Virginia Trial Court Rejects Religious Challenge To COVID-19 Restrictions On Churches

In Young v. Northam, 2021 Va. Cir. LEXIS 35 (VA Cir. Ct., Feb. 27, 2021), a Virginia state trial court refused to enjoin the Governor's most recent COVID-19 restrictions on churches. Finding that plaintiffs have not overcome the exception for health and safety in the Virginia Statute for Religious Freedom, the court said in part:

The Petitioners religious beliefs are genuine and sincere, but Executive Order # 72 does not prohibit assembly, the taking of communion, singing, praying nor restrict capacity in churches. St. Matthew states that "For where two or three gather in my name, there am I with them." Matthew 18:20.

There are no capacity limits in Executive Order # 72 and non-religious gatherings have stricter requirements regardless of occurring indoors or outdoors. (12). Section (E) of the statute certainly contemplated that some temporary restrictions may be necessary in emergency situations.

The next issue, consistent with the statute, is whether the least restrictive means have been employed to further the compelling governmental interest. Executive Order # 72 exempts religious services from the otherwise-universal temporary gathering restrictions. The order indicates that individuals may be seated wherever and with whomever they want with appropriate physical distancing.

This court recognizes an honest distinction between an appropriate political debate that reflects rational disagreement with the Respondent's order and a judicial ruling that such order is unconstitutional. Therefore, the court holds that the Petitioners are not entitled to injunctive relief under the statute.

The court also rejected a 1st Amendment free exercise challenge. 

School's Refusal To Allow Modified Graduation Cap Upheld

In Waln v. Dysart School District, 2021 U.S. Dist. LEXIS 38345 (D AZ, Feb. 28, 2021), an Arizona federal district court rejected free exercise, free speech and equal protection challenges to a school district's refusal to allow a graduating senior to wear a decorated cap at graduation ceremonies.  The student was a member of the Sioux tribe and for cultural and religious reasons wanted to wear a beaded cap adorned with an eagle feather. The school district allowed Native American students to wear in their hair, or as a necklace or jewelry, but did not permit altered commencement caps. The court said in part:

[A]dopting an appearance of neutrality with regard to religion or cultural viewpoints, and the avoidance of controversy, have been deemed reasonable bases for subject-matter limitations, such as limitations on religious expression, on a student's free speech rights.... In this matter, all expressive speech, including but not limited to religious speech, was prohibited by the dress code blanketly prohibiting the augmentation of graduation caps, and the restriction was reasonable and related to the purpose of the forum. And, most notably, the prohibition of any adornment of any kind on a student's graduation cap during the commencement ceremonies was content-neutral.

Canadian Court Upholds Denial of Driver's License To Pastafarian Wearing Pirate's Hat

In Canada, in Smith v. British Columbia Human Rights Tribunal, (BC Sup. Ct., Feb. 26, 2021), a British Columbia trial court upheld the dismissal by the B.C. Human Rights Tribunal of a religious discrimination complaint filed by a member of the Church of the Flying Spaghetti Monster. The province's driver's license authority had refused to issue petitioner a license using his photo that showed him wearing a pirate's tricorn hat. The Tribunal had said:

You are a Pastafarian and member of the Church of the Flying Spaghetti Monster which mocks religious beliefs and certain religious practices.  Pastafarians wear colanders as “religious” head gear.

While the protection against discrimination on the ground of religion in the Code includes protecting the expression of non-belief and the refusal to participate in religious practice, the protection does not require accommodation of a practice satirizing religious practice in providing a service customarily available to the public.  It would not further the purposes of the Code to proceed with a complaint in these circumstances.

In refusing to overturn the Tribunal's decision, the court said in part:

The Tribunal determined that accepting the petitioner’s complaint for filing “would not further the purposes of the Code”, one of which is to “promote a climate of understanding and mutual respect where all people are equal in dignity and respect”.  In my view, the Tribunal’s Decision ... cannot be said to have been patently unreasonable.

Castanet reports on the decision.

USDA Delays Transfer of Sacred Apache Ceremonial Site

As previously reported, last month an Arizona federal district court refused to enjoin a federal conveyance of a sacred Apache ceremonial ground know as Oak Flat to Resolution Copper. Yesterday the Department of Agriculture announced that it has delayed the transfer by rescinding its previous environmental impact statement, saying in part:

The recent Presidential Memorandum on tribal consultation and strengthening nation to nation relationships counsels in favor of ensuring the Forest Service has complied with the environmental, cultural, and archaeological analyses required. USDA has concluded that additional time is necessary to fully understand concerns raised by Tribes and the public.... Because the Resolution Copper Mine and Land Exchange Project was directed under the 2015 National Defense Authorization Act, long term protection of the site will likely require an act of Congress. USDA and the Forest Service cannot give a precise length of time for completing the re-initiation of consultation but consultations such as this generally take several months.

Arizona Republic reports on the USDA's action.

Israel's Top Court Rules That State Must Recognize Non-Orthodox Conversions Under Law of Return

Yesterday, Israel's Supreme Court ruled that those who convert to Judaism in Israel under auspices of the Reform or Conservative (Masorti) movements must be granted Israeli citizenship under the Law of Return.  As reported by JTA:

Israel’s Law of Return offers automatic citizenship to anyone with at least one Jewish grandparent. The state also generally recognizes those who converted to Judaism under Orthodox standards.

Past Supreme Court decisions have mandated that the state also recognize Jews who converted outside of Israel under non-Orthodox authority, provided they live in a recognized Jewish community....

Monday’s decision extends the right to citizenship to those who converted to Judaism under non-Orthodox auspices in Israel itself. The petition that spurred the court ruling was filed in 2005 but was postponed for more than a decade because the court wanted to give the government time to resolve the matter through legislation.

According to the New York Times:

The decision was mainly symbolic because typically, only 30 or 40 foreigners convert to Reform or Masorti Judaism in Israel every year.... 

But the ruling chips away some of the monopoly Orthodox rabbis have held over questions of religious identity that are central to frictions within Israeli society. It also inflames a long-running debate about the relationship between Israel’s civil and religious authorities — and particularly the role of the Supreme Court.

2020 EEOC Enforcement Data Released

The EEOC last week released Fiscal Year 2020 Enforcement and Litigation Data. It shows that 3.6% of the claims filed by the EEOC allege religious discrimination. The agency has also published a detailed breakdown of how the EEOC resolved the charges.

Recent Articles of Interest

 From SSRN:

• Gilad Abiri, The Distinctiveness of Religion as a Jeffersonian Compromise, (Penn State Law Review, Vol. 125, No. 1, 2020).
• Sohail Wahedi, Favoring And Disfavoring Religion In Law, (University of Detroit Mercy Law Review, Vol. 97, No. 4 (2020).
• Frédéric Mégret, Lost in Translation? Bill 21, Human Rights and The Margin of Appreciation, (“Bill 21 in Global Perspective”, McGill Law Journal (2020)).
• Harry Hobbs & George Williams, Protecting Religious Freedom in a Human Rights Act, ((2019) 93(9) Australian Law Journal 721-733).
• Jimmy Chia-Shin Hsu, Right to Life, (Chapter in Oxford Handbook of Constitutional Law in Asia (OUP, Forthcoming)).
• Pavel Filatov, The Constitutionality of Israel’s Nation State Law Considered in Light of the Principles Underlying the Canadian Charter of Rights and Freedoms, (December 1, 2019).
• Rifai Sulaiman Lebbe, War and Peace in Islam, (February 15, 2021).

Supreme Court Allows California Churches To Hold Indoor Services While Appeals Continue

The U.S. Supreme Court on Friday night in Gateway City Church v. Newsom, (Sup. Ct., Feb. 26, 2021) issued an injunction that will allow petitioner churches to hold indoor worship services while their appeal is disposed of by the 9th Circuit and a petition for certiorari is filed and acted upon by the Supreme Court. In the case, the U.S. 9th Circuit Court of Appeals refused to enjoin enforcement, while the appeal is ongoing, of a Santa Clara County, California COVID-19 Order that prohibits all indoor gatherings, including worship services. (See prior posting.) In granting an injunction, the Supreme Court said:

The Ninth Circuit’s failure to grant relief was erroneous. This outcome is clearly dictated by this Court’s decision in South Bay United Pentecostal Church v. Newsom, 592 U. S. ___ (2021).

Justice Kagan, joined by Justices Breyer and Sotomayor dissented. 

SCOTUSblog reports on the Court's order, pointing out that the county had informed the Court that the current ban will soon be lifted and indoor gatherings with capacity restrictions will be allowed.

