Recent Articles of Interest

From SSRN:

• Kent Roach, Trial by Jury and the Toronto 18, ((2021) 44 Manitoba Law Journal 221).
• Ira C. Lupu & Robert W. Tuttle, The Radical Uncertainty of Free Exercise Principles: A Comment on Fulton v. City of Philadelphia, (Forthcoming, American Constitution Society, Supreme Court Review (5th ed., 2020-21)).
• Jayanta Boruah & Junu Das, Conceptualizing Religious Offences and Understanding Secularism under Indian Legal System: An Empirical Study from Assam, (June 28, 2021).
• Rachel Casper, When Harassment at Work is Harassment at Church: Hostile Work Environments and the Ministerial Exception,  (University of Pennsylvania Journal of Law and Social Change, 2021).
• Muhammad Munir, Immunity, Independence and Accountability of Judges: An Islamic Law Perspective, (Majallah-yi Talim o Tahqiq, Vol. 3, Issue No. 2 April-June (2021), pp. 138-148).
• Tabrez Ebrahim, Intellectual Property Through a Non-Western Lens: Patents in Islamic Law, (Georgia State University Law Review, Vol. 37, No. 3, 2021).
• Ian Murray, How do we Regulate Activities within a Charity Law Framework Focused on Purposes?, ((2020) 26(2) Third Sector Review 65).
• Ian Murray & Rosemary Teele Langford, The Best Interests Duty and Corporate Charities — The Pursuit of Purpose, ((2021) 15 Journal of Equity 92).

From SmartCILP:

• Jonathan K. Van Patten, The Trial of Jesus, 65 South Dakota Law Review 285-316 (2020).
• Thomas E. Simmons, Saint Paul's Trial Narrative in Acts: Imperium Romanum vs. Vasileia Tou Theou, [Abstract],  65 South Dakota Law Review 317-370 (2020).

Food Ordinance Does Not Violate Rights Of Christians Distributing Sandwiches

In Redlich v. City of St. Louis, (ED MO, July 22, 2021), a Missouri federal magistrate judge dismissed a suit by two officers of the New Life Evangelical Center who, as part of their religious obligation, conduct outreach to the homeless.  They seek an injunction to prevent enforcement of a city ordinance that bans the distribution of “potentially hazardous foods” to the public without a temporary food permit. Plaintiffs were cited for distributing bologna sandwiches without a permit. The court rejected free exercise, free speech, freedom of association, equal protection and other challenges by plaintiffs, saying in part:

Plaintiffs have not established that the Ordinance constitutes a substantial burden on their free exercise rights. Assuming that food sharing is a central tenet of Plaintiffs’ religious beliefs, the evidence does not show that enforcement of the Ordinance prohibits Plaintiffs’ meaningful ability to adhere to their faith or denies Plaintiffs reasonable opportunities to engage in fundamental religious activities....

Plaintiffs show that the Ordinance certainly limits their ability to express their message in distributing sandwiches, but admit there is nothing about bologna sandwiches specifically that inherently expresses their religion. The facts show that in the alternative to obtaining a charitable feeding permit, Plaintiffs can and have distributed other types of food, bottled water, clothes, literature, and offered community and prayer without providing food subject to the Ordinance...

The record supports that the City enacted the Ordinance to adopt the National Food Code for public health and safety reasons, not to curtail a religious message. Thus, the Ordinance and its Amendment are content neutral and generally applicable....

Court Enjoins Arkansas Abortion Ban

In Little Rock Family Planning Services v. Jegley, (ED AR, July 20, 2021), an Arkansas federal district court issued a preliminary injunction against enforcing Arkansas Act 309 against pre-viability abortions. The statute bans all abortions, except when necessary to save the life of the pregnant woman.  The court said in part:

The Act thus “prohibit[s] any woman from making the ultimate decision to terminate her pregnancy before viability.”... Defendants do not make any argument to the contrary.... Instead, defendants argue that Roe and Casey were wrongly decided and that there is no constitutional right to abortion.... As a federal district court, this Court “is bound by the Supreme Court’s decisions in Casey.”... Accordingly, the Act is categorically unconstitutional, and plaintiffs have demonstrated that they are likely to succeed on the merits.

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

Pennsylvania Supreme Court: Abuse Victim's Suit Against Diocese Barred By Limitations Statute

In Rice v. Diocese of Altoona-Johnstown, (PA Sup. Ct., July 21, 2021), the Pennsylvania Supreme Court in a 5-2 decision held that the statute of limitations bars a suit against the Diocese of Altoona-Johnstown and its bishops for their role in covering up and facilitating a series of sexual assaults by plaintiff's childhood priest. Suit was filed 35 years after the assaults. Plaintiff sued after a Pennsylvania grand jury report detailed clergy abuse. The court held that the discovery rule did not toll the statute:

Because her claims for damages against the Diocese are based on [her priest's] alleged conduct, she was on inquiry notice regarding other potentially liable actors, including the Diocese, as a matter of law.

The court also rejected a claim that fraudulent concealment tolled the statute:

Under our jurisprudence, before a plaintiff may invoke the principles of fraudulent concealment, the plaintiff must use reasonable diligence to investigate her claims.

Chief Justice Baer filed a concurring opinion. Justice Wecht, joined by Justice Todd, filed a dissenting opinion, saying in part:

The Majority’s conclusion that Rice failed to exercise reasonable diligence in investigating the Diocese’s role in her attack is based on nothing more than the fact that Rice knew that she was assaulted on church property by a priest employed by the Diocese.... This analysis dramatically oversimplifies the reasonable diligence inquiry.

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

Court Enjoins Enforcement of West Virginia's Ban On Transgender Girls Being On Girl's Sports Teams

In B.P.J. v. West Virginia State Board of Education, (D WV, July 21, 2021), a West Virginia federal district court granted a preliminary injunction to an 11-year old transgender girl who was kept off the girl's cross country and track teams under a West Virginia statute that bars students whose biological sex is male from girls' teams. The court found a likelihood of success on plaintiff's equal protection and Title IX claims, saying in part:

B.P.J. has not undergone endogenous puberty and will not so long as she remains on her prescribed puberty blocking drugs. At this preliminary stage, B.P.J. has shown that she will not have any inherent physical advantage over the girls she would compete against on the girls’ cross country and track teams....

As applied to B.P.J., Section 18-2-25d is not substantially related to protecting girls’ opportunities in athletics or their physical safety when participating in athletics. I find that B.P.J. is likely to succeed on the merits of her equal protection claim.

Courthouse News Service reports on the decision.

Satanic Temple Can Move Ahead With Establishment Clause Claim As To Invocation Denial

In The Satanic Temple, Inc. v. City of Boston, MA (D MA, July 21, 2021), a Massachusetts federal district court refused to dismiss an Establishment Clause challenge to Boston's City Council invocation policy.  The court said in part:

TST reached out to the Boston City Council, which opens each of its meetings with a prayer, asking to give the invocation.... Defendant denied those requests, explaining that City Councilors choose speakers from their communities for their assigned weeks, and that TST could not lead the prayer without an invitation from a City Councilor.... Those denials were made after members of the Boston public objected to the possibility of TST opening a City Council session with a prayer and in the wake of a public outcry and 2,000-person protest after TST attempted to stage a “Black Mass” at Harvard....

Given the fact-specific nature of the inquiry into the constitutionality of legislative prayer schemes and the lack of controlling authority from the First Circuit or Supreme Court, this Court will not dismiss TST’s Establishment Clause claim at the motion to dismiss stage....  TST has plausibly raised a claim that Defendant’s prayer selection policy has discriminated against it in violation of the Establishment Clause.

The court dismissed plaintiff's free exercise, free speech and equal protection challenges. Universal Hub reports on the decision.

10th Circuit Rejects Qualified Immunity Defense In Suit By Native American Inmates

In Williams v. Hansen, (10th Cir., July 21, 2021), the U.S. 10th Circuit Court of Appeals held that a suit by Native American inmates against prison officials should not have been dismissed on qualified immunity grounds. Banning Native American religious services for at least 9 days and the use of tobacco for services for 30 days could have violated a clearly established constitutional right of prisoner to freely exercise their religious beliefs.

