Happy New Year 2021!

Dear Religion Clause Readers:

Happy New Year 2021! I hope you find Religion Clause a valuable resource in following the intersection of religion with law and politics. At a time in which factual accuracy is increasingly the victim of ideology, I hope that Religion Clause has built a reputation for reliability.  I strive for objectivity in my posts, and provide extensive links to the primary sources underlying each post for those who wish to fact check or explore more deeply the developments I highlight.

I am pleased that my regular readers span the political and religious spectrum and include law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

We have all endured one of the most trying years in our lives because of the unprecedented Coronavirus pandemic.  Perhaps surprisingly, the earliest pandemic-related litigation has been dominated by religious liberty disputes.  Governors and courts have been placed in the uncomfortable position of having to decide, for example, whether congregate prayer is as essential as in-person grocery shopping. The coming months may see another round of religious liberty litigation surrounding the roll-out of COVID vaccines if, as seems likely, employers, airlines, schools and others begin to mandate vaccinations.

2021 brings a reconstituted Supreme Court and a new Administration which face ongoing as well as newly-developing religious liberty controversies.  In the past year, many of the most highly charged issues that divide our country politically have continued to divide it along religious lines.  This reality creates difficult challenges for the Supreme Court as well as for the other branches of government.

All of this illustrates the saliency of religion in life, law and politics in the U.S. and around the world. Religion Clause will continue to cover all the legal developments in these areas.  

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes as you face the challenges that 2021 brings to us!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

May you have a healthy 2021,

Howard Friedman

Argentina Legislature Votes To Legalize Early Term Abortion

As reported by NPR, Argentina's Senate yesterday voted 38-29 (with one abstention) to approve the Voluntary Interruption of Pregnancy Bill which allows abortions during the first 14 weeks of pregnancy. The Chamber of Deputies, the lower house of  Argentina's Congress, approved the bill on Dec. 11 by a vote of 131-117 (with 6 abstentions). Argentine President Alberto Fernández says he will sign the bill. Last month, Pope Francis wrote opponents of the bill expressing his opposition to the legislation. (ABC News).

President Trump Issues Proclamation Recognizing Anniversary of Martyrdom of St. Thomas Becket

Earlier this week, President Trump issued a lengthy Proclamation (full text) recognizing Dec. 29th as the 850th Anniversary of the Martyrdom of Saint Thomas Becket. The Proclamation reads in part:

Before the Magna Carta was drafted, before the right to free exercise of religion was enshrined as America’s first freedom in our glorious Constitution, Thomas gave his life so that, as he said, “the Church will attain liberty and peace.”...

When the Archbishop refused to allow the King to interfere in the affairs of the Church, Thomas Becket stood at the intersection of church and state. That stand, after centuries of state-sponsored religious oppression and religious wars throughout Europe, eventually led to the establishment of religious liberty in the New World....

As Americans, we were first united by our belief that “rebellion to tyrants is obedience to God” and that defending liberty is more important than life itself. If we are to continue to be the land of the free, no government official, no governor, no bureaucrat, no judge, and no legislator must be allowed to decree what is orthodox in matters of religion or to require religious believers to violate their consciences....

To honor Thomas Becket’s memory, the crimes against people of faith must stop, prisoners of conscience must be released, laws restricting freedom of religion and belief must be repealed, and the vulnerable, the defenseless, and the oppressed must be protected.

Trump Executive Order Provides School Choice Funding For Disadvantaged Students Lacking In-Person Schools

President Trump yesterday issued an Executive Order allowing states to use funds from Community Services Block Grants to provide scholarships to private or parochial schools, or for home schooling or or other educational services, for disadvantaged students whose public schools do not offer in-person classes during the COVID pandemic. As reported by Politico:

The move comes after the $900 billion coronavirus relief deal ... that Trump signed on Sunday excluded many of the school choice provisions that his administration and GOP lawmakers had sought to include in that sweeping legislation.

The Dec. 28 Executive Order on Expanding Educational Opportunity Through School Choice (full text) provides in part:

The Secretary of Health and Human Services shall take steps, consistent with law, to allow funds available through the Community Services Block Grant program to be used by grantees and eligible entities to provide emergency learning scholarships to disadvantaged families for use by any child without access to in-person learning.  These scholarships may be used for:

(i)    tuition and fees for a private or parochial school;

(ii)   homeschool, microschool, or learning-pod costs;

(iii)  special education and related services, including therapies; or

(iv)   tutoring or remedial education.

Michigan Supreme Court Affirms Narrow Reading of "No-Aid" Clause

In Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI Sup. Ct., Dec. 28, 2020), the Michigan Supreme Court by an evenly divided 3-3 decision affirmed a state Court of Appeals decision holding that there are no state or federal constitutional bars to state reimbursement of private and parochial schools for the costs they incur in complying with state health, safety, and welfare mandates such as state asbestos regulations and vehicle inspections. At issue was whether the no-aid provision of Art. 8 Sec. 2 of the Michigan Constitution only bars aid for educational services, or whether it also covers other reimbursements to non-public schools. Detroit News reports on the decision.

2nd Circuit Invalidates New York's Fixed Capacity Limits For Houses of Worship

Last month, the U.S. Supreme Court in a widely noted decision enjoined while appeals are pending New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. (See prior posting.) Now the U.S. 2nd Circuit Court of Appeals has come down with a decision in that pending appeal.  In Agudath Israel of America v. Cuomo, (2nd Cir., Dec. 28, 2020), (in a decision that also covers the suit brought by the Catholic Diocese of Brooklyn), the court held that these limits imposed on houses of worship are subject to strict scrutiny, and that they are not narrowly tailored to stem the spread of COVID-19. It remanded the cases to the district court, instructing it to issue a preliminary injunction. It also ordered the district court to determine in the first instance whether alternative limits in the governor's Order of 25% and 33% of capacity can satisfy strict scrutiny. In reaching its conclusion, the court said in part:

[T]he [Governor's] Order does not impose generally applicable public-health guidelines, like requiring masks and distancing or limiting capacity by 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. That lack of general applicability is also subject to strict scrutiny.

Further, although the Governor asserts that “all” activities not restricted by the Order present lesser risks of COVID-19 transmission than religious worship, he has never claimed that the unrestricted category of “essential” activities was created based on transmission risk. Instead, “[t]he only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as ‘essential’ as what happens in secular spaces.”

Reuters reports on the decision.

Indiana Fetal Tissue Disposition Law Challenged Again

Suit was filed last week in an Indiana federal district court challenging the constitutionality of Indiana's statutes that require healthcare facilities to dispose of embryonic and fetal tissue from abortions and miscarriages by burial or cremation, regardless of patients’ wishes. The complaint (full text) in Jane Doe No. 1. v. Attorney General of Indiana, (SD IN, filed 12/21/2020), alleges in part:

The Tissue Disposition Laws violate fundamental tenets of the First and Fourteenth Amendments by compelling abortion and miscarriage patients—and their healthcare providers— to act in accordance with the State’s view of personhood—namely, that an embryo is the ontological and spiritual equivalent of a person—regardless of their own opinions about the status of developing human life. Indiana’s effort to create orthodoxy on a deeply polarizing issue that implicates the most profound aspects of religion, culture, and ideology is constitutionally prohibited.

The U.S. Supreme Court in 2019 (without hearing oral argument) upheld the Indiana tissue disposition laws in a case which did not raise the constitutional challenges put forward in this complaint. (See prior posting.) Christian Headlines reports on last week's filing.

Court Refuses To Enjoin Mask Requirement For Religious School Students

In Resurrection School v. Gordon, 2020 U.S. Dist. LEXIS 242315 (WD MI, Dec. 16, 2020), a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. Rejecting that claim, the court said in part:

The order is clear: individuals over the age of five must wear a mask when they are out in public. Therefore, given the near-universal mask requirement, the Court finds nothing in the contours of the order at issue that correlate to religion, and finds that the order "cannot be plausibly read to contain even a hint of hostility towards religion." ... The Court finds that the challenged face-mask requirement is neutral and generally applicable. Any burden on Plaintiffs' religious practices is incidental, and therefore, the orders are not subject to strict scrutiny.... Plaintiffs have failed to establish a liklihood of success on the merits of their First Amendment claim.

