6th Circuit Hears Oral Arguments In Case of Prof Who Refused To Use Student's Preferred Pronouns

The U.S. 6th Circuit Court of Appeals on Thursday heard oral arguments in Meriwether v. Hartop.(Audio of full oral arguments.) In the case, an Ohio federal district court dismissed a lawsuit by a college philosophy professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The professor refused to address a transgender student using the student's preferred gender identity title and pronouns, and instead used only the student's name. (See prior posting.) Portsmouth Daily Times reports on the oral arguments.

11th Circuit Strikes Down Conversion Therapy Ban

 In Otto v. City of Boca Raton, Florida, (11th Cir., Nov. 20, 2020), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, struck down city and county ordinances in Florida that ban therapists from engaging in counseling or therapy aimed at changing a minor’s sexual orientation, reducing a minor’s sexual or romantic attractions, or changing a minor’s gender identity or expression. Support to minors undergoing gender transition, however is permitted. The majority said in part:

We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny...

This decision allows speech that many find concerning—even dangerous. But consider the alternative. If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful.... People have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.

Judge Martin, dissenting, said in part:

The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech. Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist.... I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility.

Palm Beach Post reports on the decision.

Court Says Church Trustees Had Authority To Remove Pastor

In Vaughn v. Faith Bible Church of Sudlersville, (MD App., Nov. 19, 2020), a Maryland state appellate court held that under the state's Religious Corporation Act, trustees of the church had the authority to remove its pastor. The court said in part:

Churches in Maryland formally organize as religious corporations and thus, the trustees, not the congregation, constitute the corporation....

Appellant ... argues that Shore Haven trustees lacked authority to terminate him because the firing of a church pastor is an ecclesiastical matter reserved to the church, not the trustees....

However, here, there was simply no evidence that the Board’s decision was based on disputes regarding religious doctrine, biblical interpretations or other ecclesiastical matters. As stated by appellee, “appellant’s personal behaviors, organizational shortcomings, inability to manage a breakdown in civility, and over-heated remarks about [a Shore Haven trustee] drove” the decision.

Suit Challenges DC's Refusal To Allow "Black Pre-Born Lives Matter" Mural on Street

Suit was filed this week in D.C. federal district court challenging the constitutionality of D.C.'s refusal to allow protesting groups to paint a mural reading "Black Pre-Born Lives Matter" on the street near a Planned Parenthood Clinic. It also barred the chalking of the same message. The complaint (full text) in Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, filed 11/18/2020) points out that murals reading "Black Lives Matter" and "Defund the Police" were permitted to be painted along other D.C. streets. Plaintiffs contend that this differential treatment violates their free speech, equal protection and free exercise rights.  ADF issued a press release announcing the filing of the lawsuit.

Oregon COVD-19 Limits On Parochial Schools Upheld

The Oregonian yesterday reported on federal district judge's ruling from the bench in Horizon Christian School v. State of Oregon, (D OR, Nov. 17, 2020) denying a preliminary injunction to three Christian schools challenging Gov. Kate Brown’s COVID-19 executive order that limits the schools to remote instruction. According to the report:

Attorney John Kaempf, representing Horizon Christian School, McMinnville Christian Academy and Life Christian School, had urged the judge to halt the governor’s executive order and allow the three schools to reopen with in-person classes and proper safeguards in place.

He argued that gathering communally is a tenet of Catholic education, and not allowing the schools to hold in-person religious classes violates their freedom of religion and expression....

U.S. District Judge Michael W. Mosman said he found it “utterly implausible,” that the governor’s motive behind her executive order was to shut down religious schools.

Previously the court had denied a temporary restraining order in the case. (See prior posting.)

10th Circuit Dismisses Objections To Attempted Search of Church

 In Aguilera v. City of Colorado Springs, (10th Cir., Nov. 18, 2020), the U.S. 10th Circuit Court of Appeals affirmed the dismissal of a civil rights claim brought by the High Priestess/ Property Manager of Green Faith Ministry who objected to an attempt by a police officer and fire marshals to inspect the ministry's building. Officers apparently suspected marijuana usage or occupancy standard violations. The court rejected plaintiff's complaint that one officer told her to "praise the Lord." The court said in part:

Aguilera’s amended complaint does not allege facts indicating that an objective observer would view Officer Vargason’s purpose in saying “Praise the Lord” as an official endorsement of religion.

The court also rejected plaintiff's free exercise claim, concluding:

Aguilera has failed to allege that any defendant burdened her exercise of religious beliefs or practices.

