Recent Articles of Interest

From SSRN:

• David Grenardo, Marianist Law Schools: Demonstrating The Courage To Be Catholic, (60 J. Cath. Legal Stud. ___ (2022, Forthcoming)).
• Phil Lord, Religious Legitimacy, (2021) 90:2 UMKC Law Review __ (Forthcoming).
• Rafael Domingo Osle, John Paul II's Contribution to Law, (January 28, 2021).
• Stephen R. Munzer, Silence as a Christian Experience and Practice, 62 Studia Monastica 253 (2020).
• April Duff, Dying with Dignity: The Role of Dignity in the Irish Constitution and its Implications for the Prohibition of Assisted Suicide, (UCD Working Papers in Law, Criminology & Socio-Legal Studies Research Paper No. 8/2021).
• Jeffrey A. Redding, A Decade of Transgender Rights Developments in Pakistan (2009-2019), (Droit et Cultures (Forthcoming)).
• Jareb A. Gleckel & Sheryl Wulkan, Abortion and Telemedicine: Beyond COVID-19 and the Shadow Docket, (UC Davis Law Review Online (Forthcoming 2021)).
• Gregor Maucec, Law Development by the International Criminal Court as a Way to Enhance the Protection of Minorities - The Case for Intersectional Consideration of Mass Atrocities, (Forthcoming in Journal of International Dispute Settlement).
• John Enman-Beech, Drawing Contract and Polyamory Together,  (2021) 36 Canadian Journal of Law and Society (forthcoming).
• Eric M. Zolt, Cross-Border Philanthropy: A U.S. Perspective,  (UCLA School of Law, Law-Econ Research Paper No. 21-03 (2021).
• Kari Aanestad, Kerry Gibbons & Jon Pratt, Private Foundation Grants to DAFs: Attorney General Charitable Trust Oversight Calls for Disclosure of Use of Funds, (May 18, 2020).

Canadian Province's Limits On Worship Services Are Upheld

In Beaudoin v. British Columbia, (BC Sup. Ct., March 18, 2021), a British Columbia trial court upheld against religious freedom challenges the COVID-19 Gathering and Events orders of the Canadian province's Provincial Health Officer.  The court said in part:

I find that Dr. Henry carefully considered the significant impacts of the impugned G&E Orders on freedom of religion, consulting with the inter-faith community to discuss and understand the impact of restrictions on gatherings and events on their congregations and religious practices....

Her decision was made in the face of significant uncertainty and required highly specialized medical and scientific expertise. The respondents submit, and I agree, that this is the type of situation that calls for a considerable level of deference....

There is a reasonable basis to conclude that there were no other reasonable possibilities that would give effect to the s. 2 Charter protections more fully, in light of the objectives of protecting health, and in light of the uncertainty presented by the Virus.

Although the impacts of the G&E Orders on the religious petitioners’ rights are significant, the benefits to the objectives of the orders are even more so. In my view, the orders represent a reasonable and proportionate balance.

Thus, the respondents have proven that the limits the G&E Orders place on the religious petitioners’ s. 2 Charter rights are justified under s. 1 of the Charter.

Cold Lake Sun editorializes on the decision.

9th Circuit Hears Oral Arguments In The Satanic Temple's Suit On Invocations

On Thursday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full arguments) in The Satanic Temple v. City of Scottsdale. In the case, an Arizona federal district court held that the Satanic Temple had failed to prove that the denial of their request to deliver an invocation at a City Council meeting was because of their religious beliefs. The district court concluded rather that the decision was based on a policy that only allowed organizations with substantial ties to the city to deliver invocations. (See prior posting.) Law& Crime reports on the oral arguments. [Thanks to Scott Mange for the lead.]

7th Circuit Enjoins Indiana's Parent Abortion Notification Statute

In Planned Parenthood of Indiana and Kentucky, Inc. v. Box, (7th Cir., March 12, 2021), in a case on remand from the U.S. Supreme Court, the U.S. 7th Circuit Court of Appeals in a 2-1 decision struggled with the meaning of the Supreme Court's recent fragmented opinion on abortion rights-- June Medical Services LLC v. Russo.  At issue is an Indiana statute which requires a minor's parents to be notified that their daughter is seeking to use the judicial bypass route to obtain an abortion.  The only exception, regardless of the minor's maturity, is a judicial finding that parental notice is not in the  minor's best interest. The court spent much of its opinion attempting to apply the test in Marks v. United States for how to make sense of a fragmented Supreme Court decision with no single majority opinion.  Affirming the district court's grant of a preliminary injunction against enforcement of the statute, the court said in part:

In June Medical, there is one critical sliver of common ground between the plurality and the concurrence: Whole Woman’s Health was entitled to stare decisis effect on essentially identical facts..... The Marks rule therefore applies to that common ground, but it applies only to that common ground. That application offers no direct guidance for applying the undue burden standard more generally, let alone to the quite different parental notice requirement in this case. That absence of guidance answers our question: the Marks rule tells us that June Medical did not overrule Whole Woman’s Health. That means Whole Woman’s Health remains precedent binding on lower courts.

Judge Kanne filed a dissenting opinion saying in part:

The plurality in June Medical held that the Louisiana law at issue was unconstitutional because it “poses a ‘substantial obstacle’ to women seeking an abortion [and] offers no significant health-related benefits.”... The Chief Justice’s concurrence, however, simply held only that the Louisiana law was unconstitutional because, under Whole Woman’s Health, it “imposed a substantial obstacle.” ...

Thus, the finding of a “substantial obstacle” is the common denominator between the opinions—and we should correct our previous decision by abandoning the added weighing of benefits that Chief Justice Roberts explicitly rejected.

Reporting on the decision, ABA Journal points out:

The decision puts the 7th Circuit at odds with the ... 8th Circuit at St. Louis and the 6th Circuit at Cincinnati.

[Thanks to Tom Rutledge for the lead.]

8th Circuit: Street Preacher Did Not Show Entitlement To Preliminary Injunction

In Sessler v. City of Davenport, (8th Cir., March 18, 2021), the U.S. 8th Circuit Court of Appeals affirmed the denial of a preliminary injunction to a street preacher who in 2018 had been required by police to leave the Street Fest area in Davenport. He was limited to preaching across the street from one of the festival entrances. Plaintiff sought a preliminary injunction to bar enforcement of the city's Special Events Policy against him through December 2022. The court held:

Although Sessler possesses a First Amendment right to communicate his messages in a public forum, he does not have the wholesale right to disrupt an event covered by a permit....