Recent Articles of Interest

 From SSRN:

• Alberto Alemanno & Nicolas Michel de Sadeleer, Humanising Animal Slaughter Need Not Infringe Religious Freedom (Amicus Curiae Brief in C-336/19 Centraal Israëlitisch Consistorie Van België and Others),(October 21, 2020).
• Daniel Figueroa, Diminishing Religious Liberties: COVID Under the First Amendment, (December 22, 2020).
• Alexandre Godoy Dotta, Vulnerability of Public Policies to the LGBT+ Community and Judializaction of Fundamental Rights Guaranteed by the Constitution of the Federative Republic of Brazil 1988, (November 25, 2020).
• Laura D. Hermer, COVID-19, Abortion, and Public Health in the Culture Wars, (Mitchell Hamline Law Review, Vol. 47 (2020)).
• Leonore Carpenter, Bostock v. Clayton County, Georgia, and its Effect on Pennsylvania's LGBTQ Community, (91 Pa. B.A. Q. 103 (2020)).
• Michael Kopel & Marco A. Marini, Mandatory Disclosure of Managerial Contracts in Nonprofit Organizations, (FEEM Working Paper No. 26 (2020)).

From SmartCILP:

• Robert F. Cochran, Jr., Lawyers, Religious Faith, and Virtues: Reflections on Tom and Nancy Shaffer, (10 St. Mary's Journal on Legal Malpractice & Ethics xviii-xxvii (2019)).
• Russell G. Pearce, A Jewish Perspective on Tom Shaffer: Zecher Tzadik Livracha (May the Memory of the Righteous Be a Blessing), 10 St. Mary's Journal on Legal Malpractice & Ethics liv-lxii (2019).
• Rene Reyes, Masterpiece Cakeshop and Ashers Baking Company: A Comparative Analysis of Constitutional Confections, 16 Stanford Journal of Civil Rights & Civil Liberties 113-146 (2020).
• Frank S. Ravitch, Complicity and Discrimination, [Abstract], 69 Syracuse Law Review 491-542 (2019).
• Emilie Kao & Monica G. Burke, Masterpiece Cakeshop and Authentic Pluralism in a Post-Obergefell World, 24 Texas Review of Law & Policy 97-134 (2019).

Top 10 Religious Liberty and Church State Developments of 2020

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. The selection of top stories obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks-- as one of the most unusual years we have all experienced comes to an end:

(1) Challenges by houses of worship and religious schools to the  limits imposed on them by COVID-19 health orders dominated much of the year. Numerous state and federal courts, including the Supreme Court were called upon to balance free exercise rights against the life and health of community members.

(2) The death of Justice Ruth Bader Ginsburg and confirmation of Justice Amy Coney Barrett to take her seat on the Supreme Court promised to continue the Court's movement toward expanded free exercise rights.

(3) The U.S. Supreme Court's decision in Bostock v. Clayton County, Georgia held that the provision of Title VII of the 1964 Civil Rights Act which prohibits discrimination in employment "because of sex" protects gay, lesbian and transgender individuals.

(4) The Supreme Court in Espinoza v. Montana Department of Revenue, held that Montana's exclusion of religious schools from its scholarship tax credit program violates the Free Exercise clause of the U.S. Constitution.

(5)  In June Medical Services L.L.C. v. Russo, the U.S. Supreme Court struck down Louisiana's law that requires doctors at abortion clinics to hold active admitting privileges at a hospital within 30 miles of the clinic.

(6) The Court of Justice of the European Court upheld a law enacted in Belgium's Flemish region that effectively bans Halal and Kosher Slaughter.

(7) The U.S. Supreme Court in Tanzin v. Tanvir held that the Religious Freedom Restoration Act permits suits for damages against federal officials in their individual capacities.

(8) The Department of Health and Human Services adopted a final rule that rolled back health care anti-discrimination coverage in federally supported services. The prior rules protected transgender individuals and those who had accessed abortion services.

(9) In Our Lady of Guadalupe School v. Morrissey-Berru, the U.S. Supreme Court held that two elementary school teachers in separate Catholic schools are covered by the "ministerial exception" so that they cannot sue for employment discrimination.

(10) The U.S. Supreme Court in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania rejected challenges to the Trump Administration's expanded conscience exemptions from the Affordable Care Act's contraceptive coverage mandate.

President and First Lady Issue Christmas Greetings Via Video

President Trump and First Lady Melania Trump issued Christmas greetings in a video posted to the President's Twitter account yesterday.

Universal Life Church Can Move Ahead In Challenge To Tennessee Ban On Marriages By Those Ordained Online

 In Universal Life Church Monastery Storehouse v. Nabors, (MD TN, Dec. 22. 2020), a Tennessee federal district court held that the Universal Life Church and two of its ministers have standing to challenge Tennessee's ban on solemnization of marriages by clergy who received online ordination. It also held that the state Attorney General, District Attorney Generals and County Clerks (but not the Governor) are proper defendants.

Appellate Court Upholds New York City Measles Vaccination Order

 In C.F. v. New York City Department of Health and Mental Hygiene, (App. Div., Dec. 23, 2020), a New York state appellate court upheld New York City's 2019 Order requiring everyone residing in certain areas of Brooklyn to be vaccinated against measles. An outbreak of the disease had occurred in that area. The court said in part:

The resolution was within the authority of the Board of Health of the Department of Health and Mental Hygiene to make and the resolution itself did not violate any right of the petitioners, including their freedom of religion....

The petitioners profess to hold religious beliefs that hold that a healthy body should not assimilate foreign objects, including vaccine ingredients...

While there are recent decisions of the United States Supreme Court which have reflected a greater solicitude to claims for religious exemptions from neutral, generally applicable laws than had previously been articulated (see e.g. Little Sisters of the Poor Saints Peter & Paul Home v Pennsylvania...; Burwell v Hobby Lobby Stores, Inc....), those cases were not decided under the First Amendment, but under the federal Religious Freedom Restoration Act of 1993....

The petitioners rely on language from Justice Gorsuch's concurrence in Masterpiece Cakeshop, joined by Justice Alito, which characterized the Smith rule as "controversial in many quarters".... While it is certainly conceivable that the United States Supreme Court may, in some future case, reconsider the standard for addressing a religious objector's challenge to neutrally applicable laws, we are bound to apply the constitutional principles as they now exist, rather than engage in a projection as to what principles may evolve in the future....

We believe that the Free Exercise Clause does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability, even if the law has the incidental effect of burdening a particular religious practice.

Court Again Refuses To Enjoin California's COVID Limits On Church Services

In a case in which the U.S. Supreme Court previously refused to grant injunctive relief, a California federal district court again denied a preliminary injunction against California's COVID orders to a church seeking to hold indoor services. In South Bay United Pentecostal Church v. Newsom, (SD CA, Dec. 21, 2020), the court said in part:

In drawing this difficult balance between religious liberty and public health, the Court must follow the higher courts’ precedents, when the precedents seem to change course as quickly as the various pandemic restrictions. Admittedly, this has been a rapidly evolving—and escalating—pandemic. And in this very case, the Supreme Court declined to intervene after the Court refused to enjoin California’s prior regulation. Now, by all measures, the pandemic is worse and more out of control in Southern California than when that decision was made. Nevertheless, the Court is tasked with deciding whether Chief Justice Roberts’ rationale for not intervening in this case has now “expired,” as Justice Gorsuch’s recent concurrence in another case suggests. See Roman Catholic Diocese of Brooklyn v. Cuomo...

California has carefully designed the different exemptions to match its goal of reducing community spread, based on a neutral, seven-factor risk analysis. The Court does not find that California’s Regional Stay at Home Order is underinclusive as to exceed the boundaries drawn by the First Amendment. Therefore, based on the record before the Court, Plaintiffs are not likely to show that the Regional Stay at Home Order restricts more than is necessary to advance the California’s compelling interest in reducing community spread.