FBI Releases 2019 Hate Crime Statistics

This week, the FBI released its 2019 Hate Crime Statistics. According to the Report, of the 7,103 single-bias incidents, 19.9% of the offenses, and 21.4% of the incidents, were motivated by religious bias. Of the offenses motivated by religious bias:  60.3% were anti-Jewish; 13.3% percent were anti-Islamic (Muslim); 4.0% were anti-Catholic; 3.6% were anti-Other Christian; 3.0% were anti-Sikh; 2.8% were anti-Eastern Orthodox (Russian, Greek, Other); 2.5 percent were anti-multiple religions; 1.5% were anti-Protestant; 0.8% were anti-Mormon; 0.4% were anti-Hindu; 0.4% were anti-Jehovah’s Witness; 0.4% were anti-Atheism/Agnosticism; 0.3% were anti-Buddhist. The prior year's report showed 20.2% of the offenses motivated by religious bias. (See prior posting.) ADL issued a press release commenting on the Report, as did Muslim Advocates.

New Report On Attitudes Toward Religious Liberty

Becket Fund for Religious Liberty this week released its second annual Religious Freedom Index, a 90-page report on American attitudes toward religion, culture and the law. The Executive Summary says in part:

[T]he Index asks questions that provide insights into opinion on past, present, and future religious liberty topics. These responses statistically group into six dimensions that contribute to the yearly Index score: 1)Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action.

The Becket website has additional information.

7th Circuit Stays, Pending Appeal, Injunction Against Creche On County Property

 As the holiday season approaches, the U.S. 7th Circuit Court of Appeals by a vote of 2-1 in Woodring v. Jackson County, Indiana, (7th Cir., Nov. 17, 2020), granted a stay pending appeal of a district court order barring the display of a creche on the historical county courthouse-- now county office building-- lawn. The appeal on the merits in the case was argued before the 7th Circuit last week. (See prior posting.) Judge dissented, saying:

The relief granted by the stay violates the Establishment Clause. The dominant religious content of the display communicates to a reasonable observer a governmental endorsement of Christianity, a matter as to which governments must remain neutral. In addition, the county waited so long to seek this stay that it cannot plausibly claim it needs emergency relief.

Liberty Counsel issued a press release (including a photo of the display) announcing the grant of the stay.

NY Court Approves Sale of Christian College Campus To Yeshiva

Under New York law, court approval (or approval by the attorney General) is required for sale of assets of a non-profit educational corporation. In In re Nyack College, (Sup Ct NY County, Nov. 13, 2020), the court approved the sale of Nyack College's South Nyack campus to Yeshiva of Viznitz D'Khal Torath Chaim in Ramapo. Nyack, a Christian College.  According to Lower Hudson News, the Yeshivah plans to operate Jewish religious schools for 250 college age students and 250 high school students.

10th Circuit Hears Oral Arguments In Colorado Ban On Discriminating Against Same-Sex Weddings

 On Monday, the U.S. 10th Circuit Court of appeals heard oral arguments (audio of full arguments) in 303 Creative v. Elenis. In the case, plaintiff Lorie Smith wanted to expand her business to design custom websites for couples planning weddings. However she would not provide her services for same-sex weddings.  Last year, a Colorado federal district court rejected a constitutional challenge to the application of the "communications clause" of Colorado's public accommodation law to Smith's business.  That law prohibits publication of any notice or advertisement indicating that services will be withheld on the basis of, among other things, sexual orientation. (See prior posting.) KNSI News reports on the oral arguments.

West Virginia Supreme Court Exempts Religious Schools and Camps From Deceptive Practices Ban

 In State of West Virginia ex rel. Morrisey v. Diocese of Wheeling-Charleston, (WV Sup. Ct., Nov. 16, 2020), the West Virginia Supreme Court held that the deceptive practices provisions of the state's Consumer Credit and Protection Act cannot be applied to educational and recreational services offered by a religious institution. It concluded that state statutory provisions protecting religious schools and institutions lead to this result.  It also held that 

the entire relationship between Church and State arising from the Attorney General’s application of the Act constitute an excessive entanglement of  Church and State...

According to the court:

[T]he Attorney General claimed that the Diocese had violated the deceptive practices provisions when it knowingly employed admitted and credibly-accused sexual abusers in its schools and camps but neither disclosed that material information to consumers nor warned them of the alleged dangers inherent to the educational and recreational services it provided. The Attorney General also claimed that the Diocese had made material misrepresentations regarding the safety of those services....

