

Because Plaintiff's claims ultimately seek to enjoin the assessment and collection of a federal tax and Plaintiff cannot satisfy either prong of the limited exception to the Anti-Injunction Act's jurisdictional bar, this Court lacks subject matter jurisdiction over Plaintiff's claims.

Court Refuses To Dismiss Indictment In Tree of Life Synagogue Case

In United States v. Bowers, (WD PA, Oct. 15, 2020), a Pennsylvania federal district court refused to dismiss an indictment under the federal Hate Crimes Prevention Act and the Church Arson Act brought against defendant charged in the 2018 attack on Pittsburgh's Tree of Life Synagogue. (Full text of Superseding Indictment.) The court rejected both the facial and the as-applied challenge to the Hate Crimes Act. The court said in part:

Each federal court to have considered the constitutionality of § 249(a)(1) has found it to be a valid exercise of Congressional power under the Thirteenth Amendment....

[T]he congressional intent behind §249(a)(1) makes clear that Congress intended to prohibit violence on the basis of real or perceived religions that “were regarded as races at the time of the adoption of the [Reconstruction] amendments.”... [T]herefore ... §249(a)(1) includes protection for Jewish people in that they were considered a distinct race when the Thirteenth Amendment was-applied.

Upholding the constitutionality of the Church Arson Act against a facial attack, the court said in part:

Congress had a rational basis to conclude that the conduct regulated by § 247 substantially affects interstate commerce.

Responding to defendant's as-applied challenge, the court said in part:

The Defendant’s as-applied challenge requires consideration of a developed factual record and the application of the statute to those facts. Thus, it is premature to determine the as-applied issue at this time.

Recent Articles of Interest

 From SSRN:

• Timothy Lubin, Dignity and Status in Ancient and Medieval India, (Human Dignity in Asia: A Dialogue between Law and Culture, edited by Jimmy Chia-Shin Hsu (Cambridge University Press, Forthcoming).
• Neil James Foster, Statutory Construction and Biblical Hermeneutics- Law in the Service of the Gospel?,  ((2020) 252 St Mark's Review 106-128).

From BYU Law Review, Law & Religion Issue:

• Andrew Koppelman, Gay Rights, Religious Liberty, and the Misleading Racism Analogy
• Shannon Gilreath, Anti-Gay Discrimination, “Conscience Exemptions,” and the Racism Analogy: A Reply to Professor Koppelman.
• James M. Oleske, Jr., In the Court of Koppelman: Motion for Reconsideration.
• Hon. J. Clifford Wallace, With an Even Hand: The Call for Pakistan’s Executive Task Force for Religious Tolerance.

US Signs Multinational Women's Health Declaration That Rejects Abortion

The U.S. Department of Health and Human Services announced that on Oct. 22, the United States co-sponsored a virtual signing ceremony for the Geneva Consensus Declaration on Promoting Women's Health and Strengthening the Family. The Declaration (full text) which calls for universal health care and supporting the role of the family was signed by 32 countries. It reads in part:

[We] Emphasize that “in no case should abortion be promoted as a method of family planning” and that “any measures or changes related to abortion within the health system can only be determined at the national or local level according to the national legislative process”;

... Reaffirm that “the child… needs special safeguards and care… before as well as after birth”....

The signatories agreed to work together to:

Improve and secure access to health and development gains for women, including sexual and reproductive health, which must always promote optimal health, the highest attainable standard of health, without including abortion;

Reaffirm that there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion, consistent with the long-standing international consensus that each nation has the sovereign right to implement programs and activities consistent with their laws and policies...

The primary co-sponsors of the Declaration are Brazil, Egypt, Hungary, Indonesia, Uganda and the United States. The signatories are mostly nations from Africa, the Middle East and Eastern Europe. 

[Thanks to Scott Mange for the lead.]