Fox5 News reports on the decision.

1st Circuit: Church's Appeal of TRO Denial Is Dismissed

 In Calvary Chapel of Bangor v. Mills, (1st Cir., Dec. 22, 2020), the U.S. 1st Circuit Court of Appeals dismissed a church's interlocutory appeal of the district court's denial of a temporary restraining order against enforcement of the Maine governor's COVID Orders that prohibited the gathering of more than ten people for faith-based events. The court concluded that denial of a temporary restraining order-- before the district court rules on a preliminary injunction request-- here is not appealable, even though both parties contended that this case fell within an exception to that rule.  The court said in part:

The Chapel contends that the district court's decision to deny it a temporary restraining order functionally precluded any possibility of a preliminary injunction. This contention elevates hope over reason....

... [T]he absence of immediate appealability — like the denial of the temporary restraining order itself — will not cause serious harm. Given the gravity of the situation and the fact that events remained in flux, we discern no sufficient basis for finding that the Chapel can satisfy the second of the three requirements for immediate appealability of a temporary restraining order. In this regard, we deem it important that the Chapel retained other means to organize worship services for its congregants, including the sponsorship of online worship services, the holding of drive-in services, and the hosting of gatherings of ten or fewer people.

6th Circuit Refuses Injunction Pending Appeal Of Religious School Closure Order

 In Pleasant View Baptist Church v. Beshear, 2020 U.S. App. LEXIS 40077 (6th Cir., Dec. 21, 2020), the U.S. 6th Circuit Court of Appeals refused to issue a preliminary injunction pending appeal of a COVID Order by the Kentucky governor which, among other things, barred in-person instruction in  religious schools until January 4. The court said that the Order was about to expire of its own terms. Judge Donald filed a concurring opinion which expressed concern with one of plaintiff's arguments:

Fundamental to Christian School Plaintiffs' argument in this emergency appeal is that under the Free Exercise Clause of the First Amendment, EO 2020-969 burdens their "hybrid rights." That is, the order burdens both their Free Exercise rights and other constitutional rights, a combination that, they contend, triggers an exception to Smith and subjects even neutral laws of general applicability to strict scrutiny....

We have had no reason to re-consider our view that Smith's discussion of "hybrid rights" was anything but dicta.

The Constitution is not a mixing bowl for rights that when considered in the aggregate are entitled to a higher level of scrutiny compared to when those exact same rights are viewed in isolation.

... I provide the foregoing analysis ... to highlight what I see as a troubling trend in the use of the Court's emergency docket....

I do not see an emergency appeal as the proper forum to advocate for abrupt and sweeping change to well-settled federal law.

On Remand From SCOTUS, California COVID Limits On Worship Services Again Upheld

In Harvest Rock Church, Inc. v. Newsom, (CD CA, Dec. 21, 2020), a California federal district court, in a case on remand from the U.S. Supreme Court, upheld California's COVID restrictions on houses of worship. The Supreme Court had called for reconsideration in light of its recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. The district court, distinguishing both Supreme Court and 9th Circuit cases, said in part:

The law remains that courts must first assess whether a law is “neutral or generally applicable.” Smith, 494 U.S. at 881. The Court finds that California’s Blueprint is. The Blueprint offers something the New York and Nevada Orders did not: the ability to legally congregate in unlimited numbers for worship—so long as that worship occurs outside. In so doing, the Blueprint treats religious activity better than comparable secular activity and even better than essential services. This is distinct from both the New York and Nevada restrictions and compels the conclusion that the Blueprint is neutral....

California’s Blueprint is also painstakingly tailored to address the risks of Covid-19 transmission specifically....

The First Amendment has not taken a sabbatical. Californians may still worship, attend services, pray, and otherwise exercise their religious freedoms. They just may not do so in ways that significantly increase the likelihood of transmission of a virus which has claimed more than three hundred thousand American lives in less than one year. The Constitution is not a suicide pact. The First Amendment may not be used to make it one.

Courthouse News Service reports on the decision.

UPDATE: Over the objection of Judge O'Scannlain, the U.S. 9th Circuit Court of Appeals in Harvest Rock Church, Inc. v. Newsom, (9th Cir., Dec. 23, 2020), set a briefing schedule for the Church's motion for an injunction pending appeal that failed to grant temporary relief by Christmas.

New Hampshire Supreme Court Says State Constitution Requires Strict Scrutiny of Free Exercise Infringements

In State of New Hampshire v. Mack, (NH Sup. Ct., Dec.  22, 2020), the New Hampshire Supreme Court held that the state Constitution's elaborate guarantee of free exercise of religion so long as one does not "disturb the public peace" should be read to require strict scrutiny.  The court vacated a trial court's refusal to dismiss a drug prosecution brought against defendant who was a member of the Oklevueha Native American Church. Defendant was convicted of possession of psilocyn and psilocybin for use in religious rituals. The court concluded that the state constitution gives greater free exercise protection against burdens from neutral generally applicable laws than does the U.S. Constitution under the Smith case. The court said in part:

We ... conclude that when religious practices violate a generally applicable law, our State Constitution ... demands that “there . . . be a balancing of [the] competing interests.” ...  [W]e choose to adhere to our traditional formulation of strict judicial scrutiny — requiring the State to demonstrate that its action is “necessary to achieve a compelling governmental interest and narrowly tailored to meet that end.” ... Accordingly, under Part I, Article 5, once an individual establishes that the government action substantially burdens his or her sincere religious practice, ... the burden shifts to the State to show both that the government action is necessary to achieve a compelling government interest, and is narrowly tailored to meet that end....

The Union Leader reports on the decision.

Catholic Schools' Suit Against COVID Closings Is Moot

In Michigan Association of Non-Public Schools v. Gordon, (WD MI, Dec. 21, 2020), a Michigan federal district court dismissed as moot a challenge to Michigan's COVID-19 Order temporarily closing all high schools to in-person learning. The suit, brought by a group of Catholic schools, claimed that the Order violated their 1st and 14th Amendment rights. That Order expired on Dec. 20 and a new Order now allows high schools to reopen. Detroit Free Press reports on the decision.

Massive Tax and Spending Bill Passed By Congress Includes Issues of Interest on Religion

As reported by the Washington Post, the House and Senate yesterday evening both passed a wide-ranging 5,593-page government funding and pandemic economic relief bill after Congressional leaders finally reached a compromise on the legislation. The bill now goes to the President for his signature.

Here is the full text of the bill, titled Consolidated Appropriations Act, 2021. Demonstrating the vast array of topics included in the bill are two unrelated provisions of particular interest to those who follow law and religion issues. The first makes it clear that churches and religious organizations can be eligible to participate in the Paycheck Protection Program Loans program:

SEC. 311. PAYCHECK PROTECTION PROGRAM SECOND DRAW LOANS ...

c) ELIGIBLE CHURCHES AND RELIGIOUS ORGANIZATIONS

(1) SENSE OF CONGRESS.—It is the sense of Congress that the interim final rule of the Administration entitled ‘‘Business Loan Program Temporary Changes; Paycheck Protection Program’’ (85 Fed. 11 Reg. 20817 (April 15, 2020)) properly clarified the eligibility of churches and religious organizations for loans made under paragraph (36) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)).

(2) APPLICABILITY OF PROHIBITION.—The prohibition on eligibility established by section 120.110(k) of title 13, Code of Federal Regulations, or any successor regulation, shall not apply to a loan under paragraph (36) of section 7(a) of the Small Business Act (15 U.S.C. 636(a)).

The second provision of interest is Subtitle E, Tibetan Policy and Support Act of 2020, which among other things focuses on religious persecution in Tibet. It provides in part:

SEC. 342. STATEMENT OF POLICY REGARDING THE SUCCESSION OR REINCARNATION OF THE DALAI LAMA....