Justice Workman filed a dissenting opinion, saying in part:

The majority opinion is transparently result-oriented which explains its logical incoherence and sins of omission. The issue before the Court is one of fairness and honesty in commercial communications to the public---potential purchasers of goods and services. The fundamental question involves matters of unfair or deceptive acts or practices in advertising or selling and in advertising based on false promises. That is all. Nothing else is at issue. This case has absolutely nothing to do with the free exercise or expression of religious thought and nothing to do with regulating religious institutions in the sense of excessive State entanglement....

In conclusion, the majority opinion slams the door shut on enforcement of even the most blatant unfair or deceptive commercial conduct on the grounds that false or misleading advertising was perpetrated by a religious institution.... Ironically, religious institutions have been given an unfair marketplace advantage with respect to their commercial enterprises. 

AP reports on the decision.

New Jersey School's Presentation of Islam Did Not Violate Establishment Clause

 In Hilsenrath v. School District of the Chathams, (D NJ, Nov. 12, 2020), a New Jersey federal district court held that the 7th grade World Cultures and Geography course presentation of material about Islam did not violate the Establishment Clause.  The court held that a nominal damages claim is sufficient to give plaintiff standing to challenge the course material. The court said in part:

Here, the World Cultures course includes similar units on, for example, Hinduism and Buddhism, in which students watch videos on those religions to understand their tenets and practices.... A reasonable observer would not perceive an endorsement of Islam when the course also presented other religions in a similar manner. Further, Islam is introduced as part of a unit on the Middle East and North Africa in a course covering geography and world cultures, so it is presented in conjunction with nonreligious material about a region of the world....

This case falls into the category of those in which schools permissibly asked students to “read, discuss, and think” about a religion.

TAPinto reports on the decision.

11th Circuit Allows Buddhist Center To Move Ahead With RLUIPA and State Law Claims

 In Thai Meditation Association of Alabama, Inc. v. City of Mobile Alabama, (11th Cir., Nov. 16, 2020), the U.S. 11th Circuit Court of Appeals remanded to the district court some of the claims by a Buddhist group that its rights were violated when the city Planning Commission and City Commission refused to approve its proposed meditation center.  The court held that the district court had used the wrong test to determine whether  the refusal imposed a "substantial burden" in violation of RLUIPA and the 1st Amendment. The Court said in part:

it isn’t necessary for a plaintiff to prove—as the district court here seemed to assume—that the government required her to completely surrender her religious beliefs; modified behavior, if the result of government coercion or pressure, can be enough. ...

However the court rejected plaintiffs' religious discrimination claim, saying in part:

It’s not enough .. for the plaintiffs to show that community members opposed their applications on prohibited grounds—they must prove that the city officials who rejected them acted with discriminatory intent. And we cannot attribute the residents’ purported bias to city officials absent at least some proof that the officials “ratified” it.

The court also held that Alabama's Religious Freedom Amendment requires plaintiffs to merely show a "burden", rather than a "substantial burden" on their religious exercise. The Court said in part:

Given the post-RFRA context in which ARFA was adopted, and its pointed rejection of the phrase “substantially burden” in favor of “burden” simpliciter, we conclude that qualifier’s omission was intentional. No matter how tempting it may be—whether to harmonize state and federal law or, as the district court suggested, to “control[] the floodgates of litigation”—we aren’t at liberty to graft the adverb “substantially” onto a provision (or set of provisions) that won’t accommodate it....

Recent Articles and Publications of Interest

 From SSRN:

• Suzanne A. Kim, Commentary on Burwell v. Hobby Lobby, (in Feminist Judgments: Reproductive Justice Rewritten (Kimberly Mutcherson ed., 2020).
• Ihsan Yilmaz, Erdoğanism’s Undesired Citizens, (August 21, 2020).
• Meghan J. Ryan, Framing Individualized Sentencing for Politics and the Constitution, (American Criminal Law Review, Forthcoming).
• Nelson Tebbe, A Democratic Political Economy for the First Amendment, (105 Cornell Law Review 959 (2020)).
• Elijah Zachary Granet & Frank Cranmer, Re S (Parental Alienation: Cult), ([2020] LAW & JUSTICE 118).
• Marina Lostal, Islamic State and the Illicit Traffic of Cultural Property, (The International Criminal Responsibility of War’s Funders and Profiteers, edited by Nina H B Jørgensen, 122–47 (Cambridge: Cambridge University Press, 2020)).
• Muhammad Farooq, The Man’s Right to Dissolve the Muslim Marriage: Treatment of This Right in Shari’ah and in Case Law of Pakistan, (August 7, 2019).