6th Circuit Hears Arguments On Masking Requirement For K-5 Religious Schools

Yesterday, the U.S. 6th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Resurrection School v. Hertel. In the case, a Michigan federal district court refused to issue a preliminary injunction sought by parents of Catholic school children to eliminate the COVID face covering requirement for children attending K through Grade 5 at religious schools. Parents contend that the requirement interferes with the free exercise of the students' religion. (See prior posting.) Washington Post, reporting on appellants' arguments, said in part:

[A]ttorneys for Resurrection School in Lansing and two parents will tell the U.S. Court of Appeals for the Sixth Circuit that Catholic doctrine holds that every person is made in God’s image.

“Unfortunately, a mask shields our humanity,” the school argued in its lawsuit. “And because God created us in His image, we are masking that image.”

9th Circuit Remands Churches' Challenge To California Abortion Coverage Mandate

In Foothill Church v. Watanabe, (9th Cir., July 19, 2021), the U.S. 9th Circuit Court of Appeals in a 2-1 decision vacated a California federal district court's rejection of free exercise and equal protection challenges to California's requirement that insurance companies include coverage for abortion services in all health insurance policies. The court remanded for further consideration in light of the U.S. Supreme Court's recent decision in Fulton v. City of Philadelphia. Judge Bress filed a dissenting opinion, saying in part:

We should have decided the appeal that was properly before us and held what the law pre- and post-Fulton plainly requires: the Director’s broad discretionary authority to issue individualized exemptions from the abortion coverage obligation means that we must apply strict scrutiny to California’s requirement that the churches’ health planscover elective abortions.

Separately, in a memorandum opinion issued at the same time, the court unanimously affirmed the dismissal of the churches' Establishment Clause claim, saying that all religious organizations are treated alike, and the Establishment Clause is not violated merely because a rule happens to coincide with the beliefs of some religions.

California Law Barring Misgendering Of Long Term Care Residents Violates 1st Amendment

In Taking Offense v. State of California, (CA App., July 16, 2021), a California state appellate court held that a provision in California's Lesbian, Gay, Bisexual, and Transgender (LGBT) Long-Term Care Facility Residents’ Bill of Rights violates free speech rights.  At issue is a provision that prohibits staff members of long-term care facilities from willfully and repeatedly referring to a resident by anything except the person's preferred name or pronoun. The court said in part:

[W]e conclude the pronoun provision ... is overinclusive in that it restricts more speech than is necessary to achieve the government’s compelling interest in eliminating discrimination, including harassment, on the basis of sex.... [T]he law criminalizes even occasional, isolated, off-hand instances of willful misgendering-- provided there has been at least one prior instance--without requiring that such occasional instances of misgendering amount to harassing or discriminatory conduct.

The court however rejected an equal protection challenge to a different provision of the law that requires room assignments in long term care facilities to be made on the basis of a resident's gender identity, unless a transgender resident requests otherwise.

Judge Hull filed a concurring opinion discussing the right of intimate association. Judge Robie also filed a concurring opinion.

Bidens Send Eid Greetings

Today is Eid al-Adha. Yesterday President and Mrs. Biden issued a statement (full text) sending greetings to those celebrating the holiday. The statement reads in part:

The Hajj, which convenes people from all walks of life and from every corner of the globe, is also a reminder of Islam’s commitment to equality and the shared roots of the world’s Abrahamic faiths. The United States is committed to working with the international community to emerge stronger from the pandemic, and thousands of Muslim Americans are among those eager to perform the pilgrimage next year, God willing.

9th Circuit Denies En Banc Review Of Football Coach's Challenge To Dismissal For On-Field Prayer

In Kennedy v. Bremerton School District, (9th Cir., July 19, 2021), the U.S. 9th Circuit Court of Appeals rejected a sua sponte request for a rehearing en banc in the case of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. A 3-judge panel upheld upheld a Washington state school board's dismissal of the coach. (See prior posting.) The denial of the rehearing however generated six concurring and dissenting opinions and statements spanning 92 pages, reflecting sharp differences. Judge Smith's opinion concurring in the denial of review says in part:

Unlike Odysseus, who was able to resist the seductive song of the Sirens by being tied to a mast and having his shipmates stop their ears with bees’ wax, our colleague, Judge O’Scannlain, appears to have succumbed to the Siren song of a deceitful narrative of this case spun by counsel for Appellant, to the effect that Joseph Kennedy, a Bremerton High School (BHS) football coach, was disciplined for holding silent, private prayers. That narrative is false.... [T]he reader should know the following basic truth ab initio: Kennedy was never disciplined by BHS for offering silent, private prayers.

Senior Judge O'Scannlain, joined in full by 5 other judges and in part by two more, said in part:

It is axiomatic that teachers do not “shed” their First Amendment protections “at the schoolhouse gate.”... Yet the opinion in this case obliterates such constitutional protections by announcing a new rule that any speech by a public school teacher or coach, while on the clock and in earshot of others, is subject to plenary control by the government. Indeed, we are told that, from the moment public high school football coach Joseph Kennedy arrives at work until the very last of his players has gone home after a game, the Free Speech Clause simply doesn’t apply to him.

First Liberty announced that an appeal will be filed with the U.S. Supreme Court.

Recent Articles of Interest

From SSRN:

• Brian Bix, Protestant Interpretation, Conventions, and Legal Truth, (Thomas Bustamante & Thiago Lopes Decat (eds.), Philosophy of Law as an Integral Part of Philosophy: Essays on the Jurisprudence of Gerald J. Postema (Hart Publishing, 2020)).
• Marc Spindelman, Justice Gorsuch's Choice: From Bostock to Dobbs (What a Blockbuster LGBT Rights Ruling Might Mean for the Future of Abortion Rights), (Nat'l L.J. (July 9, 2021)).
• Nelson Tebbe, The Principle and Politics of Equal Value, (Columbia Law Review, Forthcoming).
• Nakul Nayak, Constitutional Morality: An Indian Framework,  (American Journal of Comparative Law (forthcoming)).

From SmartCILP:

• Kristen A. Carpenter, Book Review. Living the Sacred: Indigenous Peoples and Religious Freedom. Defend the Sacred: Native American Religious Freedom beyond the First Amendment, by Michael D. McNally, 134 Harvard Law Review 2103-2157 (2021).
• Peter B. Janci, Helping #ChurchToo Abuse Victims Hold Religious Entities Accountable in Civil Cases, 14 Liberty University Law Review 317-350 (2020).
• Victor I. Vieth et al., Keeping Faith: The Potential Role of a Chaplain to Address the Spiritual Needs of Maltreated Children and Advise Child Abuse Multi-Disciplinary Teams, 14 Liberty University Law Review 351-380 (2020).
• Bradley J. Lingo & Michael G. Schietzelt, Fulton and the Future of Free Exercise, 33 Regent University Law Review 5-38 (2020).

Minnesota Governor Orders Agencies To Combat Conversion Therapy

On July 15, Minnesota Governor Tim Walz issued Executive Order 21-25 (full text) providing:

All state agencies must pursue opportunities and coordinate with each other to protect Minnesotans, particularly minors and vulnerable adults, from conversion therapy to the fullest extent of their authority.

The Executive Order then details administrative actions that are to be taken by various state departments and agencies to prevent mental health professionals from working to change individuals' sexual orientation or gender identity.  AP reports on the governor's action. [Thanks to Scott Mange for the lead.]

EU Court of Justice Says Neutral Ban On Employees Wearing Any Religious Or Political Symbols Is Permitted

In IX v. WABE eV, (CJ EU, July 15, 2021), the Court of Justice of the European Union gave preliminary rulings in two cases from German Labor Courts on the extent to which employers can ban employees from wearing visible political, religious or philosophical signs in the workplace.  At issue was whether applying such a ban to Islamic headscarves constitutes either direct discrimination or indirect discrimination. EU Directive 2000/78 allows apparently neutral rules that particularly impact persons of a specific religion or belief only if they are "objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary."

In one case, at issue was whether a day care center could apply such a ban to a special needs teacher. The court held the ban does not constitute direct religious discrimination "provided that that rule is applied in a general and undifferentiated way." It held that the ban would not constitute prohibited indirect discrimination if the policy meets a genuine need on the part of that employer; the difference of treatment is appropriate for the purpose of ensuring that the employer’s policy of neutrality is properly applied, and the ban is limited to what is strictly necessary.