5th Circuit: Exception To Notice Requirement Under Texas RFRA Applies

 In Gonzales v. Mathis Independent School District, (5th Cir., Oct. 22, 2020), the U.S. 5th Circuit Court of Appeals affirmed a Texas federal district court's issuance of a preliminary injunction to prevent a public school's exclusion of a student from extracurricular activities. The school invoked its hair length requirement to bar two brothers from such activities. The brothers had each made a religious promise (promesa) to wear one lock of hair uncut and braided to protect their mother's pregnancy and to ask for a cure for one of the brothers who had contracted meningitis. The court concluded that one of the brothers was precluded from suing under the Texas Religious Freedom Restoration Act because he had not complied with the statutory requirements of giving 60 days advance notice of the suit. It found, however, that the other brother fell within an exception from the notice requirement

Poland's Top Court Invalidates Law Permitting Abortion In Cases of Fetal Defects

Amnesty International and AP report that yesterday Poland's Constitutional Court has held unconstitutional the provision in Poland's Act on Family Planning, Human Embryo Protection, and Conditions of Legal Pregnancy Termination that permits abortion in cases of  "severe and irreversible fetal defect or incurable illness that threatens the fetus’ life." In an 11-2 decision, Poland's top court further narrowed Poland's strict abortion law. According to AP:

The ruling came in response to a motion from right-wing lawmakers who argued that terminating a pregnancy due to fetal defects — the most common reason cited for legal abortions in Poland — violates a constitutional provision that calls for protecting the life of every individual.

The challenged law was introduced in 1993 as a hard-won compromise that also allows abortions when a pregnancy endangers a woman’s health or life, or results from rape or other illegal act. Even before Thursday’s ruling, many Polish women have sought abortions abroad.

In justifying its decision, the court said there can be no protection of the dignity of an individual without the protection of life. The verdict was announced by the court’s president, Julia Przylebska, a loyalist of the right-wing government.

[Thanks to Scott Mange for the lead.]

Title VII Religious Exemption Does Not Protect Against Suit Over Sexual Orientation Discrimination

 In Starkey v. Roman Catholic Archdiocese of Indianapolis, Inc., (SD IN, Oct. 21,2020), an Indiana federal district court held that a former Catholic school guidance counselor who was fired because of her same-sex marriage may bring a discrimination claim under Title VII. The court rejected the school's contention that the religious institution exemption in Title VII applies. The court said in part:

Sexual orientation is a protected class under Title VII, and the language and legislative history of Title VII indicate Congress intended that religious institutions remain subject to Title VII's prohibition on discrimination on the basis of a protected class. To be sure, this case requires a careful balancing of religious liberty and an employee's right to be free from discrimination. The proper balance is to interpret Title VII's religious exemption to allow a religious employer to make hiring decisions in favor of coreligionists without facing claims of religious discrimination, but to allow a plaintiff to bring claims of other forms of Title VII discrimination. The religious exemption does not bar Starkey's Title VII claims of discrimination on the basis of sexual orientation, retaliation, and hostile work environment....

So, the question then becomes: Does a religious reason for an employment decision bar a plaintiff's Title VII claim when the religious reason also implicates another protected class?  The exemption under Section 702 should not be read to swallow Title VII's rules. It should be narrowly construed to avoid reducing Title VII's expansive rights and protections.

 Indiana Lawyer reports on the decision.

Student Sues Over Ban On Shirt With Anti-Gay Message

Suit was filed in a Tennessee federal district court last week by a high school student and her father challenging a public school's interpretation of a Policy in its Student Handbook that bars clothing with offensive messages, including sexual connotations.  The school insisted that the Policy prohibits plaintiff from wearing a shirt featuring the message "homosexuality is a sin-- 1 Corinthians 6:9-10".  The suit contends that this violates plaintiff's free exercise and free speech rights. The complaint (full text) in B.A.P. v. Overton County Board of Education, (MD TN, filed 10/16/2020), alleges in part:

Plaintiffs have a personal belief in the Biblical mandate to spread the Gospel of Jesus Christ, and Plaintiff B.A.P. engages in activities, for the purpose of spreading the Gospel of Jesus Christ, that are prohibited by the [school's] Policy.

WZTV reports on the lawsuit.

USCIRF Hearing On Hate Speech Targeting Religious Groups

Yesterday the U.S. Commission on International Religious Freedom held a hearing on Combatting Online Hate Speech and Disinformation Targeting Religious Communities.  The USCIRF website has a video of the full hearing and transcripts of witnesses' testimony.

Pope Francis Endorses LGBT Civil Union Laws

Catholic News Agency reported yesterday that in a newly released documentary titled Francesco, Pope Francis called for the passage of civil union laws covering same-sex couples. This is inconsistent with the positions of prior Popes and with the views of the Vatican's Congregation for the Doctrine of the Faith. In a portion of the documentary devoted to pastoral care for LGBT individuals, the Pope said:

Homosexuals have a right to be a part of the family. They’re children of God and have a right to a family. Nobody should be thrown out, or be made miserable because of it....