From SmartCILP and elsewhere:

• Judith Bartnoff, 2019 Shrensky Lecture on Law and Jewish Ethics. Doing Justice: Judging and Jewish Values, 69 American University Law Review 615-628 (2019).
• Catherine A. Hardee, Schrodinger's Corporation: The Paradox of Religious Sincerity in Heterogeneous Corporations, 61 Boston College Law Review 1763-1818 (2020).
• John Inazu, Taking Stock of the Religion Clauses, 97 Washington University Law Review 1631-1640 (2020).
• Michael W. McConnell, Keynote address. Freedom of Association: Campus Religious Groups, 97 Washington University Law Review 1641-1652 (2020).
• Stephanie H. Barclay, Untangling Entanglement, 97 Washington University Law Review 1701-1728 (2020).
• Garielle M. Girgis, What Is a "Substantial Burden" on Religion under RFRA and the First Amendment?, 97 Washington University Law Review 1755-1786 (2020).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, (Updated 2020 version).
• Scott Wiener, Guardianship, Women, and Religious Freedom in Saudi Arabia, (USCIRF Update, Nov. 2020).

Chabad Moves One Step Closer To Recovering Sanctions Against Russia In Attempt To Repatriate Library

Agudas Chasidei Chabad of the United States v. Russian Federation, (D DC, Nov. 6, 2020), is the latest decision in a long-running attempt by Agudas Chasidei Chabad to recover from the Russian government two expropriated collections of valuable Jewish religious books and manuscripts. In 2013, the D.C. federal district court held the Russian government and three of its agencies in civil contempt, and imposed sanctions of $50,000 per day, for not complying with a 2010 default judgement ordering it to return the materials. (See prior posting). Plaintiffs attempted to find Russian assets to satisfy the sanctions by issuing subpoenas to Tenam, an indirectly wholly-owned subsidiary of Russia's nuclear agency.  Tenam challenged the subpoenas by challenging the underlying judgment against Russia. The district court held that Tenam lacks standing to challenge that judgment, and Tenam appealed. Now Tenam seeks a stay of discovery pending that appeal. In this latest 54-page decision, the federal district court denies that stay. VINnews reports on the decision. [Thanks to Steven H. Sholk for the lead.]

7th Circuit Hears Oral Arguments In Creche Case

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in Woodring v. Jackson County, Indiana. (Audio of full oral arguments.) In the case, an Indiana federal district court refused to dismiss an Establishment Clause challenge to a nativity scene that is placed on the Jackson County courthouse lawn each December. (See prior posting).  Courthouse News Service reports on yesterday's oral arguments.

Brooklyn Diocese Asks Supreme Court To Enjoin COVID-19 Church Capacity Limits

Yesterday, an Emergency Application for Writ of Injunction (full text) was filed by the Catholic Diocese of Brooklyn in its challenge to New York Governor Andrew Cuomo's limitations on the number of persons who can attend a worship service during the COVID-19 pandemic. (See prior posting.) The U.S. Second Circuit Court of Appeals, in a 2-1 decision, refused to grant an injunction pending appeal to the Diocese and to a group of Jewish synagogues in the challenge to special restrictions on spots in which clusters of COVD-19 cases have broken out. SCOTUSblog reports on yesterday's filing.

UPDATE: On Nov. 16, the synagogues filed a similar Emergency Application. (Full text). SCOTUSblog has more on the filing.

Colorado Marijuana Ban May Be Applied To Cannabis Ministry

 In People v. Torline, (CO App., Nov. 12, 2020), a Colorado state appellate court held that Colorado’s law barring possession and growing of marijuana does not violate the state or federal Free Exercise rights of defendant, an ordained minister who grows the plants as part of his Cannabis Ministry. The court said in part:

[T]he incorporation of marijuana and marijuana concentrate into religious rituals is subject to regulation on equal terms with secular marijuana use. Colorado law does not penalize such conduct because of its religious character.

British Report Issued On Child Sex Abuse Response By Catholic Church

In Britain on Tuesday the government-authorized Independent Inquiry Into Child Sexual Abuse published its 154-page Investigation Report on the Roman Catholic Church (full text) (press release announcing the report). The Report says in part: 

As we have said previously, faith organisations are marked out from most other institutions by their explicit moral purpose. The Roman Catholic Church is no different. In the context of the sexual abuse of children, that moral purpose was betrayed over decades by those in the Church who perpetrated this abuse and those who turned a blind eye to it. The Church’s neglect of the physical, emotional and spiritual well-being of children and young people in favour of protecting its reputation was in conflict with its mission of love and care for the innocent and vulnerable.

The Bishops' Conference of England and Wales issued a statement welcoming the report. Law & Religion UK has more on the Report.