The second case involves a sales assistant/ cashier at a drug store. The employer's policy only banned "conspicuous, large-sized political, philosophical or religious signs." The Court concluded that a ban limited to the wearing of conspicuous, large-sized signs cannot be a neutral policy since the wearing of any sign, even a small-sized one, undermines the ability ... to achieve the aim allegedly pursued and therefore calls into question the consistency of that policy of neutrality."

AP reports on the decision. [Thanks to Scott Mange for the lead.]

8th Circuit: University of Iowa Discriminated Against Christian Student Group

In Intervarsity Christian Fellowship/ USA v. University of Iowa, (8th Cir., July 16, 2021), the U.S. 8th Circuit Court of Appeals held that the University of Iowa violated the 1st Amendment rights of Intervarsity Christian Fellowship when the University applied its Human Rights Policy against ICF in a discriminatory manner. ICF required students seeking leadership positions to affirm a statement of faith based on biblical Christianity-- including the belief that same-sex relationships were against the Bible. The court said in part:

For decades, the University permitted RSOs to base their membership and leadership on religious affirmations or other traits that are protected by the Human Rights Policy.... In fact, the University still permits this; but it didn’t for InterVarsity. The district court found that the defendants likely violated BLinC’s constitutional rights and ordered the University to apply the Human Rights Policy equally to all RSOs. But instead of doing that, the University started a compliance review that prioritized religious organizations. That review led to InterVarsity’s deregistration, along with other religious groups. The University’s fervor dissipated, however, once they finished with religious RSOs. Sororities and fraternities got exemptions from the Human Rights Policy. Other groups were permitted to base membership on sex, race, veteran status, and even some religious beliefs.

Take LoveWorks, for example. It was formed by the student who was denied a leadership role in BLinC. LoveWorks requires its members and leaders to sign a “gay-affirming statement of Christian faith.’” ... Despite that requirement—which violates the Human Rights Policy just as much as InterVarsity’s—the University did nothing. 

We are hard-pressed to find a clearer example of viewpoint discrimination.

Becket issued a press release announcing the decision.

Suit Claims Change Of High School's Name Was Motivated By Anti-Catholic Sentiment

Suit was filed this week in a California state trial court challenging on Establishment Clause, as well as other, grounds the change of name of San Diego's Junipero Serra High School to Canyon Hills High School.  The complaint (full text) in Cox v.Renfree, (CA Super. Ct., filed 7/14/2021) alleges in part:

the entire effort to rebrand Junipero Serra High School has demonstrated systemic, deep-seated, anti-Catholic motivations....

The Franciscan priest, Junipero Serra, has been regarded as California's founding father. He established a Mission on the shores of San Diego Bay in 1769. The complaint in the lawsuit contends:

In the summer of 2020, Black Lives Matter protests and other demonstrations swept across the county, sparking an acute interest in Critical Race Theory and public erasure of symbols of colonialism—including Serra himself. Statues of Serra were defaced and attacked, and one of his churches was burned in an attack that represented animosity toward the Catholic faith and its role in California history. 

The complaint goes on to argue:

By selecting the rattlesnake as the school’s new mascot, which tribal members have stated is a sacred creature to their people, and removing the name of a Catholic saint from the school, Defendants are clearly endorsing and celebrating the religion of one group at the expense of another.

Thomas More Society issued a press release announcing the filing of the lawsuit.

European Court Says Russia Violated Convention In Refusing To Register Same-Sex Unions

In Fedotova and Others v. Russia, (ECHR, July 13, 2021), the European Court of Human Rights in a Chamber Judgment held that Russia violated Article 8 (Respect For Private and Family Life) of the European Convention on Human Rights when it refused to register the marriage of same-sex couples. The Court said in part:

49.  ... Article 8 ... does not explicitly impose ... an obligation to formally acknowledge same-sex unions. However, it implies the need for striking a fair balance between the competing interests of same-sex couples and of the community as a whole....

54.  The Court notes that the protection of “traditional marriage” stipulated by the amendments to the Russian Constitution in 2020 ... is in principle weighty and legitimate interest, which may have positive effect in strengthening family unions. The Court, however, cannot discern any risks for traditional marriage which the formal acknowledgment of same-sex unions may involve, since it does not prevent different-sex couples from entering marriage, or enjoying the benefits which the marriage gives....

56.  ... [T]he respondent Government have a margin of appreciation to choose the most appropriate form of registration of same-sex unions taking into account its specific social and cultural context (for example, civil partnership, civil union, or civil solidarity act). In the present case they have overstepped that margin, because no legal framework capable of protecting the applicants’ relationships as same-sex couples has been available under domestic law.

According to Euronews, Russian authorities have rejected the Court's judgment, saying that the Court is meddling in the country's internal affairs. 

Samuels Confirmed For Second Term On EEOC

According to a press release from the U.S. Equal Employment Opportunity Commission, the U.S. Senate yesterday confirmed the nomination of Jocelyn Samuels to serve a second term as an EEOC Commissioner. She will serve a 5-year term and continue to serve as Vice-Chair of the EEOC. Before joining the EEOC, Samuels was Executive Director of UCLA's Williams Institute which conducts research on sexual orientation and gender identity law and public policy. The EEOC enforces federal laws barring employment discrimination, including religious discrimination.

Pennsylvania Man Sentenced For Online Threats To Jewish Community

The U.S. Attorney's Office for the Middle District of Pennsylvania announced yesterday that a 32 year old Pennsylvania man has been sentenced to 18-months in prison after he pleaded guilty to one count of interstate transmission of threats to injure another person. According to the press release:

[Corbin]  Kauffman posted a digitally-created image of his own arm and hand aiming an AR-15 rifle at a congregation of praying Jewish men, gathered in a synagogue.  The threatening image came in the wake of the October 27, 2018 mass-shooting at Tree of Life synagogue in Pittsburgh, Pennsylvania.....  On the same day ..., Kauffman also shared a video of the Tree of Life shooting, as well as another post in support of the shooter [and] ... also posted multiple references to “hate crimes” and a photograph of vandalism he committed by defacing a display case at the Chabad Lubavitch Jewish Center in Ocean City, Maryland, with white supremacist and anti-Semitic stickers.

Teacher Who Refused To Address Transgender Students By Preferred Names Loses Title VII Suit

In Kluge v. Brownsburg Community School Corporation, (SD IN, July 12, 2021), an Indiana federal district court dismissed a suit by a former teacher who resigned rather than comply with a school policy requiring him to address transgender students by their preferred names and pronouns. Plaintiff contended that it violated his Christian religious beliefs to comply with this policy. He sued under Title VII, claiming failure to accommodate his religious beliefs and retaliation. The court said in part:

[A]  name carries with it enough importance to overcome a public school corporation's duty to accommodate a teacher's sincerely held religious beliefs against a policy that requires staff to use transgender students' preferred names when supported by a parent and health care provider. Because BCSC ... could not accommodate Mr. Kluge's religious beliefs without sustaining undue hardship, and because Mr. Kluge has failed to make a meaningful argument or adduce evidence in support of a claim for retaliation, BCSC's Cross-Motion for Summary Judgment is GRANTED....

Indiana Lawyer reports on the decision.

Plaintiff Lacks Standing To Challenge Michigan COVID Order Exemption For Worship Services

In Bormuth v. Whitmer, (ED MI, July 12, 2021), a Michigan federal magistrate judge denied plaintiff's motion to file a supplemental complaint in a challenge to a portion of Michigan Governor Gretchen Whitmer's now-rescinded COVID-19 Orders. At issue was an exemption from penalties for violation of stay-at-home orders by places of religious worship that allowed worship services, or by individuals travelling to places of worship. The court said in part:

The exemptions from prosecution for places of religious worship and their owners caused no harm to Plaintiff; if anything, they provided a protection to him. Under the exemptions, he enjoyed the freedom to practice his own religion at any indoor or outdoor “place of religious worship” without fear of prosecution....

The exemptions at issue neither established a state religion, nor favored particular religions, nor inhibited Plaintiff’s own free expression of genuinely-held religious beliefs. Indeed, the exemptions protected his expression of such beliefs....

Plaintiff’s proposed supplemental complaint still fails to demonstrate standing on the basis of a “concrete, particularized, and actual or imminent” injury... His proposed supplemental pleading will not cure the lack of justiciability identified in my prior report and recommendation.