(b) STATEMENT OF POLICY.—It is the policy of the United States that—

(1) decisions regarding the selection, education, and veneration of Tibetan Buddhist religious leaders are exclusively spiritual matters that should be made by the appropriate religious authorities within the Tibetan Buddhist tradition and in the context of the will of practitioners of Tibetan Buddhism;

(2) the wishes of the 14th Dalai Lama, including any written instructions, should play a key role in the selection, education, and veneration of a future 15th Dalai Lama; and

(3) interference by the Government of the People’s Republic of China or any other government in the process of recognizing a successor or reincarnation of the 14th Dalai Lama and any future Dalai Lamas would represent a clear abuse of the right to religious freedom of Tibetan Buddhists and the Tibetan people.

(c) HOLDING CHINESE OFFICIALS RESPONSIBLE FOR RELIGIOUS FREEDOM ABUSES TARGETING TIBETAN BUDDHISTS.—It is the policy of the United States to take all appropriate measures to hold accountable senior officials of the Government of the People’s Republic of China or the Chinese Communist Party who directly interfere with the identification and installation of the future 15th Dalai Lama of Tibetan Buddhism, successor to the 14th Dalai Lama, including by—

(1) imposing sanctions pursuant to the Global Magnitsky Human Rights Accountability Act (22 U.S.C. 2656 note); and

(2) prohibiting admission to the United States under section 212(a)(2)(G) of the Immigration and Nationality Act (8 U.S.C. 1182(a)(2)(G)).

Recent Articles and Books of Interest

 From SSRN:

• Daniel Peterson, The Majelis Ulama Indonesia and its Role in the Ahok Conviction, (Australian Journal of Asian Law, Vol. 21, No. 1, Article 6, 2020).
• Steven K. Green, No Aid, No Agency, (William & Mary Bill of Rights Journal, Forthcoming).
• Steven K. Green, The 'Irrelevance' of Church-State Separation in the Twenty-First Century, (Syracuse Law Review, Vol. 69, 2019).
• Steven K. Green The Legal Ramifications of Christian Nationalism, (Roger Williams University Law Review, Forthcoming).
• Christopher R. Green, What Has Athens to Do With Philadelphia,(September 30, 2020).
• Gary J. Simson, The Uncertain Good of Overruling Employment Division v. Smith, (Emory University Canopy Forum on the Interactions of Law and Religion, 2020).
• Jennifer Levi & Kevin M. Barry, Transgender Tropes & Constitutional Review, (Yale Law & Policy Review, Vol. 37, p. 589, 2019).
• Ferry Muhammadsyah Siregar & Oman Fathurohman, Religious Leader, Tafsir, and Salafism in Indonesia: The Role of Religious Leader in the Study of Tafsir in Pesantren Salafi in Java, (September 18, 2020).

From SmartCILP:

• Nancy J. Whitmore, Extending the Roberts Court's Affirmation of Individual Expressive Rights to the First Amendment Claim in Masterpiece Cakeshop, [Abstract], 12 Elon Law Review 105-136 (2020).

Recent and Forthcoming Books:

• Robert F. Cochran, Jr. & Michael P. Moreland, Christianity and Private Law, (Routledge, Nov. 22, 2020) (Reviewed at Canopy Forum).
• Jack N. Rakove, Beyond Belief, Beyond Conscience-- The Radical Significance of the Free Exercise of Religion, (Oxford University Press, Aug. 3, 2020).
• Dvora Hacohen, To Repair a Broken World-- The Life of Henrietta Szold, Founder of Hadassah, (Harvard University Press, May 11, 2021).

Federal Court Refuses To Enjoin State COVID Enforcement Proceedings Against Church

In Calvary Chapel San Jose v. Cody, (ND CA, Dec. 18, 2020), a California federal district court, applying the Younger abstention doctrine, refused to issue a temporary restraining order against state court proceedings enforcing a state court's preliminary injunction against a church. The church "blatantly flouted" COVID restrictions on worship service, continuing to hold indoor services for large numbers of worshipers without effectively enforcing mask or social distancing requirements. In refusing the TRO, the court said in part:

Our Federalism properly places this dispute in the more-than-capable hands of the Santa Clara County Superior Court.

Courthouse News Service reports on the decision.

Suit By Fired Parish Office Manager Dismissed On Ecclesiastical Abstention Grounds

In Napolitano v. St. Joseph Catholic Church, (FL App., Dec. 18, 2020), a Florida state appellate court dismissed on ecclesiastical abstention grounds a suit by a church parish's office manager. At issue was whether a new parish priest could fire the office manager after the prior priest, just before his ouster, had on behalf of the parish entered a 4-year contract with the office manager. In affirming the trial court's dismissal of the case, the court said in part:

At the heart of the dispute between Napolitano and the Church Defendants is whether Father Brown had the authority under Canon Law to obligate successor administrations of St. Joseph to retain his chosen employees. Simply put, Napolitano has requested that a secular court examine a hierarchical religious organization and determine who has the authority to speak and act on its behalf. Whether based on actual or apparent authority, Napolitano’s request would require a court to impermissibly wade into ecclesiastical polity, in violation of the First Amendment....

Whether Father Brown had the actual or apparent authority to form the employment agreement and bind St. Joseph and the Diocese, even after his removal, is a quintessentially religious controversy—one that would require judicial inquiry into internal church matters—and constitutes a subject matter of which secular courts lack jurisdiction.

DOJ Sues Vermont Hospital For Violating Church Amendments

The Justice Department announced this week that it filed suit in a Vermont federal district court against the University of Vermont Medical Center for violating the Church Amendments that protect medical workers from being required to assist with abortions in violation of their religious or moral convictions. The complaint (full text) in United States v. University of Vermont Medical Center, (D VT, filed 12/16/2020) alleges in part:

Defendant has scheduled conscience objectors, including nurses, to assist with elective abortions despite specific and repeated requests from those personnel not to be assigned to elective abortions because of their religious beliefs or moral convictions. Moreover, Defendant has repeatedly assigned conscience objectors to participate in elective abortions without giving advance notice of the nature of the procedure.

European Court Upholds Flemish Restrictions on Halal and Kosher Slaughter

In a case referred to it by Belgium's Constitutional Court, the Court of Justice of the European Union in Centraal Israëlitisch Consistorie van België and Others v. Vlaamse Regering, (CJEU Grand Chamber, Dec. 17, 2020), upheld a decree of the Flemish government requiring kosher and halal slaughter in the country to use a reversible stunning technique that is inconsistent with Jewish and Muslim religious requirements.  The Flemish government contended:

Electronarcosis is a reversible (non-lethal) method of stunning in which the animal, if it has not had its throat cut in the meantime, regains consciousness after a short period and does not feel any negative effects of stunning. If the animal’s throat is cut immediately after stunning, its death will be purely due to bleeding.... [T]he application of reversible, non-lethal stunning during the practice of ritual slaughter constitutes a proportionate measure which respects the spirit of ritual slaughter in the framework of freedom of religion and takes maximum account of the welfare of the animals concerned.

The European Court said in part:

[T]he Charter is a living instrument which must be interpreted in the light of present-day conditions and of the ideas prevailing in democratic States today ... with the result that regard must be had to changes in values and ideas, both in terms of society and legislation, in the Member States. Animal welfare, as a value to which contemporary democratic societies have attached increasing importance for a number of years, may, in the light of changes in society, be taken into account to a greater extent in the context of ritual slaughter and thus help to justify the proportionality of legislation such as that at issue in the main proceedings....

... [T]he measures contained in the decree at issue ... allow a fair balance to be struck between the importance attached to animal welfare and the freedom of Jewish and Muslim believers to manifest their religion and are, therefore, proportionate.

The Court also issued a press release announcing the decision. Meanwhile, Israel's Ministry of Foreign Affairs harshly criticized the ruling, saying in part:

Beyond the fact that this decision harms the freedom of worship and religion in Europe, a core value of the EU, it also signals to Jewish communities that they are unwanted in Europe. 

Courthouse News Service reports on the decision.