California Church Not Exempt From Property Tax Assessed On Basis of Square Footage

In Valley Baptist Church v. City of San Rafael, (CA App., Feb. 26, 2021), a California state appellate court held that the "property taxation" exemption for property used exclusively for religious worship (California Constitution Art. XII, §3(f)) applies only to ad valorem taxes. Therefore plaintiff church was not exempt from the San Rafael's Paramedic Tax which is assessed on the basis of property square footage, not property value.

New York's No-Fault Divorce Law Did Not Infringe Wife's Religious Freedom

In King v. New York, (ND NY, Feb. 26, 2021), a New York federal district court rejected a wife's contention that New York's no-fault divorce law violates the Free Exercise and Establishment Clauses by infringing her Christian religious belief that marriage is permanent and cannot be dissolved by the state. The court said in part:

... [A] finding that H. King must remain married against his will because of L. King’s religious convictions would defy all logic and reason, and create a much larger Establishment Clause issue than the one L. King argues exists today....

Moreover, ... there is no constitutional injury here for the independent reason that the divorce that gave rise to this litigation only dissolved L. King’s and H. King’s legal marriage recognized by the State of New York; the divorce did not affect the status of their “religious marriage.”

Malaysia's Top Court Restricts Scope of State Power To Enact Sharia Law

In a decision handed down yesterday, Malaysia's highest court-- the Federal Court-- imposed significant limits on the power of Malaysian states to enact Islamic legal prohibitions, including laws that ban homosexual relationships.  The court struck down Section 28 of the Shariah Criminal Offences (Selangor) Enactment 1995-- a law of the state of Selangor that makes "sexual intercourse against the order of nature with any man, woman or animal" a criminal offense under Shariah law. Sections 377 and 377A of the federal penal code cover the same conduct.  As reported by Malay Mail:

Under Item 1 of the Federal Constitution’s State List, state legislatures can make laws on Islamic law ... "except in regard to matters included in the Federal List"....

... [T]he judge noted that the preclusion clause states “except in regard to matters included in the Federal List” and not “except in regard to matters included in the Federal Law”.

The judge explained that this does not mean that state legislatures have power to make law on matters that Parliament has not already made law on, and that state legislatures are instead unable to make law on matters that fall within Parliament’s jurisdiction, even if there is no such federal law yet....

With no challenge by any of the parties in the case over Parliament’s powers to make the Penal Code provisions that cover the same matter as Section 28, the judge said the Federal Court must accept that Parliament had competently enacted the Penal Code provisions in line with the Federal Constitution.

Malay Mail reports on the reaction of the Shariah Lawyers Association of Malaysia to the decision.

Korea's Supreme Court Accepts Secular Conscience Objection To Military Service

Korea JoongAng Daily reports that for the first time yesterday, Korea's Supreme Court held that a non-religious conscientious objector is entitled to an exemption from annual reservist training:

Reading the top court’s ruling, presiding Judge Lee Heung-goo said, “Although it is not based in religious belief, the defendant’s rejection of reservist training stems from a sincere conscientious objection grounded in his ethical, moral and philosophical convictions. We therefore see this as a justifiable application of the provision in the Reserve Forces Act for declining participation.”...

At his Supreme Court trial, the man testified, “Growing up under a violent father, I underwent a self-awakening about the use of force. Later, I saw a video of American soldiers shooting civilians from a helicopter, which led me to renounce the idea of possibly killing or murdering another human being.”

(See prior related posting.)

Required Measles Inoculation Upheld

In W.D. v. Rockland County, (SD NY, Feb. 22, 2021), a New York federal district court dismissed free exercise, equal protection and due process challenges to an order of the Rockland County Department of Health requiring children between 6 months and 18 years of age to be vaccinated against measles in order to enter any place of public assembly, including for educational or religious purposes. The order did not apply to children with medical exemptions, but did apply to those with religious exemptions. Rejecting plaintiffs' free exercise challenge, the court said in part:

Here, the Emergency Declaration is subject to rational basis review because it is both facially neutral and generally applicable.... Under rational basis review, Defendants have demonstrated that the Declaration served the legitimate government purpose of protecting the County’s community from the measles outbreak.... Moreover, even if strict scrutiny applied, the Emergency Declaration satisfies that standard as well. 

EEOC Sues On Behalf of Seventh Day Adventist Hotel Employee

EEOC announced yesterday that it has filed a religious discrimination suit against a Florida resort hotel, Noble House Solé. The suit alleges that a new director of housekeeping fired a Seventh Day Adventist room attendant who refused to work on Saturdays. For the prior ten months, the employee's Sabbath observance had been accommodated.

Japan Supreme Court: City Cannot Offer Land Free To Confucian Temple

Kyodo reports that Japan's Supreme Court yesterday ruled that it was unconstitutional for a city government to waive land usage fees for a Confucian temple:

Presiding Justice Naoto Otani, who heads the top court, said the capital city of Okinawa Prefecture's waiver of the land usage fees for the Confucian temple, which sits on a city-run park, infringes Article 20 of the supreme law, which bans municipalities from engaging in religious activities.

"The Naha city government could be judged to be aiding a certain religion," said the ruling made by the top court's Grand Bench.

The Supreme Court also determined that the temple built by a group of descendants of people who had moved from China to Japan in the 14th century is a religious facility and its historical value and significance as a tourist spot cannot warrant free land usage.

11th Circuit En Banc Hears Oral Arguments In Case of Juror Who Heard From A Higher Being

On Tuesday, the U.S. 11th Circuit Court of Appeals, sitting en banc, heard oral arguments (audio or full oral arguments) in United States v. Corrine Brown. In the case, a 3-judge panel, in a 2-1 decision, affirmed the trial court's dismissal of a juror in the fraud case of former Florida representative Corrine Brown. At issue was a statement made by one of the jurors during deliberations that "A Higher Being told me Corrine Brown was Not Guilty on all charges." (See prior posting.) News4 reports on the oral arguments.

OCR and Justice Back Off Trump Administration Policy On Transgender High School Athletes

The Department of Education Office of Civil Rights (OCR) has signaled a that it is reversing the Trump Administration's policy that did not permit transgender women to compete in women's high school sports. AP reported yesterday that in a court filing in a Connecticut federal district court, OCR and the Justice Department withdrew their support for plaintiffs in a lawsuit that challenges Connecticut's policy of allowing sports participation consistent with an athlete's gender identity.  Those opposing Connecticut's policy argue that transgender women who were born male have physical strength advantages in women's sports. Also yesterday, OCR sent a letter (full text) to attorneys for several Connecticut school districts saying that it is withdrawing a letter giving notice of impending enforcement that was sent by the Trump Administration. OCR says that the interpretation of Title IX in the Trump Administration letter "should not be relied upon in this or any other matter."

Scottish Court Lets Franklin Graham Move Ahead With Suit Over Cancelled Appearance

Last week, a Sheriff's Court in Scotland handed down an initial decision in a suit by evangelist Franklin Graham whose appearance at a large arena in Glasgow was cancelled by the arena operators after the Glasgow City Council complained that there was a potential for Graham to make homophobic and Islamophobic comments during his appearance.  In Billy Graham Evangelistic Association v. Scottish Event Campus Ltd., (Glasgow Sheriffdom, Feb. 16, 2021), the court held that it needed to hear evidence on Graham's claim that the cancellation of his event violated the Equality Act's prohibition on religious discrimination. Summarizing the arguments of the parties, the court said in part:

The defender’s case includes ... averments that there was potential for public order issues with the event....

The defender also avers... that "the staging of the event would bring the defender into disrepute and terminated the Contract on that basis. It did not terminate the event as a result of the religious views of the pursuer or Mr Franklin Graham."

Further ... the defender avers that: "It does not discriminate against any group or individual when deciding on whether to accept a booking. It was irrelevant to the defender that the pursuer was seeking to express religious views. The reason the Contract was terminated was due to the risk to the defender’s reputation arising from the risk of violent protests at a public event....

[However] The pursuer avers that the event was a forum for the proclamation of the Christian gospel in accordance with mainstream evangelical Christian teaching....

“The fact that the defender now avers that it does host a range of faith-based events to which it takes no objection – the defender offers as an example the annual conference of Jehovah’s Witnesses – shows precisely that the defender does operate a policy of discrimination against groups or individuals in that only those with views or religious positions which the defender deems to be ‘acceptable’ will be permitted to hire its premises.

Scottish Legal News reports on the decision. [Thanks to Frank Cranmer for the lead.]