Plaintiffs Lack Standing To Challenge "Black Lives Matter" Mural As Establishment Clause Violation

In Penkoski v. Bowser, (D DC, July 12, 2021), the D.C. federal district court held that a Black Lives Matter mural painted on DC streets was government speech, rejecting plaintiffs' claim of content discrimination in a public forum.  The court also dismissed on standing grounds plaintiffs' claim that the mural violates the Establishment Clause by promoting the religion of Secular Humanism.

Court Enjoins Statute Requiring Warning About Restroom Access

In Bongo Productions, LLC v. Lawrence, (MD TN, July 9, 2021), a Tennessee federal district court issued a preliminary injunction against enforcement of a recent Tennessee statute that requires businesses which allow individuals to use rest rooms consistent with their gender identity to post a sign by each rest room stating: "This facility maintains a policy of allowing the use of restrooms by either biological sex, regardless of the designation of the restroom." The court concluded that the statute violates plaintiffs' First Amendment free speech rights by compelling speech. The court said in part:

[T]here is simply no basis whatsoever for concluding that the Act is narrowly tailored to serve any compelling governmental purpose....

The defendants are right that, as the Supreme Court has held, strict scrutiny typically does not apply to laws compelling commercial actors to disclose “purely factual and uncontroversial information about the terms under which [their] services will be available.”...

The Supreme Court has expressly recognized that “sexual orientation and gender identity” are, generally speaking, “controversial subjects.”...

[P]eople on one side of a disagreement do not get to unilaterally declare their position to be uncontroversial, because that is not how the concept of “controversy” works. Put another way, the defendants might be wise to accept that, once you are in a heated argument with multiple folks about whether your position is uncontroversial, there is a good chance that you may have already lost.

Gay City News reports on the decision.

5th Circuit: Courtroom Invocations Do Not Violate Establishment Clause

In Freedom From Religion Foundation, Inc. v. Mack, (5th Cir., July 9, 2021), the U.S. 5th Circuit Court of Appeals granted a stay pending appeal of a Texas district court's declaratory judgment order which concluded that a a Justice of the Peace's program under which court sessions are opened with a prayer from a volunteer chaplain violates the Establishment Clause. (See prior posting.) Attendees may to step out of the courtroom before the ceremony if they wish. The appeals court held that official capacity claims under 42 USC §1983 are barred, and that FFRF's individual capacity claims are likely to fail. The court said in part:

The Supreme Court has held that our Nation’s history and tradition allow legislatures to use tax dollars to pay for chaplains who perform sectarian prayers before sessions. See Marsh v. Chambers, 463 U.S. 783 (1983). If anything, Judge Mack’s chaplaincy program raises fewer questions under the Establishment Clause because it uses zero tax dollars and operates on a volunteer basis....

It’s true that Marsh and Town of Greece involved a legislature’s chaplains, not a justice of the peace’s chaplains. But it’s unclear why that matters, given the abundant history and tradition of courtroom prayer.

Washington Times reports on the decision.

7th Circuit En Banc: Ministerial Exception Applies To Hostile Work Environment Claims

In Demkovich v. St. Andrew the Apostle Parish, Calumet City, (7th Cir., July 9, 2021), the U.S. 7th Circuit Court of Appeals, sitting en banc, held by a vote of 7-3 that the ministerial exception doctrine applies to protect religious organizations from  hostile work environment claims alleging minister-on-minister harassment. A 3-judge panel had reach the opposite conclusion. At issue is derogatory and demeaning comments made to the church's gay music director by the church's pastor. The majority opinion, written by Judge Brennan, said in part:

This case concerns what one minister, Reverend Dada, said to another, Demkovich. Adjudicating Demkovich’s allegations of minister-on-minister harassment would not only undercut a religious organization’s constitutionally protected relationship with its ministers, but also cause civil intrusion into, and excessive entanglement with, the religious sphere.

Judge Hamilton filed a dissenting opinion, joined by Judges Rovner and Wood, saying in part: 

[P]laintiff is not asking the court to pass on the substance of the Catholic Church’s religious doctrines or practices. Civil courts have nothing to say about whether the Church should permit same-sex marriage, for example, or whether the Church should have a hierarchical supervisory structure. The Church was free to decide whether to retain plaintiff or fire him. But plaintiff’s hostile work environment claims allege conduct that constituted abuse under neutral, generally applicable standards that would be enforceable on behalf of a non-ministerial employee. That conduct is, by definition, not necessary to control or supervise any employee.

Bloomberg Law reports on the decision.

Israel's Supreme Court Extends Surrogacy Rights To Same-Sex Couples and Single Men

As reported by AP and The Forward, Israel's Supreme Court sitting as the High Court of Justice yesterday ruled that the government must allow same-sex couples and single men to become parents through surrogate mothers on a equal basis with heterosexual couples and single women. Its ruling takes effect in 6 months, in order to give time for the creation of professional guidelines. AP explains:

The court ruled in 2020 that a surrogacy law, which had expanded access to single women but excluded gay couples, “disproportionately harmed the right to equality and the right to parenthood” and was unlawful.

It gave the government a year to draw up a new law, but parliament failed to meet the deadline.

[Thanks to Steven H. Sholk for the lead.]

Recent Articles of Interest

• From SSRN:
• M. Mohsin Alam Bhat, Religious Freedom in Contest: Enforcing Religion Through Anti- Conversion Laws in India, (Journal of Law, Religion and State (2021)).
• Raphael Cohen-Almagor, Can Group Rights Justify the Denial of Education to Children? The Amish in the United States as a Case Study, (SN Social Sciences, 1: 164 (2021)).
• Jayanta Boruah, Euthanasia in India: A Review on Its Constitutional Validity, (Lex Humanitariae: Journal for a Change 2021).
• Anthony Michael Kreis, Unlawful Genders, (Law and Contemporary Problems (forthcoming)).

From SmartCILP:

• T.J. Denley, Balancing Burdens in Religious Freedom Claims, [Abstract], 26 Cardozo Journal of Equal Rights & Social Justice 207-232 (2020).

9th Circuit Hears Oral Arguments In Washington Insurance Coverage Mandate Challenge

On Friday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Cedar Park Assembly of God v. Kreidler. (Video of full oral arguments.) In the case, a Washington federal district court refused to grant a preliminary injunction to a church that objects to Washington's SB 6219 which requires health insurance plans that cover maternity care to also cover abortions. A Washington federal district court had dismissed the suit on standing grounds. (See prior posting.) Washington Examiner reports on the oral arguments.

Content of Sermon Protected By Ecclesiastical Abstention Doctrine

In Hullibarger v. Archdiocese of Detroit, (MI App., July 8, 2021), a Michigan state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a suit claiming that a priest's sermon at the funeral of plaintiff's son amounted to intentional infliction of emotional distress, misrepresentation and invasion of privacy. The court also held that the ecclesiastical abstention doctrine requires dismissal of  a negligent hiring, supervision and retention claim. According to the court:

Plaintiff’s son committed suicide in early December 2018, but his family kept the manner of his death from the public. Plaintiff’s pastor, defendant Father Don LaCuesta, officiated at the funeral and during his homily revealed the suicide of plaintiff’s son to the public. He then proceeded to preach about suicide as a grave sin and specifically about how it endangered the immortal soul of plaintiff’s son.

Enforcement of Islamic Pre-Nup Challenged On Appeal

An appeal was filed last month in a Texas state appellate court challenging a trial court's enforcement of an arbitration clause in an Islamic pre-nuptial agreement. The petition for a writ of mandamus in In re Ayad, (TX App., filed 6/22/2021) (full text) contends that the agreement is void as a matter of law and against public policy, and was involuntarily executed. The petition contends in part:

The trial court clearly abused its discretion in failing to properly analyze the law when it validated and enforced the Islamic Pre-Nuptial Agreement and compelled arbitration in front of a Muslim Court applying solely Islamic Law....

[Thanks to Eugene Volokh via  Religionlaw for the lead.]