What we have to create is a civil union law. That way they are legally covered. I stood up for that.

Colorado Limits On Worship Services Enjoined

In Denver Bible Church v. Azar, (D CO, Oct. 15, 2020), a Colorado federal district court granted a preliminary injunction barring enforcement against two churches of portions of Colorado's COVID-19 restrictions on worship services. The court said in part:

Plaintiffs are likely to succeed on the merits of their free exercise claim for a simple reason. Having decided that the risk of allowing various activities to be exempt from the strictest Safer at Home rules is justified on the basis that those activities are critical and necessary, the State cannot decide for Plaintiffs what is critical and necessary to their religious exercise. With each exception Colorado makes for secular institutions, the failure to make the same exemption for houses of worship becomes increasingly problematic.... So Colorado’s failure to offer a compelling reason why houses of worship are subject to greater restrictions than warehouses, schools, and restaurants violates the First Amendment’s guarantee of the free exercise of religion....

Note well that the implications of this conclusion aren’t as broad as some might hope or others might fear. Plaintiffs will still be subject to the neutrally applicable rules and prohibitions in Public Health Order 20-35. They will, for example, have to enforce sanitization requirements, maintain social distancing between individuals, and not permit shaking hands.... All in all, based on their bona fide religious need to do so, Plaintiffs will be allowed to open their sanctuaries subject to the same capacity, social distancing, and masking rules that are applicable to other critical businesses, and will be able to permit congregants to remove their masks if and when it is necessary to carry out their religious exercise.

CBSN Denver reports on the decision.

Pennsylvania Supreme Court Hears Arguments In Important Clergy Abuse Case

Pittsburgh Post-Gazette reports on oral arguments before the Pennsylvania Supreme Court yesterday in an important case on Catholic Church liability for priest sexual abuse occurring many years ago:

At issue is the claim by plaintiff Renee Rice of Altoona that the Diocese of Altoona-Johnstown conspired to cover up abuse by priests including that of her own alleged assailant — the Rev. Charles Bodziak — in the 1970s and 1980s. She sued the diocese for alleged fraud and concealment, saying that it was not until a 2016 statewide grand jury report that she learned of “a massive, systemic conspiracy of coverup to allow … children to be abused repeatedly,” attorney Alan Perer said.

But in repeated questioning, some of the justices echoed the argument of the diocese’s own attorney — that a plaintiff has an obligation within the statute of limitations to investigate the source of her injury and those who may have been responsible for it.

Plaintiff argues that it should be up to a jury to decide if she should have investigated sooner.

Jail's "God-Pod" Program Violates Establishment Clause

 In Young v. Newton, (ED VA, Oct. 16, 2020), a Virginia federal district court, while rejecting a number of claims by Muslim inmates, held that the Riverside Regional Jail Authority (along with its superintendent and the program chaplain) violated the Establishment Clause when they created the Christian-based Life Learning Program (known as the "God Pod"). Participating inmates lived in a separate pod and had access to a microwave and initially were able to single-bunk. The court said in part:

The LLP was unquestionably based on Christian principles and the Bible, which ... is a Christian book. The administration of that program demonstrated a preference for Christianity over other religions and extended benefits to those who subscribed to that preference. Any secular purpose of the LLP, such as to teach skills related to intellectual, emotional, spiritual, relational, occupational, and financial success, was pursued through religious, specifically Christian, teachings, which had the primary effect of advancing Christianity at the Riverside Regional Jail.

CAIR issued a press release announcing the decision.

Pastor Was Validly Demoted and Terminated

In Kim v. Kwon, (CA App., Oct. 19, 2020), a California state appellate court affirmed a trial court's decision that plaintiffs are validly elected directors of Irvine Baptist Church and that they validly demoted and then terminated senior associate pastor David Kwon. The court said in part:

The [Ordained Deacons Committee] ... acted within the scope of its authority under the Church Constitution when it demoted and terminated Kwon....

True, the trial court did not determine whether the ODC had valid grounds to demote or terminate Kwon based on his performance of his ministerial duties. But this is a different question than whether it had the authority to do so. And the court was right to tread lightly there. “The establishment clause of the First Amendment to the United States Constitution, as well as its California counterpart (Cal. Const., art. I, § 4), precludes civil courts from adjudicating [civil or] property disputes based on religious doctrine.” 