India's Hindu Nationalist Government Cancels Scheduled Exam On Cows

New York Times reports that in India, Prime Minister Narendra Modi’s Hindu nationalist government has postponed offering a widely criticized exam on cows for which 500,000 people had already registered:

Critics said the curriculum, devised by the National Cow Commission set up by Mr. Modi’s government, was an especially bold move by his ruling party to push its  ideology and undercut the secularism that is enshrined in India’s Constitution but seems to be increasingly imperiled with each passing day....

Many academics see the fact that a government body tried to push a curriculum on cows — one that included many completely unsubstantiated claims — as evidence that the government has increasingly fallen under the sway of Hindu supremacist groups like the R.S.S., in which Mr. Modi and many top officials were once active....

The test was not made mandatory, but India’s University Grants Commission, a federal agency, encouraged students — in fact, all citizens — to study the material and take the exam as an extracurricular activity.

Critics across the country urged the cow commission to call off the exam, saying students would feel pressured by the government to take it. They said parents would urge their children to take the exam, because the government was planning to issue a certificate that could be helpful to the students’ future careers. The commission also dangled prize money for top scorers.

Canada's House of Commons Declares China's Actions Against Uighurs To Be Genocide

Yesterday Canada's House of Commons passed a non-binding resolution (full text) declaring that China's actions against its Uighur and other Turkic Muslim minorities-- including detention camps and measures intended to prevent births constitute genocide. The Global News reports:

The Conservative motion passed overwhelmingly in the House of Commons with 266 votes to zero. The Liberal cabinet abstained from voting.

An amendment to the motion, proposed by Bloc Quebecois MP Alexis Brunelle-Duceppe, calling on the International Olympic Committee to move the 2022 Olympic Games out of China if the genocide continues also passed 229 to 29 votes.

Supreme Court Denies Certiorari In Church Property Dispute

The U.S. Supreme Court today denied review in two related cases, All Saints Episcopal Church v. Diocese of Fort Worth (Docket No. 20-534) and The Episcopal Church v. Diocese of Fort Worth (Docket No. 20-536), certiorari denied 2/22/2021. (Order List.) In the cases, the Texas Supreme Court resolved a factional property dispute between a break-away congregation and The Episcopal Church. It held that using neutral principles, property of the diocese belongs to the withdrawing faction that affiliated with the more conservative Anglican Province of the Southern Cone. (See prior posting.)

Supreme Court Grants Review of Title X Rule Restricting Abortion Counseling

The U.S. Supreme Court today granted certiorari (Order List, 2/22/2021) in three related cases challenging a Final Rule promulgated by the Department of Health and Human Services in March 2019. (See prior posting.) The rule imposes new restrictions on health care providers receiving Title X family planning funds.  As described in the AMA's petition for certiorari:

The Rule both prohibits and compels certain pregnancy-related speech between a Title X provider and her patient, proscribing abortion related information but requiring information about non-abortion options—regardless of what the patient wants. The Rule also imposes burdensome physical separation requirements on any Title X provider engaging in abortion-related activities outside the Title X program.

The cases (with links to their SCOTUSblog case pages) are American Medical Association v. Cochran (Docket No. 20-429),  Cochran v. Mayor and City Council of Baltimore (Docket No. 20-454), and Oregon v. Cochran (Docket No. 20-539). The Hill reports on the Court's action.

Recent Articles of Interest

 From SSRN:

• Nicole Stelle Garnett, Religious Charter Schools: Legally Permissible? Constitutionally Required?, (Manhattan Institute Policy Report (December 2020)).
• Stijn Smet, Toleration and the Law, (AOV of chapter published in Mitja Sardoč (ed), The Palgrave Handbook of Toleration (Palgrave Macmillan, 2021)).
• Ram Rivlin, The Morality of “Get-Threats”: Withholding Divorce as Extortion, (I·CON - International Journal of Constitutional Law 18(3) 849–869 (2020)).
• Andrew R. DeLoach, What's the Use of Religious Freedom?,  (Journal of Christian Legal Thought, Vol. 10, No. 2 (2020).
• Barbara P. Billauer, Fundamentalism in Roman Catholic Diocese v. Cuomo: The Court’s Farrago of Religious Freedom, Public Health Law, and Scientific (Il)Literacy, (February 17, 2021).
• Christopher C. Lund, Sex Offenders and the Free Exercise of Religion, (Notre Dame Law Review, Vol. 96, p. 1025, 2021).
• Mark D. Martin, Bradley J. Lingo & Michael Schietzelt, A Center Dedicated to Preserving a Constitution Designed for a Moral and Religious People, (Regent University Law Review, Vol. 33, No. 1, p. 1 (2020)).
• Abigail Burman, Abortion Sanctuary Cities: A Local Response to The Criminalization of Self-Managed Abortion, (California Law Review, Vol. 108, No. 6, 2020).
• Kyle Velte, Mitigating the 'LGBT Disconnect': Title IX’s Protection of Transgender Students, Birth Certificate Correction Statutes, and the Transformative Potential of Connecting the Two, (American University Journal of Gender, Social Policy & the Law, Vol. 27, No. 29, 2019).

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

• Hannibal Travis, Ethnic Cleansing and Genocidal Intent: Conceptualizing Destruction of Local Populations, (Global Studies Law Review, Vol. 19, No. 4).
• Virginia Beard, Demanding Democracy and Rejecting Autocracy in Africa: The Role of Religion and Regime Experience,  (February 5, 2021).
• Abdullahi Abdulquadir, An Examination of the Methods of Revenue Generation by Kwara State Internal Revenue Service (KWIRS) from Islamic Law Perspective, (August 14, 2019).
• Md Tasnimul Hassan, Is India Demonizing Muslims in the Name of Freedom of Speech and Expression?, (November 12, 2020).

From SmartCILP:

• Symposium on Catholic Legal Education, Journal of Catholic Legal Studies, Vol. 58, No. 1.
• Maja Munivrana Vajda, The Right to Mock, Ridicule and Criticize Religion—Exploring the Limits of Free Speech in a Democratic and Just Society, 55 Gonzaga Law Review 273-290 (2019-2020).
• Rodrigo Cespedes, A Comparative Case Law Analysis of Religious Speech, Academic Freedom, and Religious Institutions' Autonomy on a Global Scale, 55 Gonzaga Law Review 291-308 (2019-2020).
• Laura De Pasqual, Freedom of Religion in a Multicultural Europe: The Achbita and Bougnaoui Cases, 55 Gonzaga Law Review 309-330 (2019-2020).
• Charles Adside III, It's a Blowhorn, Not a Dog-Whistle: How President Trump's Travel Ban Orders, Not His Statements, Are Enough to Establish a Violation under the Religion Clauses, 47 Hastings Constitutional Law Quarterly 267-302 (2020).
• Gilad Abiri, Divisiveness, National Narratives, and the Establishment Clause, 40 Pace Law Review 399-457 (2019).
• Joseph J. Martins, Losing Liberty: A Biblical Defense for the Freedom of Speech on Campus, 32 Regent University Law Review 345-386 (2019-2020).

South Carolina Fetal Heartbeat Abortion Act Enjoined

As previously reported, earlier this week (Feb. 18), South Carolina Governor Henry McMaster signed into law the Fetal Heartbeat Protection from Abortion Act, prohibiting an abortion if a fetal heartbeat is detected. One day later, in Planned Parenthood South Atlantic v. Wilson, (D SC, Feb. 19, 2021), a South Carolina federal district court issued a temporary restraining order barring enforcement of the Act, saying in part:

Because the Act bans abortion months before any fetus could be viable, ... Plaintiffs are likely to succeed on their claim that the Act is unconstitutional. Indeed, courts have “universally” invalidated laws that ban abortions beginning at a gestational age prior to viability.

CNN reports on the decision. [Thanks to Tom Rutledge for the lead.]

EEOC Lawsuit On Behalf of Fired Seventh Day Adventist Employee Settled

The EEOC announced this week that PepsiCo subsidiary Frito-Lay, Inc. has agreed to a 3-year consent decree requiring it to pay $50,000 to settle a religious discrimination lawsuit filed by the EEOC. The suit was filed on behalf of a Seventh Day Adventist employee of the company. The newly-promoted employee was fired after he refused on religious grounds to attend two Saturday training sessions. The consent decree also requires specialized training of human resources personnel and review at the regional staff level of future requests for religious accommodation. The EEOC commended the company for its cooperation in resolving the lawsuit.