USCIRF Issues New Report On Persecution of Jehovah's Witnesses

The U.S. Commission on International Religious Freedom has issued a report (full text) on The Global Persecution of Jehovah's Witnesses. The Report says in part:

The governments outlined in this report tend to target Jehovah’s Witnesses as “extremists” or because of their conscientious objection to military service. Those countries that persecute Jehovah’s Witnesses on the basis of vague extremism accusations, however, have failed to provide any evidence to demonstrate that members of the community have ever been involved in any act of violence against the state or its citizens, or called for the overthrow of any such government. On the contrary, the group is doctrinally apolitical and pacifist, and the prosecution of its members as dangerous “extremists” demonstrates the capacity for abuse inherent in vague and sweeping anti-extremism legislation.

Early Supreme Court Review Sought In Church's Challenge To Nevada COVID-19 Limits

In July, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending appeal to a church that was challenging Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting). A Nevada federal district court had upheld the governor's Order. Arguments are scheduled next month in the church's appeal to the 9th Circuit. However, last week the church filed a petition (full text) asking the U.S. Supreme Court to grant review in the case before it is heard by the 9th Circuit. Calvary Chapel Dayton Valley v. Sisolak, (certiorari filed, 11/5/2020). ADF issued a press release announcing the filing.

Suit Challenging Louisiana COVID-19 Limits On Churches Fails

 In Spell v. Edwards, (MD LA, Nov. 10, 2020), a Louisiana federal district court dismissed a suit by a pastor challenging the state's COVID-19 limits on worship services. The court held that plaintiffs' claim for injunctive relief is moot because the specific Proclamation they challenge has expired. The court also dismissed plaintiffs' claim for damages, saying in part:

Governor Edwards's Proclamations have always treated comparable secular institutions similarly to comparable religious institutions.... 

To the extent that Plaintiffs argue that any restrictions on their right to gather violate the U.S. Constitution, they are clearly incorrect.

The Advocate reports on the decision.

Vatican Publishes Lengthy Report On Its Handling Of Abuse Accusations Against Former Cardinal McCarrick

The Vatican yesterday released a 461-page report titled The Holy See's Institutional Knowledge and Decision-Making Related to Former Cardinal Theodore Edgar McCarrick. (Full text). A statement (full text) by Vatican Secretary of State Cardinal Pietro Parolin says in part:

The Report ..., which the Secretariat of State drew up on the Pope's mandate, is published today. It is a substantial text, which has involved a careful examination of all the relevant documentation of the archives in the Holy See, at the Nunciature in Washington and in the dioceses of the United States involved in various ways. The complex investigation was also integrated with information obtained from interviews with witnesses and persons with knowledge of the facts, in order to obtain as complete a picture as possible and a more detailed and accurate knowledge of the relevant information.

We publish the Report with sorrow for the wounds that these events have caused to the victims, their families, the Church in the United States, and the Universal Church.

CBS News, summarizing details of the Report, said in part:

Pope Francis kept a promise by releasing the 461-page report, which attempts to answer a troubling question about McCarrick.

“How a man who had rumors swirling about him, about how he liked to sleep with seminarians could nevertheless rise to the top of the Catholic church,” AP religion writer Nicole Winfield said.

Charming and well-spoken in five languages, McCarrick was a leading figure in American Catholicism for years. He was the Bishop of Metuchen, Archbishop of Newark, and Cardinal of Washington D.C. Now, the 90-year-old is disgraced, defrocked, and widely viewed as a deceiver....

The report says Pope John Paul II believed McCarrick’s denial, after New York’s John Cardinal O’Connor raised red flags in a 1999 letter.

It also faults several bishops for providing incomplete information about McCarrick to the Vatican.

NYPD Settles Suit Over Religious Head Coverings In Mug Shots

 The Hill reported yesterday that the New York City Police Department has settled a lawsuit filed against it by two Muslim women last year challenging NYPD's policy of requiring persons arrested to remove their head coverings for a mug shot. (Full text of complaint in Clark v. City of New York, (SD NY, filed 3/16/2018)). The policy change agreed to in the settlement is described by the news report:

The new policy requires officers to “take all possible steps, when consistent with personal safety” to respect "privacy, rights and religious beliefs," with exceptions for weapons or contraband searches and a risk to safety, and the department will keep track of such instances for at least the next three years.

Suit In Nigeria Challenges Arabic On Currency As Violating Secular Status of Country

This Day reports on a suit heard yesterday by Nigeria's Federal High Court challenging Arabic inscriptions on Nigerian currency. Plaintiff in the suit claims that the inscriptions portray Nigeria as an Islamic state, violating its secular constitutional status. Defending the use of Arabic script, the Central Bank of Nigeria argued that it is not a symbol of Islam, but is merely used to aid non-English speakers who are literate in Arabic and use it in trade.