Russia Continues To Prosecute For Failure of Religious Groups To Display Full Official Names

 Forum 18 reported yesterday:

Religious organisations in Russia continue to be prosecuted for not showing their full official names on literature, online, and most frequently of all, on their buildings – despite a lack of clear guidance in law on how and where names should be displayed.

According to available court records, 98 prosecutions reached court between the beginning of January 2019 and the end of June 2020. These involved 76 registered religious organisations and 22 individuals. Most resulted in guilty verdicts and fines, with a conviction rate across the 18-month period of 72.5 per cent....

Forum 18 found 14 cases in 2019-20 in which judges ordered the confiscation of religious literature which had allegedly been "distributed as part of missionary activity" and should therefore have been bearing the religious organisations' full official names. In six of these cases, the books, magazines, CDs, or newspapers were also ordered destroyed.

More Litigation Developments In Religious Institution Challenges To COVID-19 Restrictions

Suit was filed last week in an Oregon federal district court challenging Oregon's COVID-19 Orders and guidance that grant small public schools, but not small private or religious schools, an exemption from the ban on in-person instruction. The complaint (full text) in Hermiston Christian Center v. Brown, (D OR, filed 10/16/2020) asserts various 1st and 14th Amendment claims, including the charge that the Orders unlawfully target religious schools. ADF issued a press release announcing the filing of the lawsuit.

Becket announced that it filed suit last week in Lebovits v. Cuomo, (ND NY, filed 10/15/2020). The suit is brought on behalf of two young women and their Orthodox Jewish school.  It challenges New York City's lock down in zip codes in which there are micro-clusters of COVID-19.

Amistad Project announced that it filed suit over the weekend in Libertas Classical Ass'n v. Whitmer, (WD MI), on behalf of a K-12 Christian school in Hudsonville, MI. According to the press release:

... [T]he Whitmer Administration has made repeated, unreasonable demands on the school since September 4, including that kindergarteners always wear masks while in school, including during chapel and outdoor recess....

This violates the First Amendment rights of assembly and religion for the school's 265 students, as well as parents and staff.

In Maryville Baptist Church, Inc. v. Beshar, (6th Cir., Oct. 19, 2020), the U.S. 6th Circuit Court of Appeals refused to allow a church and its congregants to obtain an appellate court ruling on a dispute that had essentially become moot.  In March 2020, Kentucky Governor Andy Beshear had barred all religious services as part of the state's response to the COVID-19 pandemic. Federal courts preliminarily enjoined the ban from going into effect and subsequently the Governor ended the ban. Liberty Counsel issued a press release announcing the decision.

In Gish v. Newsom, 2020 U.S. Dist. LEXIS 192714 (CD CA, Oct. 9, 2020), a California federal district court refused to reconsider its decision upholding the state's COVID-19 Orders that limit indoor religious services.

Native American Band Fails In Attempt To Halt Border Barrier Construction

 In Manzanita Band of the Kumeyaay Nation v. Wolf, (D DC, Oct. 16, 2020), in a suit by a Native American tribe the D.C. federal district court refused to enjoin construction on two barrier projects along the U.S.-Mexico border in California. The court said in part:

The Kumeyaay’s principal claim of injury is this: So long as construction at the Projects continues without proper consultation and mitigation measures, it will “unavoidably damage” cultural and religious sites and artifacts, as well as the natural setting and resources “on which the sacred nature of such sites depends.”... The Court does not doubt the significance of the region to the Kumeyaay’s religion. But they have not made a clear showing to support their contention for any of these alleged harms....

For starters, no Kumeyaay burial sites or remains have been identified within the narrow strip of federal land where construction is taking place, even after the Government surveyed and re-surveyed the land.

Recent Articles of Interest

 From SSRN:

• Samuel J. Levine, Hands-Off Religion in the Early Months of COVID-19, (October 1, 2020).
• Sahar F. Aziz, Legally White, Socially Brown: Racialization of Middle Eastern Americans, (Routledge Handbook on Islam and Race (ed. Zain Abdullah), Forthcoming).
• Michael Goodyear, Heaven or Earth: The Hagia Sophia Re-Conversion, Turkish and International Law, and Universal Religious Sites, (August 24, 2020).
• Joel Harrison, Christian Accounts of Religious Liberty: Two Views of Conscience, (Brigham Young University Law Review, Forthcoming).
• Adam Shinar, Barak Medina & Gila Stopler, From Promise to Retrenchment? On the Changing Landscape of Israeli Constitutionalism, (18 International Journal of Constitutional Law (ICON) (2020)).
• Helen Dancer, Women in Law and Justice, (Oxford Research Encyclopedia of African History. Oxford University Press. (2020)).
• Stefanus Hendrianto,The Last Testament of Justice Scalia: On Aquinas and Law, 34 Notre Dame Journal of Law Ethics & Public Policy 197-238 (2020).