Even if we assume for purposes of this appeal, without deciding, that Sessler has shown a likelihood of success on the merits, we find Sessler’s inability to demonstrate a threat of irreparable harm heavily weighs against granting preliminary injunctive relief....

The facts as alleged by Sessler show that he was allowed to continue preaching in the City’s public sidewalks and streets, just not those demarcated and secured for use by Street Fest in July 2018. And, although Sessler’s Complaint is based on his removal from a festival governed by the City’s Policy, Sessler does not provide any concrete plans to share his messages at future festivals in the City.

New York's Repeal Of Religious Exemption From Vaccination Requirement Is Upheld

In F.F. v. State of New York, (App. Div., March 18, 2021), a New York state appellate court rejected parents' constitutional challenges to New York's repeal of the religious exemption from mandatory vaccination for school children. The court upheld the repeal, finding that it was a neutral law of general applicability prompted by the measles outbreak, even though the repeal eliminated a religious exemption. The court said in part:

[W]e do not find that the timing of the repeal reveals political or ideological motivation; rather, the record reflects that the repeal simply worked its way through the basic legislative process and was motivated by a prescient public health concern....

[W]e reject plaintiffs' claims that, based upon statements by some of the legislators, the repeal was motivated by religious animus. Significantly, the 11 statements alleged to suggest religious hostility were attributed to only five of the over 200 legislators in office at any given time.... More importantly, many of the statements do not demonstrate religious animus, as plaintiffs suggest, but instead display a concern that there were individuals who abused the religious exemption to evade the vaccination requirement based upon non-religious beliefs.... The repeal relieves public school officials from the challenge of distinguishing sincere expressions of religious beliefs from those that may be fabricated.

9th Circuit: Football Coach's Past-Game Prayers Violate Establishment Clause

In Kennedy v. Bremerton School District, (9th Cir., March 18, 2021), the U.S. 9th Circuit Court of Appeals upheld a Washington state school board's dismissal of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. The long-running high-profile case was before the 9th Circuit for the second time. (See prior posting.) The court issued a Summary of its decision along with the opinion, saying in part:

The panel held that the record before it and binding Supreme Court precedent compelled the conclusion that the District would have violated the Establishment Clause by allowing Kennedy to engage in the religious activity he sought. Kennedy’s attempts to draw nationwide attention to his challenge to the District showed that he was not engaging in private prayer. Instead, he was engaging in public speech of an overtly religious nature while performing his job duties. The District tried to accommodate Kennedy, but that was spurned by Kennedy insisting that he be allowed to pray immediately after the conclusion of each game, potentially surrounded by students. The panel held that the district court correctly granted summary judgment to the District on Kennedy’s free speech and free exercise claims.

The panel held that Kennedy’s Title VII claims alleging failure to rehire, disparate treatment, failure to accommodate and retaliation also failed.

Judge Christen also issued a concurring opinion, joined by Judge Nelson. Friendly Atheist blog has more on the decision. [Thanks to Mel Kaufman for the lead.]

Court Rejects Claims of Discrimination Against Yemeni Family Members Of US Citizens

In Almakalani v. McAleenan, (ED NY, March 16, 2021), a New York federal district court rejected a number of challenges to alleged unreasonable delays by the federal government in adjudicating whether 86 family members of petitioners could lawfully immigrate from Yemen as family members of U.S. citizens. Special procedures were promulgated in 2012 for Yemeni family members because of the unreliability of documentation from Yemen. Plaintiffs alleged that the special procedures "are the result of a conspiracy between the Defendants—all members of former President Donald J. Trump’s administration, including former President Trump himself—to halt Yemeni Muslim immigration to the United States."  The court said in part:

Plaintiffs’ only specific factual allegations of animus or intentional discrimination evoke Islamophobic rhetoric in statements and actions attributable to former President Trump and his administration.... Those statements and actions do not specifically relate to the Yemen Guidance or the adjudication of Form I-130 petitions. Moreover, USCIS issued and implemented the Yemen Guidance in 2012, during the administration of former President Barack Obama and prior to any of the statements and actions that allegedly support Plaintiffs’ claims of discriminatory animus....

Plaintiffs claim that Defendants have violated the Establishment Clause of the First Amendment by subjecting Form I-130 petitions brought by and on behalf of Muslim individuals to higher burdens of proof than those petitions brought by or on behalf of non-Muslims....

To the extent that Form I-130 petitions on behalf of Yemeni beneficiaries are adjudicated differently than petitions on behalf of beneficiaries from other countries, Defendants have articulated a logical justification grounded in the unreliability of Yemen’s official processes for maintaining and issuing civil records. That justification is unrelated to matters of religious faith or affiliation, and it provides a rational explanation for the challenged policies and practices. Accordingly, Plaintiffs fail to state a claim under the Establishment Clause of the First Amendment.

USCIRF Reports On 10 Countries That Use Sharia To Justify Death Penalty For Same-Sex Relationships

This week, the U.S. Commission on International Religious Freedom issued a Fact Sheet on The Use of Shari’a as Religious Justification for Capital Punishment Against LGBTI Persons. It states in part:

There are 10 countries where consensual same-sex relationships are formally punishable by death, all of which justify denial of rights and personhood on official interpretations of Shari’a.

It lists those countries as: Iran, Saudi Arabia, Yemen, Nigeria, Somalia, Mauritania, United Arab Emirates, Qatar, Pakistan, Afghanistan.

Injunction Governing Competing Factions' Access To Church Building Upheld

In Yakob v. Kidist Mariam Ethiopian Orthodox Tewahedo Church, Inc., (GA App., March 16, 2021), a Georgia state appeals court, in a dispute between the church's administrative board and its former priest Abba Yakov (who also served as Archbishop over several churches), reversed the trial court's grant of an interlocutory injunction to compel attendance of board members at board meetings. It held that the interlocutory injunction altered the status quo.  However the court affirmed the trial court's interlocutory injunction that gave access to the two factions to conduct services at different times. The challenged portion of that injunction dealt with Yakob's role during the times that the opposing faction had access. It provided:

Defendant Yakob may attend the Church’s services as a parishioner, but he is prohibited from presiding over, controlling, or attempting to preside over or control the Church’s services in any way. Defendant Yakob may enjoy the Church’s services from the pew, but he may not enter areas of the Church’s sanctuary for which access to parishioners is prohibited and may not participate in those services in any role other than as a parishioner.

The court concluded: 

[T]he complaint addresses itself to matters outside of First Amendment jurisprudence, such as issues of Church property and board governance issues. Given the Church’s hybrid form of governance ..., those property and governance issues are capable of resolution by reference to neutral principles of law. Importantly, nothing in the April 2017 injunction relates to the propriety or validity of Yakob’s termination as priest, or his role as Archbishop.