Supreme Court, 7-2, Refuses To Reinstate Injunction Against Kentucky School Closing Order

 In Danville Christian Academy, Inc. v. Beshear, (US Sup. Ct., Dec. 17, 2020), the U.S. Supreme Court by a vote of 7-2 refused to reinstate a district court's injunction against the Kentucky governor's November 18 COVID-related school closing order. The 6th Circuit had stayed the injunction. The governor's Order was challenged by a Christian school. The majority said in part:

The Governor’s school-closing Order effectively expires this week or shortly thereafter, and there is no indication that it will be renewed. The Order applies equally to secular schools and religious schools, but the applicants argue that the Order treats schools (including religious schools) worse than restaurants, bars, and gyms, for example, which remain open. For the latter reason, the applicants argue that the Order is not neutral and generally applicable....

Under all of the circumstances, especially the timing and the impending expiration of the Order, we deny the application without prejudice to the applicants or other parties seeking a new preliminary injunction if the Governor issues a school-closing order that applies in the new year.

Justice Alito filed a dissenting opinion that Justice Gorsuch joined. And Justice Gorsuch filed a dissenting opinion that Justice Alito joined. SCOTUSblog discusses the decision. (See prior related posting.)

VP Pence Hosts Pro-Life Event At White House Complex

Yesterday, Vice President Mike Pence hosted a "Life is Winning Event" in the Executive Office Building at which more than 20 anti-abortion organizations were represented. (Video of the event.) The event included 15 minutes of remarks from the Vice President (full text of remarks) in which he said in part:

... I truly do believe if all of us continue to do all that we can in the months and the years ahead, we will see the sanctity of life restored to the center of American law in our time....

I know what all of you know as well: that he who said “Before I formed you in the womb, I knew you” is about life. And we do well in this movement to always remind ourselves that when we make the cause for life our cause, we make His work on this Earth our very own.

So do not grow weary in doing well, because in the last four years, we’ve shown when men and women of faith and conviction come together to stand up for the unborn, to speak out for the voiceless, life can win in America. And with your help and God’s help, life will keep on winning in the United States of America.

DC Archdiocese Seeks Liberalized Capacity Rules For Its Churches

Last week, the Catholic Diocese of Washington, D.C. sued in federal district court challenging D.C.'s COVID-related 50-person cap on religious gatherings.  It seeks, instead, percentage-based limits similar to those imposed on numerous commercial establishments. The complaint (full text) in Roman Catholic Archbishop of Washington v. Bowser, (D DC, filed 12/11/2020), alleges that half of the churches in the Archdiocese can accommodate 500 or more worshippers, and the largest can accommodate thousands. It contends that the current limits violate its 1st and 14th Amendment rights. The complaint declares:

 Christmas should be a time for reconciliation and joy, and the Archdiocese simply wants to welcome its flock home. It respectfully requests that it be allowed to do so.

Catholic News Service reports on the lawsuit.

UPDATE: In order to resolve the litigation, D.C.'s Mayor on Dec. 16 issued modified rules (full text of Mayor's Order) that allow houses of worship to admit up to 25% of their capacity, not to exceed 250 persons, for worship services. Other events or programs at churches are limited to 10 persons indoors or 25 outdoors. Other safety protocols are also required for religious services. Washington Post reports on the new Order.

9th Circuit Orders Injunction Against Nevada's COVID Limits On Churches

In Calvary Chapel Dayton Valley v. Sisolak, (9th Cir., Dec. 15, 2020), the U.S. 9th Circuit Court of Appeals held that Nevada's COVID-19 restrictions on worship services violate the Free Exercise clause. The court said in part:

The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities.

Nevada Independent reports on the decision.

Federal Agencies Loosen Requirements For Faith-Based Grantees

 Yesterday nine federal departments jointly issued a 381-page release (full text) titled Equal Participation of Faith-Based Organizations in the Federal Agencies’ Programs and Activities. The Release amends existing rules to loosen restrictions on faith-based organizations operation of programs and activities funded by federal grants. The new rules impact grants by the Departments of Education, Homeland Security, Agriculture, Justice, Labor, Veterans Affairs, Housing and Urban Development, Health and Human Services, and Agency for International Development.

DOJ's press release on the new rules says in part:

This final rule ensures equal treatment for faith-based organizations, consistent with the Constitution and other federal law.  It removes requirements in prior regulations that placed unequal burdens on religious organizations, cast unwarranted suspicion on them, and were in tension with their religious liberty rights.  This final rule also clarifies that religious organizations do not lose various legal protections because they participate in federal programs and activities, such as the rights to accommodations and conscience protections under the First Amendment, Religious Freedom Restoration Act, and other federal laws.

Friendly Atheist blog describes the major changes as follows:

Right now, faith-based service providers have to refer clients elsewhere if the people say they feel uncomfortable with their religious affiliation. That’s now gone.

Right now, any clients are required to be told about their religious freedom rights. They’re told they don’t have to participate in any religious activities, they are entitled to go to an alternative service provider, and they can file a complaint if necessary. That’s now gone.

Right now, if clients receive a voucher for social services, there must be a secular provider in addition to any religious providers. That requirement is now gone… which means there may be no secular options for some people.

The new rules become effective Jan. 16, 2021. [Thanks to Scott Mange for the lead.] 

Supreme Court Sends Two Cases On COVID Limits Back For Reconsideration

In two separate cases today, the U.S. Supreme Court vacated district court opinions (1, 2) denying churches or clergy injunctions against state COVID-19 orders. The Supreme Court ordered those courts to reconsider the cases in light of the Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. In one of today's cases, High Plains Harvest Church v. Polis, (Sup. Ct., Dec. 15, 2020), challenging Colorado restrictions, Justice Kagan, joined by Justices Breyer and Sotomayor dissented on the ground that the case is now moot since the challenged capacity limits have already been lifted. In the second case, Kevin v. Murphy, (Sup. Ct., Dec. 15, 2020), challenging New Jersey restrictions, no dissents to the one paragraph order were recorded. SCOTUSblog has more on the decisions. [updated]

Minnesota Town Approves Asatru Zoning Request

The Washington Post reported yesterday on a controversial religious zoning battle in the 273-person town of Murdock, Minnesota:

The Murdock City Council voted 3-1 ... to allow the Asatru Folk Assembly to turn the run-down church it purchased in July into its first “hof,” or gathering place, in the Midwest. The looming presence of the obscure Nordic folk religion, widely classified as a White supremacist hate group by extremism and religious experts, promoted months of pushback from concerned residents.

City leaders, meanwhile, were advised that denying the AFA’s permit could leave Murdock vulnerable to a potentially devastating religious discrimination suit.

Michigan Catholic School Challenges COVID Closure Order

A private Catholic school has sued seeking a declaration that Michigan's latest COVID-19 order temporarily closing down in-person high school instruction violates its Free Exercise rights.  The complaint (full text) in Saint Michael Academy, Inc. v. Gordon, (WD MI, filed 12/11/2020) alleges in part:

The Declaration of Dr. Jayanta Bhattacharya, a world-renowned scientific expert, professor of Medicine at Stanford University, and author of 136 articles in peer-reviewed journals, attached to this Complaint as Exhibit 3, presents scientific analysis which shows that prohibiting in-person instruction for pupils in grades 9 through 12 as does Director Gordon’s current Order, is not warranted by either transmission or mortality data, and causes these students great harm....

Without in-person instruction, St. Michael Academy is unable to provide the Christ-centered, communal academic environment required for its students to grow and develop in accordance with its religious purpose, mission and vision....

The current Order is an arbitrary order that, while closing down St. Michael Academy’s high school, nevertheless permits many other types of gatherings that pose similar or greater risks of COVID-19 transmission and infection, and that are unprotected by the Free Exercise clause of the United States Constitution.

Thomas More Law Center issued a press release with more details on the case. MLive reports on the lawsuit.