From SmartCILP:

• Hieu The Le & Joan Catherine, The Intersection of Stem Cell Research, the Roman Catholic Church, United States Constitutional Law, and Public Policy, [Abstract], 23 Quinnipiac Health Law Journal 31-48 (2020).

New York's Zip-Code Targeted COVID-19 Limits Are Upheld

In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (ED NY, Oct. 16, 2020), a New York federal district court refused to grant a preliminary injunction to the Diocese in its challenge to New York's COVID-19 cluster action initiative that targets specific zip codes. A TRO had previously been denied. (See prior posting.) Rejecting plaintiff's arguments, the court said in part:

[T]he excerpts from the Governor's public comments do not transform a neutral law into a religiously targeted one. The evidence shows that Governor Cuomo is clearly aware and concerned that EO 202.68 burdens religious practice, and particularly the religious practice of Orthodox Jews, but awareness that the burden of a law falls unequally does not establish that the law was designed to target religious groups. Indeed, as the Governor reportedly told a group of Jewish community leaders, although the policy is a "very blunt" instrument, its purpose is to "get the numbers down in the zip codes." ... The court reads the Governor's statement to say that EO 202.68 is targeted temporarily at all gatherings in the areas where there are spikes in COVID-19 positivity rates, not at religious gatherings in particular.

Church's Challenge To California COVID-19 Limits Rejected Again

 In South Bay United Pentecostal Church v. Newsom, (SD CA, Oct. 15, 2020), a California federal district court refused to grant a preliminary injunction to a church that challenged California's current COVID-19 restrictions on worship services. The state limits plaintiffs’ indoor worship services to the lesser of 25% of building capacity or 100 people. The church had earlier unsuccessfully appealed a challenge to an earlier version of state restrictions all the way to the U.S. Supreme Court. (See prior posting.) According to the district court:

Plaintiffs now argue ... that California’s “scientific pronouncements” are “largely baseless,” and that by “all reasonable scientific measurements,” the COVID-19 health emergency “has ended.” ... They also argue the State’s restrictions treat certain secular businesses more favorably than religious organizations and have been enforced in a discriminatory manner.

The court again rejected plaintiff's arguments, saying in part:

At bottom, Plaintiffs’ renewed motion asks the Court to second guess decisions made by California officials concerning whether COVID-19 continues to present a health emergency and whether large indoor gatherings with singing pose a risk to public health. Although not binding, the Court finds Chief Justice Roberts’s reasoning in this case to be compelling. The background set forth above shows the State and County “are actively shaping their response to changing facts on the ground.” ...  And the evidence demonstrates the COVID-19 pandemic remains an area “fraught with medical and scientific uncertainties,” where the State and County’s latitude “must be especially broad.”

Tennessee 48-Hour Abortion Waiting Period Struck Down

 In Adams & Boyle, P.C. v. Slatery, (MD TN, Oct. 14, 2020), a Tennessee federal district court struck down Tennessee's requirement that women seeking an abortion must receive specified information in person and then wait 48 hours before undergoing the procedure. The court, in a 136-page opinion, said in part:

The Court finds and concludes that the mandatory waiting period required by § 39-15-202(a)-(h) substantially burdens women seeking an abortion in Tennessee. Plaintiffs have demonstrated conclusively that the statute causes increased wait times, imposes logistical and financial burdens, subjects patients to increased medical risks, and stigmatizes and demeans women. These burdens are especially difficult, if not impossible, for low-income women to overcome, and the evidence clearly shows that the vast majority of women seeking abortions in Tennessee are low income. Further, plaintiffs have shown that the statute undermines the doctor-patient relationship and imposes operational and financial burdens on abortion providers....

Defendants have failed to show that the challenged mandatory waiting period protects fetal life or the health of women in Tennessee. It is apparent that this waiting period unduly burdens women’s right to an abortion and is an affront to their “dignity and autonomy,” “personhood” and “destiny,” and “conception of . . . [their] place in society.”