Church's Appeal of Bank's Interpleader Is Dismissed

United Community Bank v. Wakefield Missionary Baptist Church,  (NC App., March 16, 2021), involves a dispute over who is entitled to bank accounts of Wakefield Missionary Baptist Church on deposit at United Community Bank. The Bank filed an interpleader action. The church trustees sought dismissal on the ground that the dispute was an ecclesiastical matter requiring determination of who is a church member, and their roles and authority. As recounted by the appeals court:

The trial court granted the Bank’s motion for interpleader and discharge, ordering the Bank to relinquish all of the disputed funds to the Clerk of Superior Court to be held until further orders. The Bank complied.

The court dismissed the appeal as interlocutory, saying in part:

The interlocutory order granting interpleader does not impair the Trustee Defendants’ ... rights because the issue of who has control over the Church’s assets with the Bank is the very thing yet to be decided at the trial court.... The proceeding does not interfere with the Trustee Defendants’ substantial right to be free from ecclesiastical entanglement because the trial court can resolve the controversy based on neutral principles of law.

Litigation Between Indian Tribes Over Burial Sites Dismissed On Sovereign Immunity Grounds

In Muscogee (Creek) Nation v. Poarch Band of Creek Indians, (MD AL, March 15, 2021), the Creek Nation-- an Indian tribe that was forced into Oklahoma in the 1830's from its original location in Alabama-- sued the Poarch Band of Creek Indians (PBCI) as well as federal officials over a casino and hotel which PCBI built on land in Alabama that contained ceremonial grounds and burial sites that once belonged to the Creek Nation. The court held that the claims against PCBI and its officials are barred because of sovereign immunity. Because the tribe or its officials are an indispensable party to the litigation, the other defendants were also dismissed. The court added:

A narrower suit seeking more limited relief--such as the return of the bodies and funerary objects buried at Hickory Ground to the descendants of the deceased--may not trigger the same sovereign interests that preclude this litigation from proceeding, particularly if such a suit were directed at specific tribal officials responsible for PBCI’s ongoing control of those bodies and artifacts.

Consent Decree Orders End To Village's Zoning Rules That Discriminate Against Orthodox Jewish Residents

Yesterday a New York federal district court in United States v. Village of Airmont, (SD NY, March 15, 2021), entered a consent decree requiring modification of the village's zoning code. A press release by the Department of Justice describes the order:

[The preliminary injunction mandates] that the Village... immediately cease enforcement of zoning code provisions enacted in 2018 that discriminate against Orthodox Jewish residents in violation of the Religious Land Use and Institutionalized Persons Act....  [T]he zoning code provisions at issue limit the amount of space in private homes that can be used as a Residential Place of Worship..., restrict whom residents are allowed to invite into their own homes to pray, and expand the use of an arbitrary, drawn-out application process designed to delay and effectively deny permits for even minor alterations to private houses.... [T]he Government presented evidence that the provisions had been motivated by discriminatory animus and served no legitimate governmental purpose....

3rd Circuit: State Legislators Have Immunity In Suit By Islamic Group Over Blocking Its Land Purchase

In HIRA Educational Services North America v. Augustine, (3d Cir., March 15, 2021), a consulting agency for Islamic educational groups sued, among others, three Pennsylvania state legislators for actions that prevented the agency from purchasing state land to use for a youth intervention center and Islamic boarding school. Plaintiffs claim that the legislators' actions were discriminatory and violated RLUIPA and the Pennsylvania Religious Freedom Protection Act. The legislators claimed absolute and qualified immunity as a defense.

Plaintiffs pointed to the following actions by defendants:

(1) introducing a resolution to divest [the Pennsylvania Department of General Services] of its authority to sell the property; (2) co-authoring a letter to Governor Wolf describing their concerns...; (4) making public statements against the sale....; (6) meeting with the Secretary of DGS to try to persuade him to halt the sale....

The court held that absolute legislative immunity extends to acts that are "quintessentially legislative" or are integral steps in the legislative process, such as offering resolutions, voting, conducting legislative investigations and writing committee reports, and concluded:

Vogel’s introduction of Senate Resolution 154 and Sainato and Bernstine’s presentation of it to the House were quintessentially legislative activities.... Absolute legislative immunity also applies to the Legislators’ letter to Governor Wolf and Bernstine’s calls to HIRA because both are examples of protected legislative factfinding....

In addition ..., HIRA claimed the Legislators made disparaging public comments about HIRA, met with the DGS Secretary in an attempt to get DGS to cancel the sale to HIRA, and gave preferential treatment to the subsequent purchaser of the property. These are most accurately described as political “errands” or “speeches delivered outside [of] Congress,” so the Legislators are not entitled to absolute immunity for those activities.... 

[However] qualified immunity shields officials from civil liability “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” 

HIRA’s claims against Vogel and Sainato fail because HIRA has not pointed to any precedential case prohibiting legislators from speaking against the sale of state-owned property or from extending preferential treatment to certain recipients of government contracts.

Scottish Parliament Passes Hate Crime Bill

According to BBC News, the Scottish Parliament last week passed the Hate Crime and Public Order (Scotland) Bill (full text). Among other things, the new law (§3(2)) outlaws threatening or abusive behavior or communications made with the intent to stir up hatred against a group based on its religion or perceived religious affiliation, or based on the group's sexual orientation or transgender identity. It goes on to provide (§9A), however,:

... [B]ehaviour or material is not to be taken to be threatening or abusive solely on the basis that it involves or includes—

(a) discussion or criticism of matters relating to—(i) age, (ii) disability, (iii) sexual orientation, (iv) transgender identity,(v) variations in sex characteristics,

(b) discussion or criticism relating to, or expressions of antipathy, dislike, ridicule or insult towards— (i) religion, whether religions generally or a particular religion, (ii) religious beliefs or practices, whether religious beliefs or practices generally or a particular religious belief or practice, (iii) the position of not holding religious beliefs, whether religious beliefs generally or a particular religious belief,

(c) proselytising, or

(d) urging of persons to cease practising their religion.

The bill (§16) also abolishes the common law offense of blasphemy.