Ohio County's School Closure Order Upheld

In Monclova Christian Academy v. Toledo- Lucas County Health Department, (ND OH, Dec. 14, 2020), an Ohio federal district court refused to issue a temporary restraining order against COVID-19 rules which bar in-person instruction at the high school level, and bar use of schools for various activities. The suit was filed by three Christian schools and an organization of Christian and Catholic schools.  The court said in part:

The nature of Plaintiffs’ arguments stems in part from their assertion that the educational courses they offer to their students are inextricably intertwined with their religious beliefs and, therefore, to prohibit Plaintiffs from holding classes in the manner in which they believe is most consistent with the tenets of their faith is to interfere with the free exercise of their faith....

While, as Plaintiffs note, TLCHD has not ordered gyms, tanning salons, or casinos to close, ... these are not the relevant “comparable secular activities.” Instead, the comparable secular activities are educational classes offered by all other schools in Lucas County. These specific environments have substantially similar groupings and movements of individuals....

Plaintiffs’ arguments ... would extend to prohibit the government from regulating any aspect of a Christian’s public life because, as Plaintiffs’ mission statements make clear, the purpose of providing “a biblical foundation for . . . students” is to prepare students “to exemplify Christ [and] make Biblically-based decisions” throughout an individual’s life, and not only during the schools years.

Austria's Constitutional Court Strikes Down Assisted Suicide Ban; Hijab Ban For Young Girls

Last Friday, Austria's Constitutional Court issued two important decisions. It held it unconstitutional to prohibit assisting suicide.  According to the Court's press release:

At the request of several people affected, including two seriously ill people, the Constitutional Court (VfGH) repealed the provision that makes assisting suicide a criminal offense:

The phrase “or help him” in Section 78 of the Criminal Code is unconstitutional. It violates the right to self-determination, because this fact forbids any kind of assistance under any circumstances.

The Court also struck down the ban on young school girls wearing religious head coverings. Its press release said in part:

Pursuant to Section 43a, Paragraph 1, Clause 1 of the School Education Act, schoolchildren are prohibited from wearing ideologically or religiously influenced clothing that involves covering their heads until the end of the school year in which they turn 10.

Two children and their parents opposed this regulation. The children are raised religiously in the sense of the Sunni or Shiite legal school of Islam. You see in this provision, which is ultimately aimed at the Islamic headscarf (hijab), a disproportionate interference with the right to religious freedom and religious child-rearing. 

With the decision announced today, the Constitutional Court (VfGH) has repealed this "headscarf ban" as unconstitutional....

A regulation that selectively picks out a certain religious or ideological conviction by deliberately privileging or disadvantaging such a belief requires a special objective justification with regard to the requirement of religious and ideological neutrality.

AFP reported on the headscarf decision. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

 From SSRN:

• Netta Barak Corren, Regulating for Social Integration by Behavioral Design: An Evidence-Based Approach for Culturally Responsive Regulation, (Forthcoming, Regulation and Governance).
• Netta Barak Corren, A License to Discriminate? The Empirical Consequences and Normative Implications of Religious Exemption,  (Forthcoming, Harvard Civil Rights- Civil Liberties Law Review, Vol. 56, No. 2, 2021).
• Netta Barak Corren, Religious Exemptions Increase Discrimination Towards Same-Sex Couples: Evidence from Masterpiece Cakeshop, (Forthcoming, The Journal of Legal Studies).
• Patrick M. Garry, Establishment Clause Jurisprudence Still Groping for Clarity: Articulating a New Constitutional Model, (Northeastern  University Law Review, Vol. 12, No. 2, 2020, p. 660-706).
• Samsi Pomalingo, Fahimah M. Mooduto & Arfan Nusi, The Violence in the Name of God: Landscape of Radical Islamic Thought and Action in Indonesia, (September 18, 2020).
• Anton Sorkin, Book Review of the Conscience Wars: Rethinking the Balance Between Religion, Identity, and Equality (Susanna Mancini and Michel Rosenfeld, Eds. 2018), (Journal of Law and Religion, Forthcoming).
• Jerome A. Barron, Internet Access, Hate Speech and the First Amendment, (First Amendment Law Review, Vol. 18, No. 1, 2019).

From SmartCILP:

• Sohail Wahedim, Muslims and the Myths in the Immigration Politics of the United States, 56 California Western Law Review 135-202 (2019).
• Hillel Y. Levin, Private Schools' Role and Rights in Setting Vaccination Policy: A Constitutional and Statutory Puzzle, (61 William & Mary Law Review 1607-1662 (2020).

Court Refuses To Enjoin Kentucky Limits On In-Person Religious School Instruction

 In Pleasant View Baptist Church v. Saddler, (ED KY, Dec. 11, 2020, a Kentucky federal district court refused to issue a preliminary injunction against enforcement of Kentucky's COVID-19 orders that, among other things, ban in-person teaching at religious schools and limit the size of in-home social gatherings. Relying on 6th Circuit precedent, the court rejected free exercise challenges by Christian schools. It added, however:

Ultimately, the Supreme Court will decide this question. Danville Christian Academy, Inc., et al. v. Beshear, 20-6341 (6th Cir. Nov. 29, 2020), appeal docketed, No. 20A96 (Dec. 1, 2020). At this juncture, an injunction is not supported given the teaching of the Sixth Circuit, but that could change. And if it does, this Court will revisit Pleasant View’s request.

Street Preacher Planning Protest Lacks Standing In TRO Proceeding

In Gibson v. City of Vancouver, 2020 U.S. Dist. LEXIS 232408 (WD WA, Dec. 3, 2020), a Washington federal district court refused to issue a temporary restraining order to protect a street preacher who planned to hold a 20-person outdoor prayer protest at a public park to oppose the governor's COVID-19 orders. The court held that plaintiff lacks standing to sue, saying in part that plaintiff:

has not demonstrated that any of the Defendants he sued have communicated a specific warning or threat to initiate any proceedings against him if he carries out his plan...

Court Refuses To Enjoin City's Holiday Display Policy

In Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, Dec. 11, 2020), a Delaware federal district court refused to issue a preliminary injunction against the city's policy on religious displays at the Rehoboth Beach Bandstand. Plaintiffs want to continue their past practice of erecting a creche on the site for the Christmas season. The city's policy, which allegedly at one time banned religious displays of all kinds, was revised while this litigation was pending so that it now prohibits only any unattended private display on city property. However it permits attended religious and secular displays. The court said in part:

[B]ecause the motion is directed to a policy that no longer exists (if it ever did) and there is no realistic chance the alleged unconstitutional conduct will be resumed before the Court can reach the merits of the case, the motion must be denied as moot. It is also unripe. The Knights is free to apply to display an attended creche, but it has not yet done so. Finally, ... even assuming Plaintiff has established a likelihood of success on the merits, the motion must be denied because Plaintiff has failed to show it will suffer irreparable harm in the absence of preliminary injunctive relief.

Michigan Court of Claims: State Civil Rights Law Bans Gender Identity, But Not Sexual Orientation, Discrimination

In 2018, the Michigan Civil Rights Commission in Interpretive Statement 2018-1 concluded that:

as used in the Elliott Larsen Civil Rights Act “discrimination because of... sex” includes discrimination because of gender identity and discrimination because of sexual orientation.

Now in Rouch World, LLC v. Michigan Department of Civil Rights, (MI Ct. Cl., Dec. 7, 2020), the Michigan Court of Claims 

"discrimination because of sex under the ELCRA includes discrimination because of an individual’s “gender identity,” and thus Interpretative Statement 2018-1 is valid to that extent....

However, feeling itself bound by a prior state Court of Appeals decision, the court held:

discrimination because of an individual’s “sexual orientation” is not prohibited under the ELCRA. Whether enforcement of Interpretative Statement 2018-1, as modified by this opinion and order, would interfere with plaintiffs’ First Amendment rights to the free exercise of religion has not been sufficiently briefed to resolve at this juncture.

At issue in the case According to the Detroit News, Michigan's attorney general plans to support the Civil Rights Commission's full interpretation in an appeal.