2nd Circuit Denies Injunction Pending Appeal Of NY Governor's Cluster Zone Limits On Houses of Worship

In Agudath Israel of America v. Cuomo, (2d Cir., Nov. 9, 2020), the U.S. 2nd Circuit Court of Appeals in a 2-1 decision refused to grant an injunction pending appeal to a group of Jewish synagogues and to the Catholic Diocese of Brooklyn in a case challenging New York Gov. Andrew Cuomo's restrictions on spots in which clusters of COVD-19 cases have broken out. (See prior posting.) The majority said in part:

The Court fully understands the impact the executive order has had on houses of worship throughout the affected zones. Nevertheless, the Appellants cannot clear the high bar necessary to obtain an injunction pending appeal. The challenged executive order establishes zones based on the severity of the COVID-19 outbreaks in different parts of New York. Within each zone, the order subjects religious services to restrictions that are similar to or, indeed, less severe than those imposed on comparable secular gatherings....

Thus, while it is true that the challenged order burdens the Appellants’ religious practices, the order is not “substantially underinclusive” given its greater or equal impact on schools, restaurants, and comparable secular public gatherings.

Judge Park dissented, saying in part:

Here, the executive order does not impose neutral public-health guidelines, like requiring masks and distancing or limiting capacity by space or time. Instead, the Governor has selected some businesses (such as news media, financial services, certain retail stores, and construction) for favorable treatment, calling them “essential,” while imposing greater restrictions on “non-essential” activities and religious worship. Such targeting of religion is subject to strict scrutiny.

Hamodia reports on the decision.

Certiorari Denied In Challenge To "So Help Me God" In Citizenship Oath

 Yesterday the United States Supreme Court denied review in Perrier-Bilbo v. United States, (Docket No. 20-349, certiorari denied 11/9/2020). (Order List.) In the case, the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of "so help me God" at the end of the oath of allegiance administered at naturalization ceremonies. (See prior posting.)  Friendly Atheist reports on the Supreme Court's action.

Another Chapter In Challenge To Navy Chaplain Selection Procedures

In In re Navy Chaplaincy, (DC Cir., Nov. 6, 2020), the D.C. Circuit Court of Appeals issued the latest decision in a controversy that has been in litigation for over twenty years.  In the case, non-liturgical Protestant chaplains allege discrimination against them by selection boards that control promotions and early retirements of Navy chaplains. The court said:

the district court made no mistake in granting summary judgment for the Navy on the Plaintiffs’ various First Amendment challenges to its selection board policies. See Chaplaincy, 323 F. Supp. 3d at 35-36, 55-56. With regard to the claims that certain selection board policies violated the Establishment Clause, the Plaintiffs had to show each policy had an unconstitutional effect; that is, the Plaintiffs had to show “the selection policies appear[ed] to endorse religion in the eyes of a reasonable observer.”... To prove an endorsement with statistics, the Plaintiffs had to show a stark disparity in outcomes during the relevant period ..., but the statistics they offered came nowhere close to doing so.

However the court remanded for further proceedings a claim by a chaplain endorsing agency, Associated Gospel Churches, of injury because of the Navy's policy. The trial court had dismissed the claim for lack of standing. The Court of Appeals said in part:

On appeal, AGC argues it has standing in its own right to challenge the Navy’s faith-neutral accession goals. We agree. AGC alleged the Navy’s accession goals resulted in AGC’s chaplain candidates entering the Navy at a significantly lower rate than they otherwise would have. AGC further alleged, because it relies upon its chaplains for financial support, it loses money when its ability to find placements for its candidates is hindered. AGC also alleged its low rate of success placing candidates in the Navy tarnished its reputation. These allegations satisfy all three elements of standing. We express no opinion on the sufficiency of the allegations in any other respect.

The court also reversed and remanded claims that had been dismissed as untimely, ordering the trial court to consider whether equitable tolling applies. Finally, the court held:

Allowing chaplains to sit on chaplain selection boards does not create a de jure denominational preference and does not create excessive entanglement.

Slam Poetry Book In Curriculum Upheld

In Coble v. Lake Norman Charter School, Inc., (WD NC, Nov. 6, 2020), a North Carolina federal district court refused to issue a temporary restraining order to prevent a public charter school from including The Poet X in its ninth-grade language arts curriculum. Plaintiffs claim that inclusion of the book violates the Establishment Clause as well as their free exercise rights. The court said in part:

The sincerity of Plaintiffs’ religious objections to The Poet X is not disputed, nor is the fact that the book deeply offends Plaintiffs. Even accepting, however, that the work is antithetical to the particular Christian beliefs espoused by Plaintiffs, its inclusion in the high school curriculum alone does not violate the Establishment Clause...