Recent Articles of Interest

From SSRN:

• Cecile Laborde, On the Parity between Secular and Religious Reasons, Social theory and Practice (2021).
• Adam Swift, Parents’ Rights, Children’s Religion: A Familial Relationship Goods Approach, (Journal of Practical Ethics, Vol. 8 No. 2, Dec 2020).
• Doug Magendanz, How Norms Interact: On Normative Plasticity, (March 6, 2021).
• Blaine Hutchison, Raymond J Lajeunesse, Jr., Bruce Cameron & Frank D. Garrison, Comments on EEOC Proposed Updates to Compliance Manual on Religious Discrimination,  (December 17, 2020).
• Alexander Lindvall, Forgive Me, Your Honor, For I Have Sinned: Limiting the Ecclesiastical Abstention Doctrine to Allow Suits for Defamation and Negligent Employment Practices, (South Carolina Law Review, Vol. 72, No. 1, 2020).
• Deborah Cantrell, Transformative Silence and Protest, (Rutgers Journal of Law & Religion, Forthcoming).
• Katie R. Eyer, The But-For Theory of Anti-Discrimination Law, (Virginia Law Review, Forthcoming).
• Amanda Harmon Cooley, The Powerful Problem of Prayer at Public School Board Meetings, (March 7, 2021).
• Reva B. Siegel, Why Restrict Abortion? Expanding the Frame on June Medical, (2020 Sup. Ct. Rev. (Forthcoming).
• Robert G. Schwemm, Fair Housing and the Causation Standard After Comcast, (Villanova Law Review, Vol. 66, No. No. 1, 2021).
• Shuai Chen & Jan van Ours, Mental Health Effects of Same-Sex Marriage Legalization, (Tinbergen Institute Discussion Paper 2021-003/V (2021)).

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

• Dimitry Gegenava, Legal and Social Status of the Georgian Orthodox Church: Challenges and Perspectives, (Teka Komisji Prawniczej PAN Oddział w Lublinie, t. XIII, 2020, nr 2).
• Cochav Elkayam-Levy, Re-Imagining the Rules – the Global Transition to Transformative Equality and the Narratives of Feminist Religious Movements, (December 31, 2020).
• Vincenzo Pacillo, The Role of Mario Piacentini and Mario Falco in the Drafting of the Italian Fascist Laws on Religious Minorities and Jewish Communities, Highlighting the Danger of Nationalism for the Freedom of Religion or Belief, (October 27, 2020).
• Warto Ahmad Saifuddin, Zainal Arif, Efri Syamsul Bahr & Zulfitria, Opportunities and Challenges of Halal Product Business Pasca COVID-19 in Indonesia, (November 10, 2020).
• Muhammad Sher Abbas, Honour Killings In Pakistan And Status Of Women In Islamic Law, (January 5, 2021).
• Faisal Kutty, In Search of the Elusive Middle Ground Between Blasphemy and Free Speech: From Defamation of Religion to Incitement to Hate, (August 5, 2020).

New Pressure On Baha'is In Iran Revealed

In a March 9 press release, the International Federation for Human Rights reported on a recently discovered set of minutes (full text in English translation) of a September 2020 meeting in the city of Sari, Iran of the Commission on Ethnicities, Sects and Religions. The minutes reflect decisions to increase pressure on Baha'is in the city.  A resolution adopted at the meeting provides in part:

To control the misguided movements of the subversive Baha’i sect, it was decided:

A- The intelligence, security and law enforcement community should conduct strict controls at the county level by monitoring their operations, the type of services provided to the networks and websites of enemies, private and public meetings, and their other activities....

B- Departments of Education in Districts 1 and 2 of Sari shall increase the level of alertness and awareness among school principals and educators on their handling of Baha’i students in order to win them to Islam.

Swiss Airline Settles Suit By Female Passenger Pressured To Move Seats

As reported this week by Live and Let's Fly, the Swiss airline easyJet has settled a lawsuit brought against it in an Israeli court by a woman passenger who, on a Tel Aviv to London flight, was pressured into moving her seat because a Haredi Jewish passenger refused for religious reasons to sit next to a woman. The airline said that pressuring the woman to move is inconsistent with it policies. [Thanks to Tom Rutledge for the lead.]

Texas Human Rights Act Bars LGBT Discrimination

In Tarrant County College District v. Sims, (TX App., March 10, 2021), a Texas state appellate court, in a 2-1 decision, held that the Texas Commission on Human Rights Act (TCHRA) should be read to prohibit discrimination on the basis of sexual orientation or gender identity. In the case, plaintiff, a community college employee, claimed that the college discriminated against her because she is a lesbian. The majority said in part:

In order to reconcile and conform the TCHRA with federal antidiscrimination and retaliation laws under Title VII, we conclude we must follow Bostock and read the TCHRA’s prohibition on discrimination “because of . . . sex” as prohibiting discrimination based on an individual’s status as a homosexual or transgender person. See Bostock, 140 S. Ct. at 1738–43; Chatha, 381 S.W.3d at 504–05.

The majority also refused to dismiss plaintiff's claims under the Texas constitution. 

Justice Schenck filed an opinion dissenting in part, contending that Bostock does not control the interpretation of the state anti-discrimination statute. Human Rights Campaign issued a press release on the decision.

British Court Upholds Convictions of Stonehenge Protesters

In Halcrow v. Crown Prosecution Service, (EWHC, March 10, 2021), the England and Wales High Court held that the religious freedom rights of pagan and Druid protesters at Stonehenge were not infringed when they were convicted of violating restrictions on entry to the stone circle in violation of provisions of the Ancient Monuments and Archaeological Areas Act 1979 and the Stonehenge Regulations. The court said in part:

[T]he removal of restrictions on access to the stone circle because the appellants turned up and wanted access to the stone circle to protest and exercise religious freedoms, would not strike a fair balance between the important rights of the individual appellants and the general interest of the community to see Stonehenge preserved for present and future generations. This is because it would have meant in practice that access to the stone circle would have had to be lifted as and when any person chose to walk into the stone circle, so long as they were protesting or exercising religious rights. Such access would inevitably have an adverse effect on Stonehenge to the detriment of current and future generations. Therefore the interference on the specific occasions with the appellants' rights under articles 9, 10 and 11 of the ECHR [European Convention on Human Rights] was justifiable and proportionate.

Law & Religion UK has more on the decision.

Mississippi Bans Transgender Women From Girls' and Women's Sports Teams

Yesterday Mississippi Governor Tate Reeves signed Senate Bill 2536 (full text) which prohibits women's or girl's athletic teams being open to transgender women.  The ban applies to any interscholastic or intramural athletic teams or sports that are sponsored by a public primary or secondary school or any school that is a member of the Mississippi High School Activities Association or public institution of higher education or any higher education institution that is a member of the NCAA, NAIA or NJCCA. According to an AP report, in the signing ceremony for the bill, Gov. Tate said in part:

But for the fact that President Biden as one of his first initiatives sat down and signed an executive order — which, in my opinion, encourages transgenderism amongst our young people — but for that fact, we wouldn't be here today.