Dismissal Of Suit Against Trump For Promoting Religion Affirmed By Delaware Supreme Court

In Kelly v. Trump,(DE Sup. Ct., July 7, 2021), the Delaware Supreme Court affirmed the dismissal on standing grounds of two claims in a suit against then-President Donald Trump contending that he created the illusion of government sponsorship of religion, The court also affirmed the refusal to allow plaintiff to substitute President Biden as defendant because he allowed Executive Order 13798 to remain in effect.  According to the court:

[Plaintiff]  contends that the executive order “require[s] government organizations and agents to partner with churches to pay churches to perform government business for the government....  She states that the “churches create the illusion of charity while serving business greed” and that she “believe[s] people will be damned to hell for thinking business greed is charity.”...

Kelly’s claim is manifestly without merit. Contrary to her assertion, Executive Order 13798, on its face, does not prescribe any partnership between the government and any religious organization.

5th Circuit: Ban On Proselytizing At Outdoor Market Violates Free Speech Rigths

In Denton v. City of El Paso, Texas, (5th Cir., July 6, 2021), the U.S. 5th Circuit Court of Appeals remanded the case to a Texas federal district court ordering it to grant a preliminary injunction barring El Paso from prohibiting religious proselytizing at the weekly outdoor El Paso Art and Farmers Market. The city's rules bar fundraising, political campaigning and religious proselytizing from the market. The court held that these exclusions are content-based, and concluded:

It is unclear whether the City has asserted a compelling government interest. We need not decide this issue because, even assuming that it did assert a compelling government interest, a prior restraint of speech based on a viewpoint is unlikely to be the least restrictive means of regulation available.

Parents Who Headed Capital Drive Sue Catholic School For Straying From Mainstream Catholicism

Suit was filed in a Florida state trial court last month by the parents of two Catholic school students who were the joint chairs of the school's $9 million capital campaign. They had personally pledged over $1.35 million to the campaign and paid a portion of that pledge. They now seek to have the court declare the pledge null and void, and order return to them of pledged amounts already paid, as well as tuition paid for their daughters. The complaint (full text) in Scarpo v. Academy of the Holy Names of Florida, Inc., (FL Cir. Ct., filed 6/26/2021), alleges in part:

[I]n Defendants' zeal to embrace the politically correct, "woke" culture currently in vogue, the Defendants breached Defendants' promises to provide Plaintiffs minor children with a Cahtolic [sic.] Education in return for Plaintiffs paying tuition and fund-raising for the Academy of the Holy Names....

[T]he Academy lost its way, distancing itself from mainstream Catholicism, and embracing the new, politically correct, divisive and "woke" culture where gender identity, human sexuality, and pregnancy termination among other "hot-button issues," took center stage and mainstream Catholicism and Catholic Catechism were relegated to what was billed as an unfortunate past deserving of its Students guilt for not having been "woke" sooner.

Friendly Atheist blog reports on the case, as does AP.

5th Circuit Hears Arguments From Judge Who Refuses To Officiate At Same-Sex Weddings

 Yesterday, the U.S. 5th Circuit Court of Appeals heard oral arguments in Umphress v. Hall. (Audio of full oral arguments.) In the case, a Texas federal district court dismissed on standing and ripeness grounds (Umphress v. Hall,(ND TX, Nov. 10, 2020), a suit by a Texas judge who was seeking to prevent future action by the State Commission on Judicial Conduct against judges who refuse to officiatae at same-sex weddings. Bloomberg Law reports on the case.

Social Work Applicant Moves Ahead On Religious Discrimination Claim

In Weiss v. City University of New York, (SD NY, filed 7/2/2021), a New York federal district court refused to dismiss certain of plaintiff's equal protection and Establishment Clause claims. Plaintiff alleged that she was denied admission to the University's social work program because officials weeded out Jews from a religious background, believing they are too conservative to be social workers.

Alaska Homeless Shelter Challenges City's Public Accommodation Law

Last week, an Anchorage, Alaska women's homeless shelter filed suit in an Alaska federal district court contending that the city's recently amended public accommodation law that requires it to house transgender women violates the shelter's 1st and 14th Amendment rights.  The law prohibits discrimination on the basis of sex or gender identity. The complaint (full text) in Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, filed 6/30/2021), says in part:

Defendants insist Hope Center’s religious beliefs— specifically, its beliefs about sexuality and gender—are discriminatory and deserving of punishment. In Defendants’ view, providing charitable shelter exclusively to vulnerable women is unlawful sex and gender-identity discrimination....

Because of its religious beliefs and desire to create a safe and secure environment, Hope Center allows only biological women to stay overnight at the shelter....

No Hope Center policy prohibits biological women who identify as men from accessing the shelter....

ADF issued a press release announcing the filing of the lawsuit.

State Department Will Accommodate LGBTQI+ Citizens In Passport Designations

The U.S. State Department in a press release dated June 30 announced: 

the Department will be taking further steps toward ensuring the fair treatment of LGBTQI+ U.S. citizens, regardless of their gender or sex, by beginning the process of updating our procedures for the issuance of U.S. Passports and Consular Reports of Birth Abroad (CRBA).

Most immediately, we will be updating our procedures to allow applicants to self-select their gender as “M” or “F” and will no longer require medical certification if an applicant’s self-selected gender does not match the gender on their other citizenship or identity documents.  The Department has begun moving towards adding a gender marker for non-binary, intersex, and gender non-conforming persons applying for a passport or CRBA.  We are evaluating the best approach to achieve this goal.

TLDEF issued a press release reacting to the announcement.

Recent Articles of Interest

From SSRN:

• Ronald J. Colombo, Corporate Entanglement with Religion and the Supression of Expression, (Seattle University Law Review, Vol. 45, 2022).
• Alexander MacDonald, Religious Schools, Collective Bargaining, and the Constitutional Legacy of Catholic Bishop, (Federalist Society Review, Vol. 22 (2021)).
• Kwaku Ayim Atta-Asiedu, Theories in Contemporary African Studies Research: The Theory of Religious Compromisation, (June 17, 2021).
• Jayanta Boruah, Contribution of Law in Promoting Secularism in Assam: A Socio-Legal Study, (Dissertation Thesis to Krishna Kanta Handique State Open University 2019).
• Jayanta Boruah, Euthanasia in India: A Review on Its Constitutional Validity, (Lex Humanitariae: Journal for Change 2021).
• John Mikhail, Does Originalism Have a Natural Law Problem?, (Law and History Review, Vol. 39, No. 2, pp. 361-367 (2021)).
• Gabriella Gimigliano, Banking Contracts and Sharia Rules within the European Union Framework, (Open Review of Management, Banking, and Finance, 2019, 1-17).
• Thomas Aronsson, Olof Johansson‐Stenman & Ronald Wendner, Charity, Status, and Optimal Taxation: Welfarist and Non-Welfarist Approaches, (June 9, 2021).

From SmartCILP and elsewhere:

• Symposium on “Halakhah: The Rabbinic Idea of Law”, Vallinova Law Review, Vol. 64, Issue 5 (2019).
• Nimra H. Azmi, Uncovered: Title VI & Title IX's Limited Protections for Muslim Students Who Veil, 43 Harvard Journal of Law & Gender 281-300 (2020).
• Spearit, Reimagining the Death Penalty: Targeting Christians, Conservatives, 68 Buffalo Law Review 93-138 (2020)
• Elizabeth Reiner Platt, Katherine Franke & Lilia Hadjiivanova, We The People (of Faith): The Supremacy of Religious Rights in the Shadow of a Pandemic, (Law, Rights & Religion Project, Columbia Law School, 2021).

Ohio Enacts Conscience Protections For Medical Personnel and Institutions

On July 1, Ohio Governor Mike DeWine signed Am. Sub. House Bill 110, Ohio's Budget bill. (Signing ceremony.) Included in the 2438-page bill is a provision providing conscience protections for health care practitioners, institutions and insurers (at pg. 1453- 1455, enacting ORC Sec. 4743.10). The new section reads in part:

Notwithstanding any conflicting provision of the Revised Code, a medical practitioner, health care institution, or health care payer has the freedom to decline to perform, participate in, or pay for any health care service which violates the practitioner's, institution's, or payer's conscience as informed by the moral, ethical, or religious beliefs or principles held by the practitioner, institution, or payer. Exercise of the right of conscience is limited to conscience-based objections to a particular health care service.

... When possible and when the medical practitioner is willing, the medical practitioner shall seek to transfer the patient to a colleague who will provide the requested health care service. If participation in a transfer of care for a particular health care service violates the medical practitioner's beliefs or convictions or no willing colleague is identified, the patient shall be notified and provided the opportunity to seek an alternate medical practitioner. Upon patient request, the patient's medical records shall be promptly released to the patient.