The issue is not whether The Poet X embodies anti-Christian elements; the Court assumes that it does. Instead, the issue is whether its selection and retention by school officials “communicat[es] a message of government endorsement” of those elements....

Similarly, inclusion of The Poet X as representative of a particular literary genre (slam poetry / verse novel) neither religiously inhibits nor instills, but simply informs and educates, students on a particular social outlook forged in the crucible of Afro-Latinx urban life. To include the work in the curriculum, without further evidence of the school’s endorsement, no more communicates governmental endorsement of the author’s or characters’ religious views than to assign Paradise Lost, Pilgrim’s Progress, or The Divine Comedy conveys endorsement or approval of Milton’s, Bunyan’s, or Dante’s Christianity....

Recent Articles of Interest

From SSRN:

• Marcello Neri, Pope Francis’ Constitutionalism and Catholic Politics, (University of Milano-Bicocca School of Law Research Paper No. 20-04 (2020).
• J. Mark Ramseyer, Contracting for Compassion in Japanese Buddhism, (Harvard Law School John M. Olin Center Discussion Paper No. 1039, 2020).
• Barry Winston Bussey, Contagion: Government Fear of Religion during the COVID-19 Crisis, (Revista General de Derecho Canónico y Derecho Eclesiástico del Estado, 54 (2020)).
• Mahdi Attar Kashani, The Concept of Right and Its Differences With Similar Concepts in Islamic Jurisprudence, (September 12, 2020).
• Stephen Cranney, Are Christians More Likely to Invoke RFRA—and Win—than Other Religions since Hobby Lobby?, (Mercer Law Review Forthcoming).
• Brian Miller, Religion and Local Power, (Mercer Law Review Forthcoming).
• David Kenny, The Virtues of Unprincipled Constitutional Compromises: Church and State in the Irish Constitution, (European Constitutional Law Review (Forthcoming)).
• Afrasiab Ahmed Rana, Essentials of a Valid Contract: A Comparative Study of Sighah in Islamic Law and the Agreement in the Contract Act, 1872, (November 1, 2020).

UAE Liberalizes Personal Status and Penal Laws

The United Arab Emirates today announced liberalizing changes in its Sharia-based personal laws. The Hill, The National, and Emirates News Agency all report on the changes made by Presidential Decree to the Personal Status, Civil Transactions, Penal Code and Criminal Procedural laws.  The changes, many involving protections for foreigners living in the UAE, take effect immediately. They include:

• Repeal of the provisions allowing more lenient sentences for so-called "honor crimes".
• Divorces of foreigners who were married abroad will be governed by the laws of their home country instead of Sharia law.
• The law of a person's home country, rather than Sharia law, will govern division of assets on death where no will is left.
• Attempted suicide is decriminalized.
• "Good Samaritans" who intervene to help another person will not be held accountable for the person's injury or death.
• More severe punishments are set for harassment of women.
• Death penalty is prescribed for rape of a minor or of someone of limited mental capacity.
• Alcohol consumption in authorized areas by adults who do not have a license to consume liquor is decriminalized. Typically Muslims have been denied a license.
• Cohabitation by unmarried couples is decriminalized.
• Translators will be provided in courts for defendants and witnesses, and evidence involving indecent acts will not be made public.

Suit Against Trump For Misleading Christians Is Dismissed For Lack of Standing

In Kelly v. Trump, (Del. Chancery, Nov. 2, 2020), a Delaware Chancery Court Master recommended dismissing as legally frivolous a suit against President Donald Trump alleging that he violated plaintiff's free exercise and Establishment Clause rights. The court said that plaintiff "has not shown an actual or concrete injury to her caused by Trump’s conduct....  Her contentions are too remote and vague to be actionable."  The court described plaintiff's allegations in part as follows:

Kelly’s main theory of her case is that Trump creates the illusion of being a devout Christian, while engaging in acts that Kelly contends are against the main tenets of Christianity. She claims that his actions substantially burden and injure her “free exercise of religion”... by [his] increased threat of government sponsored religious persecution.... Kelly alleges that ... he is misleading people, deceiving them to sin, and dooming them to hell. The primary harm Kelly claims is that, because Trump is leading people to hell, Kelly will not be able to love them for eternity. She also alleges that she is persecuted ... because of Trump’s support for one religious belief, and suppression of others....