Communications Decency Act Allows Video Hosting Site To Ban Conversion Therapy Promoter

In Domen v. Vimeo, Inc., (2d Cir., March 11, 2021), the U.S. 2nd Circuit Court of Appeals held that Section 230 of the federal  Communications Decency Act immunizes the video sharing platform Vimeo from a lawsuit alleging religious and sexual orientation discrimination under California law. The suit was filed by Church United and its founder after Vimeo deleted their account because plaintiffs had uploaded videos that promote sexual orientation change therapy. The court said in part:

A broad provision [in Section 230], subsection (c)(2) immunizes interactive computer service providers from liability for “any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.” 12 U.S.C § 230(c)(2). Notably, the provision explicitly provides protection for restricting access to content that providers “consider[] . . . objectionable,” ... granting significant subjective discretion.... Therefore, Vimeo is statutorily entitled to consider SOCE content objectionable and may restrict access to that content as it sees fit.

Bloomberg Equality reports on the decision.

California COVID Restrictions On Singing At Worship Services Upheld

In Calvary Chapel of Ukiahv. Newsom, (ED CA, March 10, 2021), a California federal district court refused to issue a preliminary injunction against California's COVID-19 restriction on indoor singing and chanting during worship services. The court rejected plaintiffs' free exercise, free speech, equal protection and Establishment Clause claims. The court said in part:

[T]he State has now issued protocols allowing those who serve as performers during church services, presumably including choir members or soloists, to sing indoors subject to masking and distancing. Under these newest rules, the State argues, “worship services are treated more favorably than the entertainment industry.” ... To the extent one might question whether churches were being treated equivalently to the entertainment industry, that doubt appears to have been eliminated beyond a shadow of a doubt.

Justice Department Announces Settlement of RLUIPA Suit Against New Jersey Town

The Department of Justice announced yesterday that it has filed a proposed consent decree reflecting an agreement with the Township of Toms River, New Jersey. If approved by the court the decree will settle a RLUIPA lawsuit that was filed against the Township:

The complaint alleges that since 2009, Toms River has enacted a series of revisions to its zoning code—including a ten-acre parcel minimum requirement—which greatly reduced both the number of zoning districts in which houses of worship can locate and the number of sites available for houses of worship. These restrictions have had a particular impact on the Township’s Orthodox Jewish population, who, because of their faith and religious traditions, tend to worship at small houses of worship which they walk to and from on the Sabbath and holidays.....

As part of the consent decree, the Township will revise its zoning code to: reduce the minimum acreage required for a house of worship ... to two acres; allow houses of worship as-of-right in certain zoning districts; allow smaller houses of worship to be located on minor collector roads; and treat houses of worship on comparable terms to nonreligious places of assembly....

Malaysian Court Says Christian Publications Can Use the Word "Allah"

Bernama reports that in Malaysia, the Kuala Lumpur High Court has ruled that Christians may use the word "Allah" and three other Arabic words in their religious publications for educational purposes. The court held that a 1986 Home Ministry ban on use of the words was unconstitutional. Publications using the terms must also carry a disclaimer saying that the publication is only for Christians, and must also carry a symbol of a Cross. Litigation on the issue began in 2008. (See prior related posting.)

UPDATE: Daily Express (March 15) reports that the government has filed an appeal in the case.

Think Tank Issues New Report On Uyghur Genocide

Newlines Institute for Policy and Strategy, a D.C. think tank, this week issued a 55-page report (full text) titled The Uyghur Genocide: An Examination of China’s Breaches of the 1948 Genocide Convention. According to the Report's Introduction:

This report concludes that the People’s Republic of China ... is committing an ongoing genocide against the Uyghur ethnic group, in violation of the Convention on the Prevention and Punishment of the Crime of Genocide.... The report examines key pertinent developments in the Xinjiang Uyghur Autonomous Region ... from May 2013, when the XUAR Government released the earliest known document laying the groundwork for the mass internment campaign, to the present. These events follow a long history of persecution against the Uyghurs in China. The report specifically considers the question of State responsibility under international law for breaches of the Genocide Convention, not the individual criminal liability of particular leaders or perpetrators.

Arkansas Enacts Law Banning Virtually All Abortions, Seeking Vehicle For Overturning Roe v. Wade

On Tuesday, Arkansas Governor Asa Hutchinson signed into law SB6, the Arkansas Unborn Child Protection Act (full text). The new law bans all abortions, except to save the life of a pregnant woman in a medical emergency.  A doctor who violates the law is subject to a fine of up to $100,000 and up to ten years in prison. Gov. Hutchinson's signing statement said in part:

I will sign SB6 because of overwhelming legislative support and my sincere and long-held pro-life convictions. SB6 is in contradiction of binding precedents of the U.S. Supreme Court, but it is the intent of the legislation to set the stage for the Supreme Court overturning current case law. I would have preferred the legislation to include the exceptions for rape and incest, which has been my consistent view, and such exceptions would increase the chances for a review by the U.S. Supreme Court.

[Thanks to Scott Mange for the lead.]

Court In India Dismisses Charge That Facebook Post Violated Blasphemy Law

In India, the High Court of the State of Tripura dismissed a complaint filed against petitioner claiming that he violated Section 295A of the Indian Penal Code through a Facebook post. That section prohibits deliberate and malicious acts intended to outrage religious feelings by insulting religion or religious beliefs. In Gosh v. State of Tripura,  (High Ct. Tripura, Feb. 26, 2021), the court concluded that Section 295A was not violated by the post that was in Bengali script, and whose meaning was unclear. The court said in part: 

According to the complainant, by putting such an un-tasteful and obscene comment on Hindu religion by saying that Gita, the sacred religious text is “thakbaji Gita”, the petitioner has hurt the religious feelings of Hindu community....

As I have noted earlier, there is a dispute about what exactly did the petitioner convey through the said post.... The word ‘ঠক’ is explained as deceitful, swindling and knavish. When suffix „বাজজ‟ is added, it conveys the meaning of cheating, swindling or knavery whereas the term ‘ভাজা’ is explained as to fry or roast. What the petitioner has written on his Facebook post is „ঠগভাজী’. Whatever this term coined by the petitioner may mean or may not mean anything at all, it certainly does not convey the meaning which the complainant wants to ascribe namely that Bhagavad Gita, is a deceitful document.

Swaddle reports on the decision.