The law provides for treble damage actions and injunctive relief for medical personnel where the new conscience provisions have been violated.

Metro Weekly reports on the enactment of this provision. [Thanks to Scott Mange for the lead.]

Wisconsin Supreme Court Interprets Statute Limiting School Aid To One Area School Of Each Denomination

In St. Augustine School v. Taylor, (WI Sup. Ct., July 2, 2021), the Wisconsin Supreme Court answered a certified question from the U.S. 7th Circuit Court of Appeals on how to apply a state statute regarding transportation aid to parochial schools. Under Wis. Stat. §§ 121.51 and 121.54, private schools can receive funding for transporting children to school, but in each attendance area only one school affiliated with each religious denomination can get funding. At issue in this case is how a court is to determine whether two Catholic schools in the same area are affiliated with the same denomination.  The court concluded:

... [I]n determining whether schools are "affiliated with the same religious denomination" pursuant to Wis. Stat. § 121.51, the Superintendent is not limited to consideration of a school's corporate documents exclusively. In conducting a neutral and secular inquiry, the Superintendent may also consider the professions of the school with regard to the school's self-identification and affiliation, but the Superintendent may not conduct any investigation or surveillance with respect to the school's religious beliefs, practices, or teachings.

Justice Roggensack filed a concurring opinion arguing that whether both schools are "affiliated" with the Archdiocese of Milwaukee depends on whether there is a mutual organizational relationship between the schools and the Archdiocese.

Justice Hagedorn filed a concurring opinion, saying in part:

[A] "religious denomination" is an organizational entity, not a synonym for religious faith generally. Thus, when Wis. Stat. § 121.51(1) asks whether two schools are "affiliated with the same religious denomination," the question is not whether both schools share the same creed, but whether they are both affiliated with a particular kind of religious organization——a religious denomination.

Justice Bradley filed a dissenting opinion arguing that the provision denying benefits where two religious schools serve overlapping attendance areas is unconstitutional, saying in part:

On its face, § 121.51(1) denies a public benefit only to students attending religious schools in overlapping attendance areas. Private but secular schools located in overlapping attendance areas are not disqualified from receiving benefits on this basis. Denying an otherwise publicly available benefit on account of religious identity violates the First Amendment to the United States Constitution....

 Any governmental overriding of a religious school's profession of independence from the "religious denomination" of another school ... would "require us to rule that some religious adherents misunderstand their own religious beliefs. We think such an approach cannot be squared with the Constitution or with our precedents, and that it would cast the Judiciary in a role that [courts] were never intended to play."

Supreme Court GVR's Amish Families' Challenge To Septic Tank Requirements

On Friday, in Mast v. Fillmore County, Minnesota, (Sup. Ct., July 2, 2021), the U.S. Supreme Court granted certiorari, summarily vacated the judgment of the Minnesota Court of Appeals, and remanded for consideration in light of the Court's recent decision in Fulton v. Philadelphia, the case of Amish families who object to state sewage system regulations. In the case, the Minnesota appellate court rejected claims by Swartzentruber Amish community members that laws requiring them to install septic systems to dispose of their waste water violate their rights under the Religious Land Use and Institutionalized Persons Act. (See prior posting.) 

Two Justices filed opinions concurring in the Court's action. Justice Alito in a brief opinion said that the lower court "plainly misinterpreted and misapplied" RLUIPA. Justice Gorsuch, in a longer concurring opinion, said in part:

Perhaps most notably, the County and courts below erred by treating the County’s general interest in sanitation regulations as “compelling” without reference to the specific application of those rules to this community. As Fulton explains, strict scrutiny demands “a more precise analysis.”

Supreme Court Denies Cert. In Case of Florist's Refusal To Provide Flowers For Same-Sex Wedding

On Friday, the U.S. Supreme Court, by a vote of 6-3, denied review in the long-running case of Arlene's Flowers, Inc. v. Washington,  (Docket No. 19-333, certiorari denied 7/2/2021). (Order List.) Justices Thomas, Alito and Gorsuch would have granted review.  In the case, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner. (See prior posting.)

Supreme Court Grants Cert. In Maine Case On Tuition Vouchers For Sectarian Schools

The U.S. Supreme Court on Friday granted review in Carson v. Makin, (Docket No. 20-1088, certiorari granted 7/2/2021). (Order List.) 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. Schools that provide religious instruction do not qualify. (See prior posting.) The SCOTUSblog case page has links to the briefs and other filings in the case.

5th Circuit Refuses To Dismiss Suit Against Teacher Who Required Writing The Pledge

In Oliver v. Arnold, (5th Cir., June 29, 2021), the U.S. 5th Circuit Court of Appeals, in a 2-1 decision  dismissed a high school teacher's appeal of a Texas federal district court's refusal to grant his summary judgment on qualified immunity grounds. The suit was brought by his former student who refused on religious grounds to recite the Pledge of Allegiance. The student alleged that the teacher attempted to require her to transcribe the Pledge and when she refused, he continued to retaliate against her in class. The majority said in part:

Because Arnold seeks to have this court resolve the very factual disputes that the district court found to be genuine and properly submitted for trial on the merits, which we do not have jurisdiction to do, we grant Oliver’s motion and DISMISS the appeal.

Judge Duncan dissented, saying in part:

[C]onsider the implications of the majority’s approach. It sends to trial a § 1983 claim based on a student’s objection to a written assignment, merely because there is a question about the teacher’s motive for giving it. One can imagine where this approach might lead. It is not a happy place.

Supreme Court Strikes Down California Donor Disclosure Rules

The U.S. Supreme Court today in Americans for Prosperity Foundation v. Bonta, (Sup. Ct., July 1,2021), held unconstitutional California's requirement that charitable organizations soliciting funds in the state disclose their major donors to the state Attorney General. In a 6-3 opinion written by Chief Justice Roberts, the Court said in part:

We are left to conclude that the Attorney General’s disclosure requirement imposes a widespread burden on donors’ associational rights. And this burden cannot be justified on the ground that the regime is narrowly tailored to investigating charitable wrongdoing, or that the State’s interest in administrative convenience is sufficiently important. We therefore hold that the up-front collection of Schedule Bs is facially unconstitutional, because it fails exacting scrutiny in “a substantial number of its applications . . . judged in relation to [its] plainly legitimate sweep.

Justice Thomas filed a concurring opinion. Justice Alito, joined by Justice Gorsuch, filed a concurring opinion. Justice Sotomayor, joined by Justices Breyer and Kagan, dissented, saying in part:

Today, the Court holds that reporting and disclosure requirements must be narrowly tailored even if a plaintiff demonstrates no burden at all. The same scrutiny the Court applied when NAACP members in the Jim Crow South did not want to disclose their membership for fear of reprisals and violence now applies equally in the case of donors only too happy to publicize their names across the websites and walls of the organizations they support. 

SCOTUSblog reports on the decision in greater detail.

Firefighter Loses Suit Over Refusal To Be Photographed

In Swartz v. Sylvester, (D MA, June 28, 2021), a Massachusetts federal district court dismissed a damage action brought by a firefighter who was disciplined after he refused, based on his personal Christian religious beliefs, to sit for an in -uniform photograph because it might be used for promotional purposes, and not just for ID tags and cards. The court said in part:

[T]he order was both facially neutral (and neutral in light of the totality of the circumstances) and generally applicable. Therefore, Sylvester must show only a “rational basis” for the policy....

The court also found qualified immunity:

even assuming that Swartz’s rights under the Free Exercise Clause were in fact violated, the legal contours of those rights were not sufficiently clear that a reasonable official would have understood that what he was doing violated them. 

UN Tribunal Sentences 2 For War Crimes In Bosnia

The Guardian reports that the International Criminal Tribunal for the former Yugoslavia today sentenced Jovica Stanišić, former head of Serbia's state security service (DB), and his deputy Franko “Frenki” Simatović who ran DB’s special forces, to 12 years in prison for war crimes.  The court found that they provided support to the Serbian paramilitary units that engaged in ethnic cleansing in the Bosnian town of Bosanski Šamac. According to The Guardian:

The ruling marks the first time senior Serbian officials from Slobodan Milošević’s regime in the 1990s have been found guilty for war crimes committed in Bosnia.