Trump Impeachment Lawyer Interviewed About His Jewish Religious Observance

Jewish Press yesterday carried an interesting interview (full text) with David Schoen, one of  Donald Trump's lead impeachment trial defense lawyers. The paper describes the interview:

Two weeks ago, David Schoen – the lead lawyer for Donald Trump at his impeachment trial, and an Orthodox Jew – made headlines when he asked if the president’s trial could be suspended on Shabbos. Schoen’s observance became a hot topic again a few days later when he covered his head with his hand several times as took sips of water while speaking on the Senate floor.

The Jewish Press spoke to him yesterday about these and other topics.

South Dakota and South Carolina Pass New Abortion Provisions

This week the South Dakota legislature gave final passage, and sent to the Governor Noem for her signature, HB 1051 (full text) modifying the state's abortion laws. The bill further spells out the right in existing state law for a child born alive after an attempted abortion to have medical care.  The new bill defines "born alive". It also gives a mother as well as the child a cause of action for damages for the physician's negligence in attempting to perform the abortion. Finally it imposes additional reporting requirements on physicians and facilities performing abortions. Liberty Counsel issued a press release announcing the passage of the bill.

Meanwhile, as reported by The State, South Carolina Governor Henry McMaster yesterday signed into law S.1, the Fetal Heartbeat Protection from Abortion Act, prohibiting an abortion if a fetal heartbeat is detected. [Thanks to Scott Mange for the lead.]

President Biden Issues Statement On Ash Wednesday

Yesterday President Joe Biden issued a Statement on Ash Wednesday (full text), saying in part:

As we enter into the season of Lent, we know this moment of repentance, reflection, and renewal comes in the midst of a painful winter for our nation and the world.....

We pray for all those who have fallen on hard times and are worried about what morning will bring. Let us find strength in each other and faith that provides us purpose. And let us look with hope and anticipation toward Easter and brighter days ahead.

Canadian Court Refuses To Order Churches To Follow Health Orders Pending Hearing On Constitutionality

In Beaudoin v. British Columbia, (BC Sup. Ct., Feb. 17, 2021), a trial court in the Canadian province of British Columbia refused to issue an interlocutory injunction requiring three churches who are petitioners in the case to comply with COVID-19 public health orders banning in-person religious services in the province. The churches, clergy and another plaintiff filed suit challenging the public health orders as being in violation of the Canadian Charter of Rights and Freedoms. A hearing on this challenge is scheduled for March 1.  Pending that hearing, the government sought immediate injunctions to prevent the churches from continuing to hold in-person services. Refusing to issue the requested injunction, the court said in part:

I am left to wonder what would be achieved by the issuance of an injunction in this case....

When asked, counsel for the respondents said that the respondents accept that the petitioners’ beliefs are deeply held, but in response to my question as to why an injunction was sought, responded that while the petitioners and others like them are not dissuaded from their beliefs and practices by the impugned orders, an order from this Court is more likely to accomplish their compliance.

Given the other remedies available to the respondents, I have reservations that an injunction alone, without enforcement by the B.C. Prosecution Service, would overcome the deeply held beliefs of the petitioners and their devotees.... 

Vancouver Sun reports on the decision.

Jordan's Judicial Council Changes Court System For Small Evangelical Denominations

Religion News Service reports that Jordan's Judicial Council, apparently responding to growing tension between Orthodox Christians and Evangelicals, has issued a memo changing the legal status of some 60 smaller Christian denominations in the country:

In Jordan, the legal system is divided into civil courts, where commercial and criminal cases are heard, and separate religious courts that settle matters of marriage, divorce and child custody according to canon law for the majority-Muslim population and for the 11 recognized Christian communities.

While United Pentecostal and Jehovah’s Witnesses members are allowed their own ecclesiastical courts, legal matters for members of nearly 60 other Protestant churches are heard in civil court, or, for minor matters, work through the court of the Anglican Church, one of the 11 approved denominations.

But on Feb. 5, in response to [Greek Orthodox Archbishop] Atallah’s letter, Judge Mohammad Al Ghazo, who heads Jordan’s Judicial Council, issued a memo disqualifying any Christian without an approved ecclesiastical court from using the civilian courts. Cases would instead be referred to the Council of Church Leaders, a government advisory body.

Evangelicals fear that the change could endanger the validity of past marriages performed in evangelical churches. Orthodox proponents say that the concern is a proliferation of small separate ecclesiastical courts.

Cert. Petition Filed In Ecclesiastical Abstention Case

A petition for certiorari (full text) was filed in the U.S. Supreme Court yesterday in North American Mission Board of the Southern Baptist Convention, Inc. v. McRaney, (cert. filed 2/17/2021). In the case the U.S. 5th Circuit Court of Appeals, by a vote of 9-8, denied en banc review of a panel decision that had refused to invoke the ecclesiastical abstention doctrine in a dispute between the Mission Board and its former executive director. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

Cert Filed In Case On Curricular Treatment of Hinduism

A petition for certiorari (full text) was filed this week in the U.S. Supreme Court in California Parents for the Equalization of Educational Materials v. Torlakson,(cert. filed 2/16/2021). In the case,  the U.S. 9th Circuit Court of Appeals upheld the dismissal of a suit claiming that California's History-Social Science Standards and Framework incorrectly describe Hinduism and treat it negatively in relation to the treatment of other religions. (See prior posting.) The cert petition frames the question presented as:

Whether the Free Exercise Clause permits the government to single out a religion for disfavored treatment so long as it does not “substantially burden” religious exercise.

[Thanks to Glenn Katon for the lead.]

Suit Challenges Disqualification of Ministers Ordained Online As Marriage Officiants

Suit was filed yesterday in a Pennsylvania federal district court seeking to declare unconstitutional the position taken by the Bucks County, Pennsylvania clerk of courts that ministers who were ordained online may not solemnize marriages under Pennsylvania law. Apparently the county takes the position that those ordained online are not clergy of a "regularly established church or congregation", as required by 23 Pa. Cons. Stat. Ann. § 1503. The complaint (full text) in Universal Life Church Monastery Storehouse v. Bobrin, (ED PA, filed 2/16/2021), alleges that this interpretation violates the Free Exercise, Establishment and Equal Protection Clauses, saying in part:

... Defendant has used the powers of her office to discourage ULC Monastery ministers from exercising rights afforded to ministers of other religions. Defendant’s apparent policy of discrimination unconstitutionally prefers certain religions or religious denominations over others and burdens ULC Monastery’s and its ministers’ free exercise of religion. To the extent Defendant is correct that 23 Pa. Cons. Stat. Ann. § 1503 bars ULC Monastery ministers from solemnizing marriages while granting that benefit to ministers of other religious denominations, the statute is unconstitutional.

Universal Life Church issued a press release announcing the filing of the lawsuit.

8th Circuit: Arkansas Anti-Boycott of Israel Law Violates 1st Amendment

In Arkansas Times LP v. Waldrip, (8th Cir., Feb. 12, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, struck down an Arkansas' statute requiring businesses that enter contracts with public entities to certify that they will not engage in any boycott of Israel. "Boycott of Israel" is defined in the statute as "engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel...." The majority said in part:

Considering the Act as a whole, we conclude that the term “other actions” in the definition of ... “boycott of Israel” encompasses more than “commercial conduct” similar to refusing to deal or terminating business activities. Instead, the Act [also] requires government contractors ... to limit their support and promotion of boycotts of Israel. As such, the Act restricts government contractors’ ability to participate in speech and other protected, boycott-associated activities.... Therefore, the Act imposes a condition on government contractors that implicates their First Amendment rights.

Judge Kobes dissented.  Courthouse News Service reported on the decision.

9th Circuit Rejects Church's Challenge On COVID Restrictions

In Gateway City Church v. Newsom, (9th Cir., Feb. 12, 2021), the U.S. 9th Circuit Court of Appeals upheld a Santa Clara County, California COVID-19 Order that prohibits all indoor gatherings, including worship services. The court said in part:

The challenged ban on indoor “gatherings” ... applies equally to all indoor gatherings of any kind or type, whether public or private, religious or secular. The Directive, which appears to affect far more activities than most other jurisdictions’ health measures, does not “single out houses of worship” for worse treatment than secular activities.

Santa Clara County issued a press release announcing the decision.