Satanic Temple Member Sues Over Texas Abortion Requirements

The Satanic Temple and one of its members filed suit last month in a Texas federal district court challenging Texas' requirement that a woman have a sonogram prior to an abortion.  The complaint (full text) in The Satanic Temple, Inc. v. Texas Department of State Health Services, (SD TX, filed 2/12/2021), alleges that the individual plaintiff wishes to engage in The Satanic Temple's Abortion Ritual, explaining:

46. TST developed the Satanic Abortion Ritual to help its membership cast off guilt, shame, and mental discomfort that the member may be experiencing in connection with their election to abort the pregnancy....

47. The Ritual also confirms the member’s choice and wards off effects of unjust persecution....

48. Here, the unjust persecution is an improper effort of the State (the “outside world”) to infringe on the decision-making of a member about her own health decision (the “inside world.”)...

102. Texas places barriers between Ms. Doe (and TST’s similarly situated members) and this religious speech and conduct by first requiring she undergo a medically unnecessary operation, requiring she reject the “opportunity” to see the results of the imaging, requiring she listen to the narrative of and results of the imaging, and requiring she wait.

Plaintiffs claim that the regulations violate their free exercise, substantive due process and equal protection rights. Christian Headlines reports on the lawsuit.

Executive Order Calls For Review To Assure No Discrimination In Education On Basis of Sex, Sexual Orientation or Gender Identity

Yesterday President Biden issued an Executive Order on Guaranteeing an Educational Environment Free from Discrimination on the Basis of Sex, Including Sexual Orientation or Gender Identity (full text). It calls for a review of existing federal regulations and guidance documents to assure "an educational environment free from discrimination on the basis of sex, including discrimination in the form of sexual harassment, which encompasses sexual violence, and including discrimination on the basis of sexual orientation or gender identity. "

President Biden Praises Papal Visit To Iraq

Yesterday, President Biden issued a Statement (full text) on Pope Francis' just-completed visit to Iraq, saying in part:

I congratulate the Government and people of Iraq for the care and planning that went into organizing this monumental visit, and continue to admire Pope Francis for his commitment to promoting religious tolerance, the common bonds of our humanity, and interfaith understanding.

Colorado Bakery, In Court Again, Loses Attempt to Dismiss Transgender Discrimination Claim

 In Scardina v. Masterpiece Cakeshop, Inc.,(CO Dist. Ct., March 4, 2021), a Colorado state trial court dismissed Colorado Consumer Protection Act claims against a bakery that has been the subject of extensive litigation over its refusal to design wedding cakes for same-sex weddings. In the current case, plaintiffs claimed that the bakery engaged in misleading advertising indicating that they would sell birthday cakes to LGBT individuals. The court dismissed the claim because "the most salient materials Plaintiff allegedly relied on are not advertisements," but were news articles and op-eds. However the court refused to dismiss plaintiff's Colorado Anti-Discrimination Act claim that she was discriminated against because of her transgender status when plaintiff refused to make a blue and pink cake celebrating her gender transition. The court said in part:

Whether making Plaintiff’s requested cake is inherently expressive, and thus protected speech, depends on whether Defendants would thereby convey their own particularized message, and whether the likelihood is great that a reasonable observer would both understand the message and attribute that message to Defendants.... The Court cannot conclude, based on the current record, that the act of making a pink cake with blue frosting, at Plaintiff’s request, would convey a celebratory message about gender transitions likely to be understood by reasonable observers. Further, to the extent the public infers such a message, that message is far more likely to be attributed to Plaintiff, who requested the cake’s simple design. Therefore, if Defendants violated CADA here, they have not shown that their freedom of speech would be violated by holding them liable.

7th Circuit Denies Preliminary Injunction Against Prior Illinois Limits On Worship Services

In Cassell v. Snyders, (7th Cir., March 8, 2021), the U.S. 7th Circuit Court of Appeals refused to issue a preliminary injunction against a now-superseded Illinois COVID-19 order that prohibited public gatherings of more than ten people, including religious services. The court said in part:

Intervening authority from the Supreme Court offers plaintiffs a greater prospect for success on the merits of their First Amendment claim than either the district court or we had expected. See Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020). Yet recent Supreme Court authority has also indicated that equitable considerations weigh against granting a preliminary injunction at this time, when the prospect of irreparable injury to the plaintiffs is very low....

Even if the plaintiffs now appear more likely to succeed on the merits of their free exercise claim, there simply is no compelling need for preliminary relief against these long-expired orders, and there is every reason to expect that even if Illinois in the future believes some binding restrictions on worship services are needed, it will act with a close eye on the Supreme Court’s latest pronouncements on the subject, including the need for measures closely tailored to meet public health needs.

[Thanks to Jeff Pasek for the lead.]

In Campus Religious Speech Case, Supreme Court Says Nominal Damage Claim Can Support Standing

The U.S. Supreme Court today decided Uzuegbunam v. Preczewski, (Sup. Ct., March 8, 2021), potentially opening the courts to a larger number of civil rights complaints.  The case involves a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature and proselytizing on campus. Subsequently, the school changed its policies, but that did not moot the students' claim for nominal damages. At issue in the case as it reached the Supreme Court is whether a claim for nominal damages satisfies the requirement that for standing a plaintiff must show, among other things, that the remedy will redress the constitutional violation alleged. In an 8-1 decision, through an opinion written by Justice Thomas, the Court said in part:

Because nominal damages were available at common law in analogous circumstances, we conclude that a request for nominal damages satisfies the redressability element of standing where a plaintiff’s claim is based on a completed violation of a legal right.

The dissent worries that after today the Judiciary will be required to weigh in on legal questions “whenever a plaintiff asks for a dollar.” ... But petitioners still would have satisfied redressability if instead of one dollar in nominal damages they sought one dollar in compensation for a wasted bus fare to travel to the free speech zone....

This is not to say that a request for nominal damages guarantees entry to court. Our holding concerns only redressability. It remains for the plaintiff to establish the other elements of standing (such as a particularized injury)....

Justice Kavanaugh filed a concurring opinion. 

Chief Justice Roberts dissented, saying in part:

Today’s decision risks a major expansion of the judicial role. Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the Judiciary will be required to perform this function whenever a plaintiff asks for a dollar. For those who want to know if their rights have been violated, the least dangerous branch will become the least expensive source of legal advice....

The best that can be said for the Court’s sweeping exception to the case-or-controversy requirement is that it may itself admit of a sweeping exception: Where a plaintiff asks only for a dollar, the defendant should be able to end the case by giving him a dollar, without the court needing to pass on the merits of the plaintiff ’s claims.

ABC News reports on the decision.

Swiss Voters Approve Burka Ban

SwissInfo reports that voters in Switzerland yesterday approved, by a narrow majority, a constitutional amendment that would ban wearing of the burka in public places:

A decade after another national vote that banned the building of minarets, Switzerland will introduce a clause in its constitution to outlaw face coverings, including the Islamic burka and niqab, in public spaces....