Court Continues Injunction Allowing Medical Abortion Drug To Be Dispensed In Pharmacy Or By Mail

 In American College of  Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (D MD, Dec. 9, 2020), a Maryland federal district court refused to stay its earlier preliminary injunction against enforcement during the COVID emergency of an FDA rule that prevents mifepristone, an oral medication used to induce abortion, from being received by mail or through a pharmacy. The rule mandates it be dispensed only in person at a clinic or doctor's office. The court said in part:

As the parties continue their ongoing dispute over the validity of the Preliminary Injunction and whether it should presently remain in effect, the Court notes that it is not open-ended. The Preliminary Injunction is slated to end 30 days after the end of the public health emergency declared by the Secretary. With the positive news relating to vaccines, there is reason to hope that day will come soon. At this time, however, as the entire nation goes through what the Coordinator of the White House Coronavirus Task Force has deemed the "most deadly phase of the pandemic,"... the Court concludes that Defendants have not identified changed circumstances sufficient to warrant a stay or dissolution of the Preliminary Injunction, in whole or in part.

Washington Post reports on the decision.

Court Refuses To Decide Whether LDS Church Is Christian

 In Ball v. Ball, (AZ App., Dec. 10, 2020), an Arizona appellate court was called upon to interpret a Parenting Plan that parents had agreed upon three years earlier as part of the dissolution of their marriage. The Plan provided:

Each parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care.

Both parents agree that the minor children may be instructed in the Christian faith.

A year after the divorce, the father joined the LDS Church and sometimes took the children to meetings there. The mother objected claiming that the father's church is not Christian. The court held that the reference to "Christian" in the second clause does not limit the father's right to take the children to any place of worship, Christian or not.

The court went on to hold that the ecclesiastical abstention doctrine would bar it from deciding whether the Church of Jesus Christ of Latter Day Saints is part of the Christian faith, saying in part:

That very question has long been a matter of theological debate in the United States. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religious view over another.

Supreme Court Holds That RFRA Authorizes Damage Actions Against Federal Officials

The U.S. Supreme Court today in Tanzin v. Tanvir, (Sup. Ct., Dec. 10, 2020), held that the Religious Freedom Restoration Act permits suits for damages against federal officials in their individual capacities. In an 8-0 opinion (written by Justice Thomas), the court described the case as follows:

Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. Respondents sued various agents in their official capacities, seeking removal from the No Fly List. They also sued the agents in their individual capacities for money damages. According to respondents, the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost.

Focusing on RFRA's authorization of suits seeking "appropriate relief" against the federal government or government officials, the Court said in part:

A damages remedy is not just “appropriate” relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations.

Justice Barrett did not take part in the decision.

USCIRF Hearing On Blasphemy Laws

 The U.S. Commission on International Religious Freedom held a hearing yesterday on Blasphemy Laws and the Violation of International Religious Freedom. Transcripts of remarks by several USCIRF commissioners at the hearing, and transcripts of the written testimony of several witnesses are available at the USCIRF website.

Sign Ordinance Invoked Against Abortion Protesters Is Unconstiutional

In Baker v. City of Fort Worth, (ND TX, Dec. 8, 2020), a Texas federal district court held that Fort Worth's sign ordinance is facially unconstitutional as a content-based prior restraint on speech.  The suit was brought by two plaintiffs who were cited for placing 18-inch crosses on a public right-of-way in front of an abortion clinic. The city ordinances require city council approval in order to display signs on public property, except for political signs at election polling locations.

9th Circuit Hears Oral Arguments In Church's Challenge To Nevada COVID Rules

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Calvary Chapel Dayton Valley v. Sisolak (video of full oral arguments). In the case, a Nevada federal district court upheld Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting.) Subsequently, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending the appeal that was argued this week. (See prior posting.) After that, plaintiff filed a petition asking the U.S/ Supreme Court to grant certiorari before the 9th Circuit decides the case. (See prior posting.) That petition is still pending.

Michigan Catholic Schools Sue Over COVID Order

A group of Catholic schools and parents of students in the schools filed suit this week in a Michigan federal district court challenging the state's latest COVID-19 Order which temporarily bars in-person instruction in high schools. The schools claim that the latest order violates their free exercise, freedom of assembly, due process and equal protection rights. The complaint (full text) in Michigan Association of Non-Public Schools v. Gordon, (WD MI, filed 12/7/2020), alleges in part:

Plaintiffs fully understand and appreciate the challenges of limiting COVID’s spread and of contributing to the common good. They are convinced that continuing in-person religious education contributes  to the well-being of Michiganders, rather than harming it. That is why they have gone to such extraordinary lengths to ensure in-person schooling can be done safely for everyone.

Despite all this, Defendant has shuttered Plaintiffs’ schools. At the same time, Defendant allows other activities with demonstrably higher risks to continue. These include professional and collegiate athletics, tattoo parlors and hair salons. Defendant’s prior three-week “pause” order has now been extended and Plaintiffs face the prospect of indefinite future extensions....

MLive reports on the lawsuit.

4th Circuit Remands Muslim Inmate's RLUIPA and Equal Protection Claims

In Gentry v. Robinson, (4th Cir., Dec. 7, 2020), the U.S. 4th Circuit Court of Appeals affirmed in part and vacated in part a Virginia district court's dismissal of a suit by a Muslim inmate who, for religious reasons, seeks to maintain a full beard. The court remanded plaintiff's RLUIPA claim instructing the district court to consider, in light of the prison system's change in policy to now allow beards, whether the claim is moot. The court also remanded for further consideration plaintiff's equal protection claim. The court however agreed that plaintiff's claim for damages for violating his 1st Amendment free exercise rights should be dismissed, saying in part:

Because no law or precedent at the time of the challenged conduct “clearly established” that VDOC’s grooming policy violated the constitutional rights of religious objectors like Gentry, the defendants are entitled to qualified immunity on this claim.

10th Circuit Allows Enforcement of Disturbing-the-Peace Law Against Abortion Protesters

In Harmon v. City of Norman, (10th Cir., Dec. 7, 2020), the U.S. 10th Circuit Court of Appeals upheld a district court's refusal to enjoin during the pendency of litigation the use of Norman, Oklahoma's disturbing-the-peace ordinance against anti-abortion protesters. The court held that the ordinance is a neutral and narrowly-tailored time, place and manner regulation that does not violate the 1st Amendment. The court also rejected vagueness and overbreadth claims.

Suit Challenges Ohio County's COVID-19 School Closure Order

Three Toledo, Ohio area Christian schools and a state-wide organization of evangelical and Catholic schools filed suit yesterday in an Ohio federal district court challenging a Health Department's COVID-19 Resolution requiring secondary schools to end in-person teaching.  The complaint (full text) in Monclova Christian Academy v. Toledo-Lucas County Health Department, (ND OH, filed 12/7/2020), alleges in part:

If the Resolution is allowed to take effect, on December 4 at 4:00 p.m. in Lucas County, one will still be free to crowd in retail stores, go bowling with friends, go to the movies, attend concerts, go to a hair salon, get a manicure or massage or tattoo, or even go to the casino. Although there are limits and restrictions that govern how such in-person activities must operate, the Resolution has not prohibited them or altered the way in which those groups of people gather or use facilities. Yet, starting on December 4 at 4:00 p.m., Grades 7-12 (or 9-12 depending on school configuration) are strictly prohibited from attending in-person school, even when religious education is a deep and sincere facet of one’s faith, and even when those operating religious schools are abiding by strict social distancing and hygiene standards.

Citizens for Community Values issued a press release announcing the filing of the lawsuit. 

House Resolution Calls For International Repeal of Blasphemy, Heresy and Apostasy Laws

The U.S. House of Representatives yesterday, by a vote of 386-3 passed House Resolution 512 (full text) calling for the global repeal of blasphemy, heresy and apostasy laws. The Resolution says in part:

[B]lasphemy laws have affected Christians, Muslims, Hindus, Baha’i, secularists, and many other groups, are inconsistent with international human rights standards because they establish and promote official religious orthodoxy and dogma over individual liberty, and often result in violations of the freedoms of religion, thought, and expression that are protected under international instruments, including Articles 18 and 19 of the International Covenant on Civil and Political Rights (ICCPR)....