Exchange of Apache Sacred Land Does Not Violate RFRA or Free Exercise Clause

 In Apache Stronghold v. United States, (D AZ, Feb. 12, 2021), an Arizona federal district court refused to issue a preliminary injunction to prevent a land exchange between the federal government and two foreign mining companies known as Resolution Copper. The land to be conveyed to Resolution Copper contains a sacred Apache ceremonial ground know as Oak Flat. In addition to rejecting treaty claims, the court concluded that plaintiff has not shown a likelihood of prevailing on its claims under the Free Exercise clause and RFRA, saying in part:

Plaintiff has not been deprived a government benefit, nor has it been coerced into violating their religious beliefs. The Court does not dispute, nor can it, that the Government's mining plans ... will have a devastating effect on the Apache people's religious practices.... However, Oak Flat does not provide the type of "benefit" required under RFRA jurisprudence....

The Southeast Arizona Land Exchange and Conservation Act is facially neutral, and Plaintiff has provided no evidence of any discriminatory intent behind its passage....

Apache Stronghold issued a press release announcing the decision.

New Arkansas Law Limits COVID Restrictions On Religious Organizations

On Feb. 9, Arkansas Act 94 (Religion Is Essential Act) (full text) was signed by Gov. Asa Hutchinson and immediately went into effect. The new law provides that the Governor nor the State Board of Health

shall not prohibit or limit a religious organization from continuing to operate or engage in religious services during a disaster emergency under this subchapter.

The law however does permit requiring: 

religious organizations to comply with neutral health, safety, or occupancy requirements issued under state or federal law that are applicable to all organizations and businesses.

The law goes on to provide, however, that such requirements may not impose a substantial burden on a religious organization unless it is shown to be essential to further a compelling governmental interest and is the least restrictive means of doing so.

"Religious organizations" are broadly defined in the new law to include houses of worship, religious educational institutions and religious leaders, among others.

Another Church Seeks Supreme Court's Intervention On COVID-19 Restrictions

Continuing the flow of cases asking the U.S. Supreme Court to intervene to allow churches to to hold worship services at greater capacity than allowed by state COVID-19 orders, an emergency application for an injunction or summary reversal (full text) was filed with the Supreme Court on Feb. 11 in Calvary Chapel of Bangor v. Mills. In the case, the U.S. 1st Circuit Court of Appeals held that the district court's denial of a temporary restraining order was not appealable before the district court rules on the church's preliminary injunction request. (See prior posting.) Liberty Counsel issued a press release announcing the filing.

Discrimination Claim By Muslim Employee of Sheriff's Office Is Dismissed

In Domino v. County of Essex, (D NJ, Feb. 11, 2021), a New Jersey federal district court dismissed, without prejudice, a religious discrimination and hostile work environment claim brought by an African American Muslim male who was employed by the Bureau of Criminal Identification in the Essex County (NJ) Sheriff's Office. Plaintiff complained that a series of actions by the sheriff that variously ordered no beards, limited the length of beards and required documentation from his Imam of plaintiff's religious observance infringed his rights under various statutes and constitutional provisions. The court dismissed plaintiff's Title VII claim for failure to exhaust administrative remedies. It dismissed his equal protection claim for failure to allege a discriminatory purpose. It also dismissed claims under New Jersey civil rights laws.

Recent Articles of Interest

 From SSRN:

• Harry G. Hutchison, The Collision of Social Justice Perfectionism, Rival Faiths, and Ordered Liberty: Review Essay: Mark T. Mitchell, The Unholy Marriage that Spawned America's Social Justice Warriors, (January 25, 2021).
• Tory L. Lucas, Greed and the Seven Deadly Sins: Treacherous for the Soul and Legal Ethics, (Regent University Law Review, Vol. 33, No. 1, 2020-2021).
• Gary J. Simson, Constitutional Law and the Culture Wars: When Religious Liberty and the Law Conflict, Which Should Prevail?,  (Freedom and Society: Essays on Autonomy, Identity, and Political Freedom; Yi Deng, Creighton Rosental, Robert Scott, and Rosalind Simson eds., Forthcoming Spring 2021).
• Taylor Holley, Auditing Scientology: Reexamining the Church's 501(c)(3) Tax Exemption Eligibility, (February 1, 2021).
• Erez Aloni, First Comes Marriage, Then Comes Baby, Then Comes What Exactly?, (15 National Taiwan University Law Review (2020)).
• MaryScott Polk, What to Do With Leftovers: Collecting Earmarked Donations Through Mobile Payment Apps, (January 24, 2021).
• Leora Bilsky, The Virtues of Comparing: Between Early Jewish Restitution Campaign and Contemporary Post-Colonial Restitution Debate, (Art Antiquity and Law, Forthcoming 2021).

From SSRN (Commonwealth Nations):

• Merilin Jacob, The Dirty Play of Politics on the Citizenship Amendment Act, (December 4, 2020).
• Howard Kislowicz, Law, Faith, and Canada’s Unwritten Constitution, (25.1 Review of Constitutional Studies (Forthcoming)).
• Scott Stephenson, Dignity and the Australian Constitution, (2020) 42 Sydney Law Review 369–94.

From SSRN (Islamic Law):

• Hassan Ahmad, Re-Assessing the Evidentiary Threshold for Zinā’ in Islamic Criminal Law: A De Facto Exemption Proposal, (Muslim World J Hum Rts (2021 Forthcoming)).
• Drishti Suri, Parties Inspired by Islam, Discursive Practices and Democracy - a Re-evaluation of the FIS (October 11, 2020).
• Edana Richardson & Simon O'Neill, Islamic Mortgage-Alternatives in Ireland: A Comparative Reflection on a Decade of Consumer Appetite in the Face of Legislative Uncertainty, ((2020) 4 Conveyancer and Property Lawyer 275-295).
• Fajari Muhammadin, Limits of Deception in Islamic Laws of War: The Case of Civilian Disguises in Suicide Attacks, (Ulul Albab: Jurnal Studi dan Pemikiran Hukum Islam, Vol. 4 No. 1 (2020)).
• Tal Mimran, The Islamic State of Horror – Who is Responsible for Atrocities Committed in the Territory of the Self-Declared Islamic State (Daesh)?, (Indiana International & Comparative Law Review, Forthcoming).

From SSRN (Jewish Law):

• Levi Cooper, Jewish Law in the Beit Midrash of Hasidism, (Diné Israel 34 (2020), 51-110).
• Elimelech Westreich & Avishalom Westreich, Jewish Law: Marriage, (Routledge Handbook of Religious Law (2019)).

Biden Re-Establishes White House Faith-Based Partnerships Office

Yesterday President Joseph Biden issued an Executive Order (full text) once again establishing a White House Office of Faith-Based and Neighborhood Partnerships. The accompanying Fact Sheet says in part:

The Partnerships Office’s initial work will include collaborating with civil society to: address the COVID-19 pandemic and boost economic recovery; combat systemic racism; increase opportunity and mobility for historically disadvantaged communities; and strengthen pluralism. The office will also support agency partnerships that advance the United States Government’s diplomatic, international development, and humanitarian work around the world....

Fundamental to these goals is respecting our cherished guarantees of church-state separation and freedom for people of all faiths and none.... The Partnerships Office, for example, will not prefer one faith over another or favor religious over secular organizations. Instead, it will work with every willing partner to promote the common good, including those who have differences with the Administration.

According to the Fact Sheet, Melissa Rogers will serve as Executive Director of the Faith Based and Neighborhood Partnerships Office, and as Senior Director for Faith and Public Policy in the White House Domestic Policy Council. Josh Dickson will serve as the Office's Deputy Director.

Humanist Organization Lacks Standing To Challenge Texas Ban On Secular Marriage Celebrants

 In Center for Inquiry, Inc. v. Warren, (5th Cir., Feb. 10, 2021), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a suit by a secular humanist organization challenging as an Establishment Clause violation Texas law that refuses to allow secular celebrants to conduct marriage ceremonies. The court held that plaintiffs are asking for relief that does not remedy their injury in full, explaining:

The appellants are seeking relief that would essentially compel ... [the] Dallas County Clerk, to record marriages conducted by secular celebrants such as themselves. However, even if such relief were hypothetically granted, it would not fully redress the injuries for which the appellants bring suit. Here, the appellants’ injuries relate to the barrier to legally solemnize marriages. But even if they prevail in this litigation, relief would be incomplete because the appellants would still be subject to criminal prosecution. In other words, the barrier to legally solemnizing marriages would nevertheless remain.