Exceptions to the law will include face coverings for reasons of security, climate, or health – which means protective masks worn against Covid-19 are acceptable. Niqabs and burkas will still be allowed in places of worship.

Final results on Sunday showed just six of the country’s 26 cantons rejecting the initiative, which was launched by the right-wing Egerkinger committee – the same group who were behind the minaret vote in 2009.

Turnout was just over 50%, a little above average.

8th Circuit Upholds Missouri Immunization Opt-Out Form

In B.W.C. v. Williams, (8th Cir., March 5, 2021), the U.S. 8th Circuit Court of Appeals rejected free speech, free exercise, equal protection and hybrid rights challenges by parents and their children to the form they must file in Missouri to obtain a religious exemption from vaccination requirements. The form, which the parent must sign, contains a paragraph urging parents to immunize their child. The court said in part:

Form 11 states the government’s position, separated from the religious opt-out. Unlike a student required to recite the Pledge or a motorist required to display the state’s motto, there is no confusion here: it is the government’s message to parents considering Form 11....

Form 11 does not require the plaintiffs to engage in conduct against their religious beliefs. Plaintiffs object to the process of producing vaccines or introducing vaccines into their children’s bodies.... [S]ubmission of Form 11 does not increase the number of vaccines produced or force their children to get immunized....

Form 11 does not target religious believers or violate their right to equal protection. The defendants do not treat the plaintiffs differently than any other parent requesting an exemption from immunization: they were all required to submit a DHSS form to their school.

Courthouse News Service reports on the decision.

Massachusetts Supreme Court Says Social Work Prof Not Covered By The Ministerial Exception

In DeWeese-Boyd v. Gordon College, (MA Sup. Ct., March 5, 2021), the Massachusetts Supreme Judicial Court held that the ministerial exception does not apply in a suit by an associate professor of social work at a private Christian liberal arts college who claims her promotion to full professor was denied because of her vocal opposition to the school's policies on LGBTQ individuals. In allowing plaintiff to move ahead with her discrimination, retaliation and breach of contract claims, the court said in part:

We conclude that Gordon College (Gordon) is a religious institution, but that the plaintiff, Margaret DeWeese-Boyd, is not a ministerial employee..... [S]he did not teach religion or religious texts, lead her students in prayer, take students to chapel services or other religious services, deliver sermons at chapel services, or select liturgy, all of which have been important ... factors in the Supreme Court's functional analysis. The most difficult issue for us is how to evaluate her responsibility to integrate her Christian faith into her teaching and scholarship as a professor of social work.

The Supreme Court has not specifically addressed the significance of the responsibility to integrate religious faith into instruction and scholarship that would otherwise not be considered ministerial. If this integration responsibility is sufficient to render a teacher a minister within the meaning of the exception, the ministerial exception would be significantly expanded.... In fact, Gordon has recently attempted to describe all of its faculty, and even all of its employees, as ministers, over the objection of the faculty itself. It is our understanding that the ministerial exception defined by the Supreme Court is more circumscribed.

Salem News reports on the decision.

Recent Articles of Interest

From SSRN:

• Joel West Williams & Emily deLisle, An 'Unfulfilled, Hollow Promise': Lyng, Navajo Nation, and the Substantial Burden on Native American Religious Practice, (Ecology Law Quarterly, Forthcoming).
• Hila Keren, Separating Church and Market: The Duty to Secure Market Citizenship for All, (February 18, 2021).
• David Sugarman, Becoming Peter Fitzpatrick (1941-2020), (International Journal of Law in Context, 2021).
• Scot D. Gerber, The Intellectual History of European Laws about Religious Toleration Prior to the Planting of English America, (Glossae: European Journal of Legal History (2021)).
• Griffin Rubin, Constructing a Tower of Babble: An Examination of Purpose in Establishment Clause Jurisprudence, (SMU Law Review Forum, 2021).
• Johnny Davis, Biblical Natural Law vs. Law and Economics views on Contract Law, (February 28, 2021).
• Sarah Lee & Kevin J. O'Brien, Adapting in Difficult Circumstances: Protestant Pastors and the Xi Jinping Effect,  (Journal of Contemporary China (2021)).
• Edward P. Richards, A Historical Review of the State Police Powers and Their Relevance to the COVID-19 Pandemic of 2020, (11 J. Nat'l Sec. L. & Pol'y 83 (2020)).
• Netta Barak Corren & Lotem Perry-Hazan, Bidirectional Legal Socialization and the Boundaries of Law: The Case of Enclave Communities’ Compliance with COVID-19 Regulations, (Hebrew University of Jerusalem Legal Research Paper (2021)).
• Timothy A.O. Endicott, Human Rights and the Executive, ((2020) 11 Jurisprudence 597-609).

From SSRN (Islamic law):

• Hamdy Abdelrahman Hassan, A New Hotbed for Extremism? Jihadism and Collective Insecurity in the Sahel, (Asian Journal of Peacebuilding, Vol. 8 No. 2 (2020): 203-222).
• Amily Fikry, et. al., The Use of Humanoid Robotic as Assistive Rehabilitation Treatment for Children with Autism According to Objectives of Shariah in Islam, (International Journal of Academic Research in Business and Social Sciences, 10(7), 116–129).
• Dr. Md. Oliul Islam, A Study on Corruption in Bangladesh and Faith in the After Life Reduce Corruption, (IJARIIE-ISSN(O)-2395-4396, Vol-6 Issue-5 2020).
• Rifau Sulaiman Lebbe, General philosophy of Islamic law (Maqāsid) and the Common Law: Some similarities and differences, (February 21, 2021).
• Rifai Sulaiman Lebbe, Muslims in the West: Some reflections on their duties and responsibilities, (February 23, 2021).
• Note: In Feb. and March 2021, Dr. Rifai Sulaiman Lebbe posted numerous papers on Islamic law to the SSRN data base. Links to them all may be found here. [Updated].

9th Circuit Refuses Emergency Injunction For Apache Tribal Members

In a 2-1 decision in Apache Stronghold v. United States, (9th Cir., March 5, 2021), the U.S. 9th Circuit Court of appeals refused to issue an injunction pending appeal in the attempt by Apache tribal members to prevent the transfer of sacred Apache ceremonial ground to Resolution Copper. At the beginning of this month, the Biden Administration delayed the pending transfer by withdrawing a previous environmental impact statement. (See prior posting.) The 9th Circuit majority said in part:

The Government has averred that USFS “will not proceed to convey any right, title, and/or interest... to Resolution Copper” until after publication of a new FEIS, which will take “months.” The Government has also stated, under penalty of perjury, that USFS “will provide 30-days advance notice” to Apache Stronghold prior to the publication of a new FEIS. These representations mean that Apache Stronghold has not shown that it “needs relief within 21 days to avoid irreparable harm” pursuant to its request for an emergency stay.