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

Rockland County (NY) Synagogues Sue Over Targeted COVID-19 Order

Another lawsuit challenging New York Gov. Andrew Cuomo's Oct. 6 Executive Order targeting Covid-19 hot spots was filed on Wednesday by three Hasidic Jewish congregations in Rockland County (NY).  The complaint (full text) in Congregation Yesheos Yakov v. State of New York, (SD NY, filed 10/14/2020), alleges that the Order was directed at "activities of specific minority religious communities during one of the most important religious holidays in their faith." Alleging numerous violations of the 1st and 14th Amendments, the complaint says in part:

2. The Governor freely and repeatedly admitted his decision was not driven by science, or data, but, by “fear.”

3. Based on this fear, and not on any epidemiological or other objective data, Governor Cuomo’s Executive Order No. 202.68 ... established colorcoded COVID-19 “hot-spot” zoning areas subject to gathering limits and restrictions that singled out as “hot-spots” known enclaves of the Hasidic and strictly-observant Jewish Orthodox communities.

PJ Media reports on the lawsuit.

2nd Circuit Hears Oral Arguments In Vermont School Voucher Case

On Tuesday, the U.S. 2nd Circuit Court of Appeals heard oral arguments (audio of full arguments) in A.M. v. French. In the case,  a Vermont federal district court refused to order the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program that pays for high schoolers to take college courses. (See prior posting.) ADF (which represents plaintiffs) has a case page with links to some of the pleadings and other material on the case.

Amy Coney Barrett's Views On 1st Amendment Religion Issues Examined

Tuesday was Day 2 of the hearings on Amy Coney Barrett's nomination for the U.S. Supreme Court. Don Byrd at BJC has posted video clips of the exchanges between Barrett and members of the Senate Judiciary Committee on church-state and religious liberty issues. Earlier this week BJC submitted a letter to the Committee (full text) reviewing Barrett's limited record on church-state and religious liberty matters.

Cert. Filed In Church's Challenge To Illinois COVID-19 Orders

 A petition for certiorari (full text) was filed today with the U.S. Supreme Court in Romanian Pentecostal Church v. Pritzker, (cert. filed 10/14/2020).  In the case, the U.S. 7th Circuit Court of Appeals rejected a church's challenge to Illinois Governor J.B. Pritzker's COVID-19 orders which restrict-- or in their latest form urge --restriction on the size of worship services. (See prior posting.)  Liberty Counsel issued a press release announcing the filing of the petition for Supreme Court review.                

6th Circuit Hears Arguments On Kentucky COVID Orders Applicable To Churches

Yesterday, the U.S. 6th Circuit Court of Appeals heard oral arguments in Maryville Baptist Church v. Beshear and Roberts v. Beshear. (Audio of oral arguments.) At issue are the constitutionality of Kentucky Governor Andy Beshear's orders limiting mass gatherings, including church services. See prior postings (1, 2). Courthouse News Service reports on yesterday's oral arguments.

Pretextual Religious Reasons For Firing Not Protected By Religious Autonomy Doctrine

In Garrick v. Moody Bible Institute, (ND IL, Oct. 13, 2020), an Illinois federal district court allowed a former Instructor of Communications at Moody Bible Institute (MBI) to move ahead with her Title VII disparate treatment and retaliation claims, but not her hostile work environment claim. Plaintiff Janay Garrick says she encountered rampant gender discrimination and harassment, and that MBI used disagreement with her religious views as a pretext for her firing. Rejecting in part MBI's religious autonomy defense, the court said:

Garrick alleges that Moody expected female teachers of secular subjects to perform more demanding duties and submit to more onerous performance reviews than similarly situated male teachers.... Under those circumstances, a reasonable inference can be made from the allegations that Moody fired Garrick because it held female teachers to higher standards than their male counterparts, not because it disapproved of her egalitarian religious views.

The court had dismissed an earlier version of plaintiff's complaint on church autonomy grounds. (See prior posting.)

Facebook Will Ban Holocaust Denial

Yesterday Facebook CEO Mark Zuckerberg announced that Facebook is updating its hate speech policy to ban Holocaust denial on its platform. He said in part:

[W]ith rising anti-Semitism, we're expanding our policy to prohibit any content that denies or distorts the Holocaust...

I've struggled with the tension between standing for free expression and the harm caused by minimizing or denying the horror of the Holocaust. My own thinking has evolved as I've seen data showing an increase in anti-Semitic violence, as have our wider policies on hate speech.

NPR has more on the decision.

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.