No Injunction Against Sound Ordinance Because City Disclaims Enforcement Pending Revision

In Abolish Abortion Oregon v. City of Grants Pass, (D OR, Feb. 12, 2021), an Oregon federal district court refused to issue a preliminary injunction against enforcement of the city's Sound Ordinance sought by an organization of Christian evangelists and anti-abortion advocates. Plaintiffs contended that enforcement violates their free speech and free exercise rights. The city, however, has conceded that the current Sound Ordinance is probably unconstitutional and says it is revising the Ordinance. It has also said it will not enforce the Ordinance during the revision process.

Court Says Quebec Worship Limits Apply To Capacity for Each Room

Canadian Lawyer reports on a decision interpreting Quebec's COVID-19 limits on indoor worship services:

Current restrictions on indoor religious gatherings in Montreal means that a maximum of 10 people may congregate in each room of a house of worship, as long as each has a separate entrance or access to the street, the Quebec Superior Court of Justice has ruled in interpreting public health regulations during COVID-19.

Superior Court Justice Chantal Masse’s decision on Feb. 5 ended the legal battle of the Quebec Council of Hasidic Jews and several Jewish congregations, which successfully argued the 10-person limit per synagogue was unacceptable and violated freedom of religion....

Supreme Court Allows Execution Only If Clergy of Choice Allowed In Execution Chamber

As reported by SCOTUSblog, in a jigsaw puzzle-like set of opinions and orders the U.S. Supreme Court last night just before midnight Eastern Time allowed Alabama to move ahead with the execution of convicted murderer Willie Smith-- but only if the state allowed him to have the Pastor of his choice with him in the execution chamber. In Dunn v. Smith, (US Sup. Ct., Feb. 11, 2021), a majority of the Court refused to lift an injunction issued the day before by the 11th Circuit (see prior posting) holding that Alabama's exclusion of all clergy from the execution chamber violates RLUIPA. The order refusing to vacate the 11th Circuit's injunction was unsigned. However Justice Kagan wrote a concurring opinion, joined by Justices Breyer, Sotomayor and Barrett, saying that RLUIPA "sets a high bar for Alabama to clear." They added:

Prison security is, of course, a compelling state interest. But past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber. Until two years ago, Alabama required the presence of a prison chaplain at an inmate’s side. (It gave up the practice only when this Court barred States from providing spiritual advisors of just one faith.) Still more relevant, other jurisdictions have allowed clergy members with no connection to the government to attend an inmate’s execution.... , dissenting from denial of application to vacate injunction). Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, dissented, saying in part:

Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.

Justice Thomas indicated (without joining the dissenting opinion) that he would have vacated the 11th Circuit's injunction.   Neither Justice Alito or Gorsuch indicated how they voted, but at least one of them would have had to agree with the 11th Circuit for the majority vote which the Court's unsigned Order commanded.

But this did not end the matter because there was also another outstanding stay of execution in the case which the 11th Circuit had granted on Feb. 10 in order to consider a different challenge to the execution. The Supreme Court yesterday vacated that stay (Order List) so that the execution, with the Pastor present, could move ahead.

As reported by SCOTUSblog, in the end the execution was not carried out because the execution warrant expired a midnight Central Time, only one hour after the Supreme Court orders were handed down.

High School Soccer Rules Changed To Allow Religious Headwear

The National Federation of State High School Associations announced yesterday that it has amended it Soccer Rules Book to allow players to wear religious headwear without prior approval by the respective state association.

11th Circuit: Pastor Should Be Allowed In Execution Chamber

In Smith v. Commissioner, Alabama Department of Corrections, (11t Cir., Feb. 10, 2021), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, reversed an Alabama district court's denial of an injunction to an inmate seeking to have his pastor present in the execution chamber with him. Prison rules allow only members of the execution team and certain medical personnel to be present. Focusing on RLUIPA, the majority said in part:

Although it correctly found Smith had a sincere belief that Pastor Wiley should be present in the execution chamber, the court erred by finding Smith’s exercise of that belief was not substantially burdened simply because Smith expressed a “preference” rather than prove his belief was fundamental to his religion. The court also improperly relied on alternative ways that Smith could practice his religion, including that Smith can visit and pray with Pastor Wiley leading up to his execution and Pastor Wiley can observe the execution from the viewing room.

The majority went on to conclude that while the state has a compelling interest in prison security, its policy is not the least restrictive means of achieving that interest.  It could, as does the federal prison system, require the prisoner to designate his spiritual advisor as soon as an execution date is set so that the state can conduct a background check.

Judge Jordan dissented, saying in part:

Whether the district court got RLUIPA’s least restrictive means requirement right or wrong, I do not believe that its decision constitutes an abuse of discretion.

Minnesota Diocese Settles Clergy Sex-Abuse Claims In Bankruptcy Reorganization

According to WXOW News, the Catholic Diocese of Winona-Rochester, Minnesota which filed for bankruptcy reorganization in 2018 has agreed with its creditors' committee to settle clergy sex-abuse claims from 145 claimants for $21.5 million. The diocese also issued an apology to victims. The settlement must still be approved by the court in the final plan of reorganization.

New York COVID-19 Restrictions On Houses of Worship Enjoined

In a case on remand from the 2nd Circuit, a New York federal district court (without opposition from the state) has issued an injunction against New York state's COVID-19 restrictions on houses of worship.  The court in Agudath Israel of America v. Cuomo, (ED NY, Feb. 9, 2021) said in part:

In light of the decisions by the Supreme Court, Roman Catholic Diocese of Brooklyn, N.Y. v. Cuomo ... and the Second Circuit, Agudath Israel of Am. v. Cuomo ..., specifically finding that “both the fixed capacity and percentage capacity limits on houses of worship” in  the red and orange zones “are subject to strict scrutiny,” ... Defendant has agreed to an injunction against enforcement of the 25% and 33% capacity limits in red and orange zones, respectively.... Subsequently, Defendant’s counsel has represented in status conferences that before the end of February 2021 EO 202.68 will be amended to remove houses of worship.

For the foregoing reasons, the court grants a permanent injunction against enforcement of EO 202.68’s 25% capacity or maximum of 10-people, and 33% capacity or maximum of 25-people limitations on houses of worship, respectively in red and orange zones.

Becket issued a press release announcing the decision.

7th Circuit En Banc Hears Arguments In Ministerial Exception Case

The full U.S. 7th Circuit Court of Appeals, sitting en banc, yesterday heard oral arguments in Demkovich v. St. Andrew the Apostle Parish. (Audio of full oral arguments.) In the case, a 3-judge panel of the 7th Circuit held by a 2-1 vote that the ministerial exception doctrine does not bar hostile work environment claims brought by a ministerial employee where no tangible employment action was taken.  In the case, the music director of a Catholic church alleged that his supervisor harassed an humiliated him about his sexual orientation, as well as his weight and his medical issues. (See prior posting.)  Becket has more on the case.

Jewish Camps Sue County Claiming Discrimination

Suit was filed last week in a New York federal district court by an Orthodox Jewish organization that operates two summer camps in the Catskill Mountains. The complaint (full text) in Oorah, Inc. v. Schoharie County, N.Y., (ND NY, filed 2/5/2021), alleges in part:

2. Over the past decade, Oorah has time and again been subjected to official action discriminating against it on the basis of its Orthodox Jewish character by Defendants. The goal of these arbitrary and discriminatory actions has been to thwart the operation of Oorah’s religious programs and to deter Oorah’s staff, volunteers and participants from the practice of their Jewish faith. Oorah has repeatedly been forced to obtain relief against Schoharie County in the state courts in order to allow it to operate its religious facilities.

3. This hostility rose to a crescendo in 2020, when Defendants... exploited the COVID-19 pandemic to shut down Oorah’s operations completely in an illegal,  premeditated, arbitrary and discriminatory manner.

Yeshiva World reports on the lawsuit.

11th Circuit: Anti-Abortion Protesters Challenge To Permit Requirements Rejected

In Henderson v. McMurray, (11th Cir., Feb. 9, 2021), the U.S. 11th Circuit Court of Appeals dismissed free speech, free exercise and due process challenges to Huntsville, Alabama's application of its permit requirements to activities of James and Carol Henderson, two anti-abortion protesters. When abortion rights counter-protesters drowned out the sidewalk counseling and prayers of the Hendersons, the Hendersons resorted to using amplification devices. This triggered the need for them to obtain a permit under Huntsville's municipal code. In dismissing the Hendersons' various challenges, the court concluded that they failed to plead facts showing that they did not have ample alternative channels of communication or that the limits on noise in their permit were a pretext for viewpoint discrimination. The court also held that the noise limits in the permit were not unconstitutionally vague and that the free exercise claim does not trigger strict scrutiny.