Judge Bumatay filed a lengthy dissent, saying in part:

We are asked to trust the Government that, left to its own devices, it will not transfer the land to Resolution Copper in the near future. Faced with such a substantial harm to the Western Apaches’ free exercise rights, we should require more than the Government’s say-so.

EEOC General Counsel Fired By Biden

Yesterday morning, President Biden, through an e-mail (full text) from the White House Office of Personnel, requested the resignation of Equal Employment Opportunity Commission General Counsel Sharon Gustafson. Gustafson was a Trump appointee. As pointed out by the Washington Post in its report on these developments:

Gustafson was confirmed by the Senate to a four-year position in August 2019. She had raised the hackles of civil rights, LGBTQ and women’s groups during her confirmation hearing, by what they saw as “evasive” answers she gave about the rights of LGBTQ workers.

In a lengthy letter to the President (full text) just hours after the request for her resignation, Gustafson refused to resign. Her letter reads in part:

I am transmitting with this letter my Work Group's "Religious Discrimination in Employment: General Counsel Listening Sessions Final Report." This report and a related press release were published on the EEOC's website on January 13, 2021. On February 4. 2021-- shortly after your inauguration-- the report and press release were removed from the EEOC's website.... I can only assume that my resignation would be followed by similar suppression of our work promoting religious freedom.

The White House Office of Personnel responded yesterday to Gustafson with a brief e-mail (full text) informing her that her employment was terminated as of 5:00 pm that day.

Washington Supreme Court Rejects Facial Challenge To Discrimination Exemption for Non-Profits

In Woods v. Seattle's Union Gospel Mission, (WA Sup. Ct., March 4, 2021), the state of Washington's Supreme Court rejected a facial challenge to an exemption in the state's anti-discrimination law for religious and other non-profit corporations. Plaintiff was denied employment by a Christian legal aid program for the homeless because he was in a same-sex relationship. The majority held that because reasonable grounds exist to distinguish non-profit corporations from others, the exemption does not, on its face, violate Article I, §12 of the state constitution that prohibits any law granting privileges or immunities which are not equally available to all. The majority concluded, however, that the law may be unconstitutional as applied to plaintiff in this case.  It held that courts should look to federal case law on the ministerial exception doctrine to determine this:

Here, Woods seeks employment as a lawyer with SUGM. SUGM has rejected his application because it maintains that all employees’ first duty is to minister. In order to balance Woods’ fundamental rights with the religious protections guaranteed to SUGM, we hold that article I, section 12 is not offended if WLAD’s exception for religious organizations is applied concerning the claims of a “minister” as defined by Our Lady of Guadalupe and Hosanna-Tabor.

Justice Yu filed a concurring opinion which was joined by Chief Justice Gonzalez. Justice Stephens filed an opinion dissenting in part, joined by Justice Fairhurst.

Puzzling Opinion Dismisses Suit Against Archdiocese and Counselor On Ecclesiastical Abstention Grounds

In a somewhat puzzling opinion in Mosby v. Kleinguetl (TX App., March 4, 2021), a Texas state appellate court affirmed a trial court's dismissal on ecclesiastical abstention grounds of a husband's suit against the Catholic Archdiocese of Galveston-Houston and one of its marriage counselors. Claiming, among other things, breach of fiduciary duty and negligent counseling, plaintiff alleged that his wife developed a relationship with the counselor and that she eventually sued for divorce.  Despite its affirmance of the trial court's dismissal, the appellate court's opinion seems to conclude that the ecclesiastical abstention doctrine does not apply:

[T]he allegations at issue here do not clearly intrude upon a religious matter or interfere with the Archdiocese’s ability to manage its internal affairs. Mosby does not allege that the conduct forming the basis of his claims (i.e., the “family and marriage counseling” Kleinguetl provided to Cynthia) was grounded in religious doctrine or otherwise undertaken pursuant to guidance from the Archdiocese. Instead, Mosby alleges that Kleinguetl was having a “personal relationship” with Cynthia and had a history of “inappropriate relationships with others”. These general allegations do not implicate any religious standards or indicate that judicial resolution of this dispute will encroach upon the Archdiocese’s internal affairs or religious doctrine. Therefore, they do not affirmatively demonstrate that the underlying dispute is inherently ecclesiastical as necessary to warrant First Amendment protection.

The court went on:

Construing Mosby’s allegations liberally and taking them as true, we cannot unequivocally hold that Mosby’s pleadings demonstrate an incurable jurisdictional defect....

Then the court concluded: 

Here, Mosby had an opportunity to cure the jurisdictional defects and did not do so. After Kleinguetl and the Archdiocese filed their pleas to the jurisdiction, Mosby twice amended his pleadings but failed to present any additional facts sufficient to invoke the trial court’s jurisdiction. Mosby is not entitled to an additional opportunity to replead.

Southeast Texas Record reports on the decision.

Synod May Take Over Property of Defunct Church

In Central/Southern Illinois Synod of the Evangelical Lutheran Church in America v. Trinity Lutheran Church of Kankakee, (IL App., March 2, 2021), an Illinois state appellate court held that the parent Synod was entitled to take over the property of a local church whose membership had diminished to the point that it was no longer holding worship services or exercising governance functions. Both the constitution of the Synod and of the congregation provided that the Synod should take over the congregation's property in such cases. However one of the remaining church members changed the locks and prevented the Synod from entering. The court said in part:

Pursuant to both constitutions, the Synod Council determined that Trinity Lutheran was no longer viable and, thus, ceased to exist. Such a decision was within the province of the Synod Council and is an ecclesiastical matter involving church doctrine, polity, and practice. Therefore, we will defer to such a finding.

5th Circuit Hears Oral Arguments On Enjoining Health Care Anti-Discrimination Rule

 The U.S. 5th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Franciscan Alliance v. Cochran. In the case, a Texas federal district court vacated and remanded for further consideration a rule issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. (See prior posting.) As reported by Courthouse News Service, the appeal heard yesterday focused on whether the district court should also have issued an injunction against future enforcement of the rule. The district court declined to do so because the Trump Administration agreed that the rule was invalid. The original plaintiffs argued that the rule would force them to perform gender transition surgery and abortions in violation of their religious beliefs.

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.]