It has been the longest running international war crimes case in history. Stanišić and Simatović were first charged in 2003.

The men have already served 6 years in jail while trials and appeals were under way. This will be deducted from their sentence. They are expected to appeal.

North Carolina Governor Vetoes Race/ Sex/ Down Syndrome Abortion Ban

On June 25, North Carolina Governor Roy Cooper vetoed HB 453 which banned abortions unless the physician has determined that it is not being sought because of the race or sex of the fetus or because the fetus has Down Syndrome. In his veto message (full text), Cooper said: 

This bill gives the government control over what happens and what is said in the exam room between a woman and her doctor at a time she faces one of the most difficult decisions of her life. The bill is unconstitutional and it damages the doctor-patient relationship with an unprecedented governmental intrusion.

Gibraltar Voters Approve Liberalized Abortion Law

Last week, in a referendum, voters in Gibraltar by a vote of 7,656 to 4,520 approved the coming into force of Parliament's Crimes (Amendment) Act of 2019  The Act creates exceptions to the current near-total ban ban on abortions in the country. (Background on proposal.)  With certain restrictions, the law allows abortions in the first 12 weeks of pregnancy where there is risk to the physical or mental health of the mother. Abortion is allowed at any time where there is graver threat to the mother's life or health, or where the fetus has a fatal abnormality. Medical personnel may assert conscience objections to participating in abortions. AP reports on the referendum. [Thanks to Scott Mange for the lead.]

Cert. Denied In Religious Objection To Use of Social Security Number

The U.S. Supreme Court yesterday denied review in Ricks v. Idaho Contractors Board, (Docket No. 19-66, certiorari denied 6/28/2021). (Order List). In the case, an Idaho appeals court dismissed free exercise challenges to the state's requirement that an applicant for a contractor's license furnish his Social Security number.  Federal child support enforcement laws require states to collect Social Security numbers as part of applications for professional licenses if the state wishes to be eligible for certain federal grants.  George Ricks refused to furnish his Social Security number because of his religious belief that Social Security numbers are a form of the Biblical "mark of the beast." (See prior posting.) The Idaho Supreme Court denied a petition for review. Reuters reports on the case and the denial of certiorari, pointing out that the cert. petition asked the Supreme Court to overrule the Smith case.

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Supreme Court Denies Review In Transgender School Bathroom Case

With Justices Thomas and Alito dissenting, the U.S. Supreme Court today denied review in Gloucester County School Board v. Grim, (Docket No. 20-1163, certiorari denied 6/28/2021). (Order list.)  In the case, the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that a Virginia school board violated the equal protection clause and Title IX in refusing to allow a transgender male to use the boys' school restrooms. CNN reports on the denial of certiorari.

Supreme Court Denies Cert. In Ecclesiastical Abstention Case

The U.S. Supreme Court today denied review in North American Mission Board v. McRaney, (Docket No. 20-1158, certiorari denied 6/28/2021). (Order List.) 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.)

Recent Articles of Interest

From SSRN:

• William Leathers, Tandon in Light of Lukumi, and Smith in Light of Them Both: Value Judgments, Levels of Generality, and the General Applicability Standard, (June 9, 2021).
• Marc Spindelman, Bostock's Paradox: Textualism, Legal Justice, and the Constitution, (69 Buffalo Law Review 553 (2021)).

From Elsewhere:

• Symposium: Is This a Christian Nation?, Roger Williams University Law Review, Vol. 26, No. 2 (Spring 2021).

NY Governor Signs Gender Recognition Act

Yesterday, New York Governor Andrew Cuomo signed the Gender Recognition Act (full text of legislation).  The press release announcing the signing summarized the legislation:

The legislation (S.4402-B/A.5465-D) allows New Yorkers to use "X" as a non-binary sex designation on New York State driver's licenses. It also ensures that New Yorkers will be able to have their gender identity on official documents and provides protections to reduce discrimination against nonbinary and transgender New Yorkers by permitting name change and sex designation changes to be sealed more easily. Finally, the legislation will provide New Yorkers the ability to amend their birth certificates and use a designation of mother, father, or parent for the first time.

Random COVID Screening In Parochial Schools Not An Establishment Clause Violation

In In re King v. Board of Education of the City School District of the City of New York, (App. Div., June 24, 2021), a New York appellate court upheld randomized in-school Covid-19 screening tests for students in parochial and private schools. The court said in part:

We reject respondents' contention that section 912 must be construed as permitting only health screening tests which primarily benefit the child, so as to avoid running afoul of the Establishment Clause. Respondents do not explain how randomized in-school Covid-19 screening tests would have "a primary effect that advances religion," the touchstone of the Establishment Clause.

Cockfighting Ban Does Not Violate Establishment Clause

 In Hinds v. State of Texas,(TX App., June 24, 2021), a Texas state appellate court rejected petitioner's argument that the state's ban on cockfighting and on training animals for cockfighting violates the Establishment Clause. Petitioner, who was convicted of violating Texas Penal Code §42.105, according to the court, argued that:

paganism is a “nature worshiping religion” and that “animal rights laws are a clandestinely designed effort to institute laws respecting the establishment of the Pagan religion and animal worship.

EEOC Complaint Charges Stanford University With Anti-Jewish Hostile Work Environment

 As reported by The Forward, a complaint was filed last week with the EEOC (full text and summary of June 15 complaint) on behalf of a psychiatrist and a clinical social worker at Stanford University  Counseling & Psychological Services division charging that a hostile work environment has been created for Jewish employees.  The complaint alleges in part:

... Stanford University ... has permitted the DEI [Diversity, Equity and Inclusion] program to be perverted so that it accomplishes precisely the opposite of its intended aims....

... [T]he CAPS DEI program has maligned and marginalized Jews on the basis of religion, race and ethnic identity by castigating Jews as white, powerful and privileged members of society who contribute to systemic racism and denying and attempting to erase Jewish ancestral identity. In addition, the DEI program has denigrated the concept of Jewish victimhood and deliberately excluded anti-Semitism from the program’s agenda.... 

The CAPS DEI program... relies upon racial and ethnic stereotyping and scapegoating by describing all Jews as white or white-passing and therefore complicit in anti-Black racism. Jewish staff have been pressured to attend the DEI program’s racially segregated “whiteness accountability” affinity group, which was created for “staff who hold privilege via white identity” and “who are white identified, may be newly grappling with or realizing their white identity, or identify as or are perceived as white presenting or passing (aka seen as white by others even though you hold other identities).”

British Family Court Refuses To Order Circumcision Of Muslim Boy

In M v. F, (EWHC (Fam), June 14, 2021), a British High Court, Family Division judge refused the request by Muslim parents for an order requiring their 21-month old son's guardians to have the boy circumcised.   Because of prior domestic abuse, the boy had been removed at birth from the parents and placed with his maternal aunt and uncle who agreed to respect the child's Muslim heritage. Both the guardians and local welfare officials contend that no decision on circumcision should be made until the boy is older. The court said in part:

I accept that both parents, practising Muslims, earnestly wish the circumcision procedure to take place in order for P to connect with his Muslim heritage. Their views are of considerable importance, and I attach significant weight to them. That said, circumcision alone is not likely to establish or enhance P's sense of cultural or religious identity; this would be best achieved at his age by regular contact with his parents who can, in the best way they consider possible, help him to understand his identity and the faith into which he has been born. When he is older, they can be on hand to help him to reach a decision on whether to be circumcised. My decision has, to some extent, been influenced by the fact that presently neither parent chooses to see P, and neither parent has (contrary to their offer to do so) provided P with age-appropriate books and/or learning materials about Islam....

I have concluded that the decision to circumcise P should be deferred until he is able to make his own choice, once he has the maturity and insight to appreciate the consequences and longer-term effects of the decision which he reaches. I encourage the parents to resume their contact with P, so that not just his Muslim heritage, but also his experience of his wider family and origins, can be better understood and appreciated by him.

Law & Religion UK discusses the decision further.