Court Orders Religious Dietary Accommodation For Capitol Riot Shaman

On Jan. 9, the U.S. Department of Justice announced that  Jacob Anthony Chansley was one of three men charged in connection with the the invasion of the Capitol building on Jan. 6. According to the DOJ release:

... Chansley was identified as the man seen in media coverage who entered the Capitol building dressed in horns, a bearskin headdress, red, white and blue face paint, shirtless, and tan pants. This individual carried a spear, approximately 6 feet in length, with an American flag tied just below the blade.

By late January, Chansley was held in custody in the D.C. jail where he filed a request for a religious dietary accommodation. He sought a diet of only organic food because he is a Shamanic practitioner. When the request was denied, Chansley filed an emergency motion in the D.C. federal district court.  In United States v. Chansley, 2021 U.S. Dist. LEXIS 22788 (D DC, Feb. 3, 2021), the court handed down a lengthy opinion ordering the dietary accommodation, saying in part that:

... RLUIPA and the First Amendment provide prisoners with powerful mechanisms to challenge aspects of their confinement that substantially burden religious free exercise....

Ordinarily ... Free Exercise challenges to neutral and generally applicable laws post-Smith merit only rational basis review, under which the DOC's dietary rules would be presumptively valid. But the Court finds that Smith does not govern the present inquiry for two independent reasons. First, unlike the neutral and generally applicable drug law at issue in Smith itself, the DOC's decision to deny defendant a dietary religious exemption is more akin to an "individualized governmental assessment" of his religious conduct....

Second, Smith is inapposite because the DOC's policy is neither neutral nor generally applicable.... [T]he DOC provides dietary religious exemptions for both Muslim and Jewish inmates. Its sole rationale for withholding an analogous accommodation for defendant is that his religious views lack "religious merit." But that derisive language simply underscores the fact that not only is the DOC withholding a religious exemption for defendant that it already grants to other religious prisoners, but that it is doing so simply because defendant belongs to a disfavored sect....

Third, defendant has shown that the DOC's refusal to provide him with an all-organic diet is a substantial burden—both subjectively and objectively—to his religious beliefs....

Apparently the D.C. jail was unable to comply with the court's order, and Chansley was transferred to another federal facility that could comply. (See Court's Memorandum of Feb. 4, 2021). ABC11 reports on developments.

Factional Dispute In Church Dismissed

 In New Covenant Church, Inc. v. Futch, (SD GA, February 5, 2021), a Georgia federal district court dismissed on qualified immunity, as well as other, grounds a dispute described by the court as follows:

This case arises from two feuding family factions which both lay claim to a small church in Brunswick, Georgia, one faction’s exclusion of the other from the church for a period of time, and several Brunswick police officers’ role in that exclusion....

Plaintiffs allege that Defendants [police officers] ... violated Plaintiffs’ First Amendment rights to free exercise of religion ... by: allowing nonmembers of New Covenant to seize and lock it down for ten weeks; threatening to arrest New Covenant members who entered the property; preventing New Covenant members from worshipping; and permitting the Armstrong sisters and others to steal New Covenant’s property. ...

The court found that the officers did not violate a clearly established constitutional right, saying in part:

Defendants ... did not “regulate religious beliefs,” but instead “impose[d] restrictions affecting religious conduct” by allowing the church to be locked up.... The second threshold test is also satisfied; the facts show that Defendants’ actions were not “aimed at impeding religion,” but were instead aimed at maintaining the peace while the parties settled a bitterly contested property dispute.

The court also dismissed due process, 4th Amendment and false imprisonment claims.

Recent Articles of Interest

 From SSRN:

• Yoram Rabin, Yaniv Vaki & Isaac Becker, From Ancient Israel to Modern Israel: The Historical Development of the Protection of a Fetus in Criminal Law, (50 Israel Yearbook on Human Rights 149 (2020).
• Barbara P. Billauer, Religious Freedom vs. Compelled Vaccination: A Case-Study of the 2018–2019 Measles Pandemic - or The Law as a Public Health Response, (January 29, 2021).
• Kathleen Brady, COVID-19 and Restrictions on Religious Worship: From Nondiscrimination to Church Autonomy,  (Forthcoming Fides et Libertas).
• Justin Aimonetti & Christian Talley, Religious Exemptions As Rational Social Policy. (University of Richmond Law Review, Vol. 55, 2021).
• Levi Cooper, Pandemics in the Promised Land: The Hasidic Experience, (Australian Journal of Jewish Studies 33 (2020): 5-26).
• Xavier Foccroulle Menard & Anna Su, Liberalism, Catholic Integralism, and the Question of Religious Freedom (January 15, 2021).
• Audrey Macklin, Working Against and With the State: Hospitality from Sanctuary to Resettlement, (December 12, 2020).
• Carl H. Esbeck, The Establishment Clause: Its Original Public Meaning and What We Can Learn from the Plain Text, (22 Federalist Society Review 26 (2021)).
• Jerameel Kevins, Should Kenya Follow the Path Set by Argentina in Decriminalizing Abortion? (January 8, 2021).
• Caroline Henckels, Ronli Sifris & Tania Penovic, Dignity as a Constitutional Value: Abortion, Political Communication and Proportionality, (Federal Law Review (2021).

From SSRN (Islamic Law):

• Rifai Sulaiman Lebbe, Religious Freedom in Theory and Practice in Sri Lanka, (December 23, 2020).
• Nizamuddin Ahmad Siddiqui, The Law and Politics of the Muslim Minority Citizen, (September 12, 2020).
• Ayub Mukhammadiev, Civil Law Principles in Fiqh of Islamic Law, (TJL -Tematics Journal of Law, Vol-4-Issue-12-December-2020).
• Afrasiab Ahmed Rana & Waqar Ahmad Janjua, Sharī‘ah Governance in Islamic Banking Industry: A Critical Review, (September 19, 2020).
• Afrasiab Ahmed Rana, Essentials of a Valid Contract: A Comparative Study of Islamic Law and the Contract Act, 1872, (November 18, 2020).

From SmartCILP and elsewhere:

• Musafa Aijazuddin, Protection of Religious and Ethnic Minorities before the Genocide Convention, 16 Loyola University Chicago International Law Review 145-176 (2020).
• Shlomo C. Pill, Jewish Law Perspectives on Judicial Settlement Practice, 20 Pepperdine Dispute Resolution Law Journal 227-251 (2020).
• Journal of Law & Religion, Vol. 35, No. 3, Dec. 2020.

Ministerial Exception Applies To Whistleblower Act Claim

In Rehfield v. Diocese of Joliet, (IL Sup. Ct., Feb. 4, 2021), the Illinois Supreme Court held that the ministerial exception doctrine applies to require dismissal of a suit alleging retaliatory discharge in violation of the state's Whistleblower Act. In the suit, the principal of a Catholic elementary school alleged that her employment was terminated because she reported a parent's threatening conduct to police. After discussing prior Supreme Court and Circuit Court precedent, the court said:

In light of the consistent body of authority discussed above, we decline to hold that plaintiff’s whistleblower claim is exempt from application of the ministerial exception. We note, however, that our holding is confined to the claim at issue in this case. We express no opinion on whether the exception bars a suit filed in any case other than the one before us.

The court also concluded that the principal was a "minister" for purposes of the ministerial exception, saying in part: 

although her formal title (“lay principal”) does not necessarily indicate a religious role, it is apparent from the record that plaintiff’s job duties entailed numerous religious functions in furtherance of the school’s Catholic mission.

Cert. Petition Filed In Maine's Tuition Reimbursement Controversy

A petition for certiorari (full text) was filed with the U.S. Supreme Court last Thursday in Carson v. Makin. In the case, 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. Religious high schools do not qualify. (See prior posting.) Institute of Justice issued a press release  announcing the filing of the lawsuit. [Thanks to Michael Bindas and Chris Freund for the lead.]

New Hampshire Priest Sues Conservative Catholic Website For Defamation

A suit alleging defamation and intentional infliction of emotional distress was filed last Friday in a New Hampshire federal district court by a New Hampshire Catholic priest against the controversial Church Militant website and persons affiliated with it. The complaint (full text) in de Laire v. Voris, (D NH, filed 2/5/2021), contends that false attacks on the character of Father Georges de Laire were published on the traditionalist website and on YouTube by Gary Michael Voris, his Church Militant media company and another reporter for the company. The false attacks began after Father de Laire issued a decree banning the New Hampshire-based St. Benedict Center from holding itself out as being affiliated with the Catholic Church or purporting to hold Roman Catholic religious services on its property.  According to the complaint, St. Benedict Center champions the views put forward in the 1940's by Father Leonard Feeney who "became known for incendiary and hate-filled speeches, primarily anti-Semitic in nature." Feeney was ultimately expelled from the Jesuit Order and excommunicated from the Catholic Church over these views and another doctrinal disagreement. [Thanks to Eugene Volokh via Religionlaw for the lead.]