Court Refuses Stay of Order On Creche Display

In Woodring v. Jackson County, Indiana, (SD IN, Nov. 3, 2020), an Indiana federal district court refused to stay its final judgment pending appeal in a case challenging the annual display of a creche on the county courthouse lawn.  The court said in part:

Because the crèche straddles the sidewalk subdividing the lawn and the more-secular figures are placed on the periphery, the venerable magi and hallowed manger share center stage. Id. Since the primary focus of the display is a celebration of the birth of Jesus Christ, a reasonable observer would believe that Jackson County was endorsing a particular religion, that is, Christianity. Id. Moreover, the display—which had consisted solely of the Nativity scene for almost twenty years—expanded to include the secular Christmas figures only after Jackson County received a letter from the Freedom from Religion Foundation questioning whether the display was constitutional.... A reasonable observer aware of this "history and context" would view the addition of the ancillary figures as a reactionary effort to obscure the display's religious essence.

(See prior related posting.)

10th Circuit: Plaintiff Lacks Standing To Challenge Kansas Vaccination Requriement

 In Baker v. USD 229 Blue Valley, (10th Cir., Nov. 3, 2020), the U.S. 10th Circuit Court of Appeals dismissed for lack of standing a mother's lawsuit challenging Kansas' vaccination law which requires school children to be vaccinated, but allows religious exemptions. Plaintiff's son, S.F.B., was granted a religious exemption. The court rejected plaintiff's claim that nevertheless she suffered injury. The court said in part:

Ms. Baker’s unusual standing theory falls outside any recognized notion of injury based on the potential enforcement of a law. She argues the District misapplied Kansas law in granting the religious exemption to S.F.B. in response to the Bakers’ statement. She asserts that if the District would apply the law correctly, it would revoke the religious exemption, injuring her and S.F.B. From this she contends there is a credible injury in fact....

First, we evaluate Ms. Baker’s injury argument that the District may revoke S.F.B.’s religious exemption because Kansas law compels that result. We find that Ms. Baker has not shown a concrete, imminent, and non-speculative injury in fact.

Second, we consider Ms. Baker’s contention that Kansas law inhibits her from exercising certain “options” for S.F.B. including home schooling and child care. We reject this theory because Ms. Baker alleges only a “some day” intention to exercise these options that is insufficient to demonstrate an injury in fact.

New Developments In the Abortion Rights Controversy

The past few days have brought several developments in the battle over abortion rights. In Colorado, an Initiative measure on the ballot that would have banned abortions after 22 weeks of gestation was defeated 59% to 41% (89% of precincts reporting). In Louisiana voters approved by a margin of 62% to 38% an amendment to the state constitution providing "To protect human life, nothing in this constitution shall be construed to secure or protect a right to abortion or require the funding of abortion."

Meanwhile last week, the Alabama Supreme Court in Magers v. Alabama Women's Center Reproductive Alternatives, LLC, (LA Sup. Ct., Oct. 30, 2020), dismissed a wrongful death action brought by the father of an aborted 6-week old fetus against a clinic that provided the mother with a pill to induce a medication abortion. The trial court dismissed the suit, and the state Supreme Court dismissed because appellant did not comply with the procedural requirements for the type of brief that needs to be submitted for an appeal. However Justice Mitchell, joined by 3 other justices wrote concurring opinion that said in part:

I write separately, however, to state my view that Roe v. Wade ... and Planned Parenthood of Southeastern Pennsylvania v. Casey ... are due to be overruled by the United States Supreme Court....

First, the central holding of Roe -- that there is a constitutional right to have an abortion based on a judicially created trimester framework -- has no grounding in the text of the United States Constitution....

Second, the right to have an abortion has no foundation "so rooted in the traditions and conscience of our people as to be ranked as fundamental." Snyder v. Massachusetts, 291 U.S. 97, 105 (1934).

[Thanks to Scott Mange for the lead as to Alabama.]

Supreme Court Will Hear Oral Arguments Today In Catholic Foster Care Agency Case

Today, the U.S. Supreme Court will hear oral arguments in Fulton v. City of Philadelphia. 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 and briefs filed in the case, as well as to commentary on the case, are at the SCOTUSblog case page. When the transcript and/or recording of oral arguments become available later today, I will post a link to them.

UPDATE: Here is the transcript of the oral arguments, and here is the audio of the arguments.

Religious Voter Trends To Watch In Today's Election

A Religion News Service analysis suggests 7 religious voter trends to watch for as election results begin to be reported today: Black Protestant turnout; Muslim turnout in Michigan; Jewish turnout in Pennsylvania and Florida; Shifts among white mainliners and Catholics in the Rust Belt; Small but important shifts among Hispanic and Latino religious voters; Any movement among white evangelicals; and Latter-day Saints in Arizona.

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.