The Resolution "calls on the President and the Secretary of State to make the repeal of blasphemy, heresy, and apostasy laws a priority in the bilateral relationships...."

Department of Labor Broadly Defines Religious Exemption From Anti-Discrimination Rules for Federal Contractors

Yesterday, the U.S. Department of Labor Office of Federal Contract Compliance Programs in a 159-page Release (full text) adopted amendments defining expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. The agency's rules incorporate Executive Order 11246 which imposes non-discrimination and equal treatment requirements for employees of the contractor or subcontractor.  The Executive Order bars discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. However there is an exemption for:

a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

The amendments provide in part:

Religious corporation, association, educational institution, or society means a corporation, association, educational institution, society, school, college, university, or institution of learning that: 

(i) Is organized for a religious purpose; 

(ii) Holds itself out to the public as carrying out a religious purpose;

(iii) Engages in activity consistent with, and in furtherance of, that religious purpose; and

(iv)(A) Operates on a not-for-profit basis; or 

     (B) Presents other strong evidence that its purpose is substantially religious.

(2) Whether an organization’s engagement in activity is consistent with, and in furtherance of, its religious purpose is determined by reference to the organization’s own sincere understanding of its religious tenets....

Reactions to the new rule varied. For example, First Liberty praised the new rule, saying in part:

Religious organizations should never be forced to abandon their religious identity and mission in order to be eligible to partner with the federal government.

On the other hand, Americans United said in part:

The constitutional right to religious freedom promises everyone the right to live their lives secure that the government will treat them equally, no matter what their belief system. The new Department of Labor rule, however, turns this core American value on its head and puts countless peoples’ jobs at risk because they do not share the religious views or meet the religious code of conduct of a government contractor. Like so many others issued by the Trump administration, this rule particularly puts at risk workers who are LGBTQ, women, religious minorities and non-religious people.

Supreme Court Hears Arguments On Suits Over Nazi Confiscation of Jewish-Owned Property

The U.S. Supreme Court today heard oral arguments in two cases involving suits to recover the value of Jewish-owned property confiscated by governments in Hungary and Germany during World War II. In Republic of Hungary v. Simon (links to transcript and audio of full oral arguments), the Court was asked to decide on whether principles of international comity could be invoked by the district court to abstain from deciding the case under the Foreign Sovereign Immunities Act. The case was brought by surviving Hungarian nationals seeking to recover on behalf of a worldwide class the value of property taken from them during the Holocaust.

In an amicus brief, the United States government argued:

The United States has a paramount interest in ensuring that its foreign partners establish appropriate domestic redress and compensation mechanisms for Holocaust victims, and therefore seeks to prevent litigation in U.S. courts that could undermine that objective.

SCOTUSblog case page has links to all the filing in the case. 

In Federal Republic of Germany v. Philipp (links to transcript and audio of full oral arguments), the Court, in addition to the comity question, is asked to decide whether the expropriation exception to sovereign immunity in the Foreign Sovereign Immunities Act covers the taking of property in the Holocaust in violation of human rights provisions of international law. The suit seeks recovery for the forced sale at a fraction of its actual value of a collection of medieval reliquary art that had been purchased in 1929 by a consortium of Jewish art dealers in Germany.

SCOTUSblog case page has links to all the filing in the case.

AP reports on the arguments in both cases.

SCOTUS Denies Review In Transgender Bathroom Case

The U.S. Supreme Court today denied review in Parents for Privacy v. Barr, (Docket No. 20-62, certiorari denied 12/7/2020). (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld an Oregon school district's policy of allowing transgender students to use school bathrooms, locker rooms and showers that correspond to their gender identity. (See prior posting.) The petition for certiorari had raised privacy, religious and parental rights, and Title IX claims.

Recent Articles of Interest

 From SSRN:

• Anna Lukina, Angels, Demons, Us: Raz and Aquinas on Law’s Necessity (October 3, 2020).
• Marc Spindelman, Embracing Casey: June Medical Services L.L.C. v. Russo and the Constitutionality of Reason-Based Abortion Bans,(109 Georgetown Law Journal Online 115 (2020)).
• Kenneth A. Bamberger & Ariel Mayse, Privacy in Society: Jewish Law Insights for the Age of Big Data, (November 16, 2020).
• Charles F. Capps, Incidental Burdens on First Amendment Freedoms, (Forthcoming, Notre Dame Law Review Reflection, Vol. 96, No. -- , 2021).
• Steven A. Ramirez, Hate on the Ballot: Election 2020 and the Quest for a Diverse and Inclusive Democracy, (Harvard Latinx Law Review, Vol. 23, 2020).
• Patrick M. Garry, When Anti-Establishment Becomes Exclusion: The Supreme Court's Opinion in American Legion v. American Humanist Association and the Flip Side of the Endorsement Test, (Nebraska Law Review, Vol. 99, No. 3, 2020, p. 643-73).
• Mugambi Jouet, Death Penalty Abolitionism From the Enlightenment to Modernity, (American Journal of Comparative Law (2022 Forthcoming).
• Skylar Croy & Alexander Lemke, An Unnatural Reading of History: The Revisionist History of Abortion in Hodes v. Schmidt,  (Forthcoming in the Florida Journal of Law & Public Policy).
• John Wrench & Arif Panju, A Counter-Majoritarian Bulwark: The First Amendment and Professional Speech in the Wake of NIFLA v. Becerra, (Texas Review of Law & Politics, Vol. 23, No. 3, 2020).
• Nancy C. Marcus, Bostock v. Clayton County and the Problem with Bisexual Erasure, (Northwestern Law Review Online 2020).
• Sherally Munshi, Manners of Exclusion: From the Asiatic Barred Zone to the Muslim Ban, (October 12, 2020).

From SSRN (European, Middle East and Asian Law):

• Chih-hsiung Thomas Chen, Legislating the Right-to-Die with Dignity in a Confucian Society, (Hastings International and Comparative Law Review, Vol. 42, No. 2, 2019).
• Yofi Tirosh, Diminishing Constitutional Law: The First Three Decades of Women's Exclusion Adjudication in Israel, (18 International Journal of Constitutional Law (ICON) (2020)).
• Andreas Kulick, Corporate Human Rights?, (European Journal of International Law, Forthcoming).
• Kristin Henrard, State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM, (Erasmus Law Review, Vol. 13, No. 3, 2020).

Indian State Places New Restrictions On Religious Conversion

On Nov. 27, the Indian state of Uttar Pradesh promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (full text) (section-by-section explanation). It outlaws religious conversions entered solely for the purpose of marriage, as well as religious conversions by means of misrepresentations, force, coercion, undue influence, allurement or fraud. Violations are punishable by imprisonment of 1 to 5 years, and a fine of up to $200(US)-- with higher punishments where a minor, a woman or member of a Scheduled Caste are involved, or a mass conversion. 

The new law also sets out an elaborate procedure for anyone who wishes to change his or her religion. The procedure includes a 60-day advance notice to the District Magistrate, followed by a police investigation, and a post-conversion filing. The clergy planning to conduct a conversion must file a notice 30 days in advance. The Hindu reports on the new law.

Time reports on the "love jihad" conspiracy theory that has given impetus to laws such as this one:

Love Jihad is a baseless conspiracy theory that Muslim men are attempting to surreptitiously shift India’s demographic balance by converting Hindu women to Islam through marriage. The narrative has been pushed by Hindu nationalist groups close to India’s ruling BJP since Prime Minister Narendra Modi was first elected in 2014....

The new law comes just two weeks after judges in Uttar Pradesh’s high court overturned a previous decision that religious conversions for the sake of marriage are unacceptable....

The high court case referred to is Priyanshi @ Km. Shamren and others v. State of U.P. and Another, (Allahabad High Court, Nov. 11, 2020). The court said in part:

Right to choose a partner irrespective of caste, creed or religion, is inhered under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.