Supreme Court Enjoins, Pending Appeal, California's Total Ban On Indoor Worship Services

Yesterday, in another decision on the Court's so-called "shadow docket", the U.S. Supreme Court in South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., Feb. 5, 2021), enjoined while a petition for certiorari is pending a portion of California's restrictions on indoor worship services. Last month, the 9th Circuit upheld the restrictions. Now the Supreme Court temporarily enjoined enforcement of the state's total ban on indoor worship services in areas of the highest COVID-19 infection ("Tier I"). However it refused to enjoin the state's 25% capacity limits on worship services in Tier I, and refused to enjoin its ban on singing and chanting during services. The Court, in its unsigned order, added:

This order is without prejudice to the applicants presenting new evidence to the District Court that the State is not applying the percentage capacity limitations or the prohibition on singing and chanting in a generally applicable manner.

Chief Justice Roberts filed a brief concurring statement, saying in part:

[F]ederal courts owe significant deference to politically accountable officials with the “background, competence, and expertise to assess public health.”... At the same time, the State’s present determination—that the maximum number of adherents who can safely worship in the most cavernous cathedral is zero—appears to reflect not expertise or discretion, but instead insufficient appreciation or consideration of the interests at stake.

Justice Barrett, joined by Justice Kavanaugh, filed a brief concurring opinion. 

Justices Thomas, Gorsuch and Alito would also have enjoined the capacity limits and the ban on singing and chanting. However Justice Alito would have postponed the injunction on capacity limits for 30 days to give the state an opportunity to show that these limits are narrowly drawn to reduce COVID spread to the same extent as limits on other essential activities. Justice Gorsuch, joined by Justices Thomas and Alito, filed an opinion explaining their position, saying in part:

Since the arrival of COVID–19, California has openly imposed more stringent regulations on religious institutions than on many businesses....

Of course we are not scientists, but neither may we abandon the field when government officials with experts in tow seek to infringe a constitutionally protected liberty. The whole point of strict scrutiny is to test the government’s assertions, and our precedents make plain that it has always been a demanding and rarely satisfied standard....

Drafting narrowly tailored regulations can be difficult. But if Hollywood may host a studio audience or film a singing competition while not a single soul may enter California’s churches, synagogues, and mosques, something has gone seriously awry.

Justice Kagan, joined by Justices Breyer and Sotomayor, dissented, saying in part:

California’s response to the COVID pandemic satisfies that neutrality rule by regulating worship services the same as other activities “where large groups of people [come together] in close proximity for extended periods of time.”... The restricted activities include attending a worship service or political meeting; going to a lecture, movie, play, or concert; and frequenting a restaurant, winery, or bar. So the activities are both religious and secular—and many of the secular gatherings, too, are constitutionally protected....

The Court has decided that the State must exempt worship services from the strictest aspect of its regulation of public gatherings. No one can know, from the Court’s 19-line order, exactly why: Is it that the Court does not believe the science, or does it think even the best science must give way? In any event, the result is clear: The State may not treat worship services like activities found to pose a comparable COVID risk, such as political meetings or lectures. Instead, the State must treat this one communal gathering like activities thought to pose a much lesser COVID risk, such as running in and out of a hardware store. In thus ordering the State to change its public health policy, the Court forgets what a neutrality rule demands. The Court insists on treating unlike cases, not like ones, equivalently.

Vox reports on the decision, with particular attention to Justice Barrett's opinion-- her first signed opinion since joining the Court.

Biden Speaks At National Prayer Breakfast

President Biden yesterday delivered taped remarks at this year's National Prayer Breakfast. (Video of full remarks.) AP reported on the event, saying in part:

The event went entirely virtual this year because of the coronavirus pandemic, with Biden and all other speakers appearing via taped remarks. Four living former presidents sent messages to the breakfast, with three speaking on tape while Coons read a message from former President Jimmy Carter — making Trump’s absence conspicuous.

AP Report Critical of Catholic Church's Participation In Paycheck Protection Program

AP yesterday published an investigative report critical of the Catholic Church's participation in the COVID-19 Paycheck Protection Program.  The report says in part:

As the pandemic began to unfold, scores of Catholic dioceses across the U.S. received aid through the Paycheck Protection Program while sitting on well over $10 billion in cash, short-term investments or other available funds....

Overall, the nation’s nearly 200 dioceses, where bishops and cardinals govern, and other Catholic institutions received at least $3 billion. That makes the Roman Catholic Church perhaps the biggest beneficiary of the paycheck program....

Church officials have said their employees were as worthy of help as workers at Main Street businesses, and that without it they would have had to slash jobs and curtail their charitable mission as demand for food pantries and social services spiked. They point out the program’s rules didn’t require them to exhaust their stores of cash and other funds before applying....

By using a special exemption that the church lobbied to include in the paycheck program, Catholic entities amassed at least $3 billion — roughly the same as the combined total of recipients from the other faiths that rounded out the top five.... Baptist, Lutheran, Methodist and Jewish faith-based recipients also totaled at least $3 billion. Catholics account for about a fifth of the U.S. religious population while members of Protestant and Jewish denominations are nearly half....

Imam Sues Alabama Over Exclusion of Clergy From Execution Chamber

Yesterday a Muslim imam filed suit in an Alabama federal district court challenging prison rules that preclude him from being present in the execution chamber with inmates sentenced to death. The complaint (full text) in Maisonet v. Dunn, (SD AL, filed 2/4/2021), alleges that a change in execution policy in 2019 that now excludes all religious advisors from the execution chamber was adopted

for the purpose of excluding non-Christian religious advisors and prohibiting condemned men of non-Christian faiths from requesting their religious advisors to accompany them in the execution chamber.

The suit contends that the execution policy violates the Free Exercise and Establishment Clauses as well as the Alabama Constitution's Religious Freedom Amendment.

Prior to 2019, prison rules required that the prison chaplain-- consistently a mainline Protestant clergyman-- be present in the execution chamber.  That practice was challenged and litigated up to the U.S. Supreme Court, which in 2019 allowed the Alabama execution of a Muslim inmate to proceed without reaching the merits of the challenge to that practice. (See prior posting.) Subsequently in 2019 the Supreme Court ruled against disparate treatment of non-Christian inmates facing execution in a Texas case. (See prior posting.) Courthouse News Service reports on the lawsuit.

2020 Report on Hate Groups Released

Earlier this week, the Southern Poverty Law Center released its report The Year In Hate and Extremism 2020. The Report identifies 838 active hate groups, an 11% drop from last year. As reported by CNA, some conservative Christian groups have criticized SPLC for labelling anti-abortion and anti-gay marriage organizations as anti-LGBTQ hate groups. [Thanks to Michael Lieberman for the lead.]

Supreme Court: FSIA Shields Germany From Suit Over Nazi Takings of German-Jewish Property

Yesterday in Federal Republic of Germany v. Philipp, (Sup. Ct., Feb. 3, 2021), the U.S Supreme Court held that the Foreign Sovereign Immunities Act (FSIA) precludes plaintiffs from filing suit in U.S. courts to recover for Jewish property taken by the Nazi government from German nationals.  Plaintiffs sued over the Nazi government's coercing a consortium of German Jewish art dealers to sell an art collection to Prussia at a one-third of its value. The FSIA provides that foreign countries, with certain exceptions, are immune from suit in U.S. courts.  Plaintiffs contended that the exception for cases  "in which rights in property taken in violation of international law are in issue" should apply because the coerced sale of their property was an act of genocide.

 A unanimous Supreme Court rejected plaintiffs' argument on two grounds. First it held that the exception for property taken in violation of international law does not include expropriation of property from a country's own nationals. Second it held that the exception for property taken in violation of international law does not apply to property taken in violation of international human rights law, saying in part: 

We need not decide whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. We do not look to the law of genocide to determine if we have jurisdiction over the heirs’ common law property claims. We look to the law of property.

The Court yesterday also remanded Republic of Hungary v. Simon, (Sup. Ct., Feb. 3, 2021), for further consideration in light of tis decision in Germany v. Philipp. That case is a class action claim for property taken by the Hungarian government from Hungarian Jews during the Holocaust.

SCOTUSblog discusses the decisions.