Indian Court Orders Wide-Ranging Protections For LGBTIA+ Community

In an unusual 107-page opinion earlier this month, a Justice of the Madras High Court in India handed down a wide ranging series of directives to be undertaken by various government agencies to protect the safety of the LGBTQIA+ community, and to eliminate prejudice against them.  In Sushma v. Commissioner of Police, (Madras High Ct., June 7, 2021), Justice Venkatesh set out at length the process he went through to educate himself on the challenges faced by the LGBTQIA+ community. The decision says in part:

[I]t is no longer open to doubt that Article 21 of the Constitution protects and guarantees to all individuals, complete autonomy over the most intimate decisions to their personal life, including their choice of partners. Such choices are protected by Article 21 of the Constitution as the right to life and liberty encompasses the right to sexual autonomy and freedom of expression. That apart, sexual autonomy is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution. LGBTQIA+ persons, like cis persons, are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof.

The case was brought originally by a lesbian couple seeking protection from their parents, and police with whom their parents had filed missing person complaints, interfering with their relationship. Jurist also reports on the decision.

Louisiana Governor Vetoes Ban On Transgender Women Playing On Girls' Sports Teams

The Louisiana governor's office announced yesterday that Gov. John Bel Edwards has vetoed SB156, the Fairness In Women's Sports Act (full text), saying in part:

The bill ... sought to prevent transgender girls and women from participating on athletic teams or in sporting events designated for girls or women at elementary, secondary and postsecondary schools. Gov. Edwards issued the following statement:

As I have said repeatedly when asked about this bill, discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana. Even the author of the bill acknowledged throughout the legislative session that there wasn’t a single case where this was an issue.

Louisiana Illuminator reports on the Governor's action.

Israel's Supreme Court OK's Non-Profit Tax Status For Messianic Congregation

 All Israel News reports that a 3-judge panel of Israel's Supreme Court, sitting as the High Court of Justice, last week ordered the Knesset Finance Committee to grant non-profit status to a Messianic Jewish organization, Yachad, which operates a Messianic Jewish congregation.  Last year, the Finance Committee had rejected non-profit status for the organization. The court said in part:

The decision of the Finance Committee was based on an incorrect assumption, that they had the authority to take into consideration that a nonprofit is engaged in ‘controversial’ activity. Based on the tax authority’s examination, the organization’s missionary activity is not bound to illegal activity. The representatives of the Knesset also confirmed that the decision was value-based, that it is improper to finance a religious organization seeking to convert Jews, even if their activity is legal. … This confirms that the committee overreached in its authority.

New Texas Law Protects Religious Organizations During Future Emergencies

On June 18, Texas Governor Greg Abbott signed HB 525 (full text) which prohibits the state from restricting activities of religious organizations during a state of emergency. It provides in part:

(a) Notwithstanding any other law, a religious organization is an essential business at all times in this state, including during a declared state of disaster, and the organization ’s religious and other related activities are essential activities even if the activities are not listed as essential in an order issued during the disaster.

(b) A governmental entity may not: (1)At any time, including during a declared state of disaster, prohibit a religious organization from engaging in religious and other related activities or continuing to operate in the discharge of the organization ’s foundational faith-based mission and purpose; or

(2) during a declared state of disaster order a religious organization to close or otherwise alter the organization ’s purposes or activities.

The Texan reports on the new law.

Suit Challenges "In God We Trust" On Mississippi License Plates

Suit was filed yesterday in a Mississippi federal district court by atheist and secular humanist plaintiffs challenging the constitutionality of Mississippi including the state seal-- which carries the motto "In God We Trust" -- on its standard license plate. The complaint (full text) in Griggs v. Graham, (SD MI, filed 6/22/2021) alleges violations of both the free speech and free exercise clauses, saying in part:

The Standard Tag ... sends an ideological message endorsed by ... the State of Mississippi.... The Defendant enforces Mississippi statutes and maintains regulations, policies, practices, and customs that require a car owner to display license tags delivering the State of Mississippi’s chosen ideological message....

The statutes, rules, policies, practices, and customs enforced by Defendant ... are not neutral. Not only is “IN GOD WE TRUST” an expressly religious message, but the public statements of Mississippi officials ... demonstrate that hostility toward the Plaintiffs and other Mississippi car owners who lack religious beliefs was a motivation for selecting the current Standard Tag design.

WLOX reports on the lawsuit.

Cert. Filed In "Christian Flag" Case

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals upheld Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the petition.

Wisconsin Courts End COVID Suspension of Prison Religious Services

 In Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., June 21, 2021), a Wisconsin trial court issued a Provisional Writ of Mandamus ordering the Wisconsin prison system to allow Catholic clergy the opportunity, at least once a week, to conduct in-person religious services in state correctional institutions. Access for clergy is mandated by Wis. Stat. 301.33(1). The state had suspended visits beginning in March 2020 to minimize the spread of COVID. Wisconsin Institute for Law & Liberty has additional information on the case. Wisconsin Journal Sentinel reports that the Department of Corrections has extended the order to any religious denomination that wishes to offer in-person services.

EEOC Sues Over Employer's Failure To Accommodate Religious Objection To Finger Printing

 The EEOC announced last week that it has filed suit in a Minnesota federal district court against AscensionPoint Recovery Services alleging religious discrimination:

APRS had requested that its employees be finger-printed as a result of a background check requirement of one of its clients. Shortly after the Christian employee informed APRS that having his fingerprints captured was contrary to his religious practices, APRS fired him.... APRS did so without asking the client whether an exemption was available as a religious accommodation, and despite the fact that alternatives to fingerprinting are available.

Recent Articles of Interest

 From SSRN:

• Dhruv Patel, At the Crossroads of Law, Faith, Religion and History: A Study of the Supreme Court of India’s Judgment in the Ram Janmabhoomi – Babri Masjid Case (January 26, 2021).
• Michael A. Helfand, What Is Jewish Law? A Conceptual View from U.S. Courts, (Oxford Legal Handbook and Jewish Law, 2021).
• Khaled Beydoun, On Sacred Land, (Minnesota Law Review, Vol. 105, 2021).
• Andrew M. Koppelman, In Praise of Evil Thoughts (June 15, 2021). 37 Social Philosophy & Policy 52 (2020).
• Vincent Chetail, Moving towards an Integrated Approach of Refugee Law and Human Rights Law, (The Oxford Handbook of International Refugee Law, C. Costello, M. Foster & J. McAdam (eds), OUP, 2021).
• Zachary D. Kaufman, Testimony to the Belgian Parliament regarding the Islamic State's Genocide Against the Yezidi, (Belgian Parliament; Testimony Regarding Draft Resolution Document 55 1766/001; 2021).

From SmartCILP:

• Michael P. Moreland, Book Review. Law, Love, and Freedom: From the Sacred to the Secular, by Joshua Neoh, 65 American Journal of Jurisprudence 203-208 (2020).
• Hala Khoury-Bisharat & Rinat Kitai-Sangero, The Silence of Jesus and Its Significance for the Accused, 55 Tulsa Law Review 443-468 (2020).

VA Will Offer Gender Confirmation Surgery

AP reports that at a PRIDE event in Orlando on Saturday, Veterans Affairs Secretary Denis McDonough announced that the VA is moving to offer gender confirmation surgery to transgender veterans:

McDonough said in prepared remarks that the move was “the right thing to do,” and that it was part of an effort to overcome a “dark history” of discrimination against LGBTQ service members. The move is just the first step in what’s likely to be a years-long federal rulemaking process to expand VA health benefits to cover the surgery, but McDonough said the VA will use the time to “develop capacity to meet the surgical needs” of transgender veterans.

City's Use Permit Requirement Violated State Free Exercise Law

In  Henry v. City of Somerton, (D AZ, June 17, 2021), an Arizona federal district court held that an Arizona city violated the state's Free Exercise of Religion Act when, under a now-amended ordinance, it required a church to obtain a conditional use permit to use rented space for religious services. The court held in part:

The Court finds the unamended Ordinance’s CUP requirement treated the Iglesia on less than equal terms than nonreligious assemblies, such as fraternal organizations.

Because there is no genuine dispute of material facts, the Court will grant summary judgment on the FERA claim. ...

Various other claims against the city were dismissed, including plaintiffs' prior restraint claim:

... [W]ithout even having tried to apply for a CUP, any injury Plaintiffs claim that resulted from the CUP evaluation process is purely conjectural. Plaintiffs cannot claim they were deterred by the CUP evaluation process because, by all accounts, they have been conducting services uninterrupted since the Iglesia opened.