5th Circuit En Banc Upholds Texas "Dismemberment Abortion" Ban

In Whole Woman's Health v. Paxton, (5th Cir., Aug. 18, 2021), the U.S. 5th Circuit Court of Appeals, sitting en banc, by a vote of 9-5 (with 3 judges recused), upheld a Texas law enacted in 2017 that bans abortions performed through the standard dilation and evacuation procedure-- a procedure that the Texas law terms "dismemberment abortions." The majority opinion joined by 7 of the 9 judges said in part:

SB8 refers to the prohibited method as "live dismemberment" because doctors use forceps to separate, terminate, and remove the fetus. SB8 requires doctors to use alternative fetal-death methods. The district court declared SB8 facially unconstitutional. It held that SB8 imposes an undue burden on a large fraction of women, primarily because it determined that SB8 amounted to a ban on all D&E abortions.... Instead, the record shows that doctors can safely perform D&Es and comply with SB8 using methods that are already in widespread use.....

The safety, efficacy, and availability of suction to achieve fetal death during abortions in weeks 15 and 16 combined with the safety, efficacy, and availability of digoxin to do the same in weeks 18–22 mean that the plaintiffs have utterly failed to carry their heavy burden of showing that SB8 imposes an undue burden on a large fraction of women in the relevant circumstances.

Chief Judge Owen and Judge Ho each filed a concurring opinion. Judge Dennis filed a dissenting opinion that was joined by Judges Stewart and Graves, saying in part:

Today, in a Sisyphean return to form, our court upholds a Texas law that, under the guise of regulation, makes it a felony to perform the most common and safe abortion procedure employed during the second trimester. In an opinion that fortunately lacks fully binding precedential effect, the en banc plurality disregards the two major lessons of June Medical. First, it ignores on-point Supreme Court precedent in multiple ways....  [T]he Supreme Court has already decided this exact case, holding that a Nebraska law was unconstitutional because it could be interpreted to be the sort of ban that the Texas statute openly embodies.... Second, ... the en banc plurality fails to defer to the district court’s well-reasoned and well-supported factual findings regarding the burdens and benefits associated with the Texas law... 

Judge Higginson filed a separate dissenting opinion, joined by Judge Costa. Texas Tribune reports on the decision.

Challenge To Superseded COVID Order Dismissed As Moot

In Solid Rock Baptist Church v. Murphy, (D NJ, Aug. 16, 2021), a New Jersey federal district court dismissed as moot a challenge to a now superseded COVID-19 executive order by the governor of New Jersey limiting the number of people who could attend an indoor religious service. The court also held it will abstain under the Younger doctrine.

Amended Complaint Allowed In Suit Over Transcendental Meditation In Schools

In Separation of Hinduism From Our Schools v. Chicago Public Schools, (ND IL, Aug. 17, 2021), an Illinois federal district court granted in part plaintiffs' motion to amend their complaint in a suit challenging Chicago Public Schools' "Quiet Time" program which was led by a Transcendental Meditation instructor. In a previous opinion, the court dismissed claims against a private foundation and the University of Chicago which helped implement the program. (See prior posting.) Now the court holds that plaintiffs have sufficiently alleged that the private foundation and the University were joint participants with the state to be state actors who can violate constitutional rights. However the court accepts the University's defense that its participation was not part of an official policy or custom-- a necessary component of liability under 42 USC §1983. The court also held that the complaint adequately states claims against the University, the foundation and the public schools under the Illinois Religious Freedom Restoration Act.

Court Sorts Out Standing Issues And Substantive Challenges To Vermont Town Tuition Program

In Valente v. French, (D VT, Aug. 16, 2021), students and their parents sued various school agencies and districts challenging their policy of refusing to pay tuition to religious schools under Vermont's Town Tuition Program. Under that program, school districts that do not operate their own high schools pay tuition for students to attend other schools. However, sectarian schools are excluded unless there are adequate safeguards against the use of the tuition funds for religious worship. The court held that plaintiffs have standing to sue various state agencies, having alleged that they have not taken appropriate steps to prevent school districts from discriminating against religion in the Town Tuition Program. However the court found no standing to sue supervisory unions made up of local school boards which have no responsibility for the tuition payments.

The court went on to hold that plaintiffs have adequately alleged an equal protection claim and (except for one plaintiff) a free exercise claim against the state defendants, but have not adequately alleged an Establishment Clause or substantive due process claim. Eleventh Amendment defenses were also rejected.

In a companion case, A.H. v. French, (D VT, Aug. 16, 2021), students, parents and the Catholic Diocese sue challenging the refusal to allow Rice Memorial High School, a Catholic high school, to participate in the Town Tuition Program. The court held that the parents have standing to sue the state Agency of Education and its secretary, saying that plaintiffs allege these defendants set policy and directed school districts to exclude religious schools and their students. It also rejected 11th Amendment defenses by the head of the Agency. However the court held that the Diocese of Burlington lacks standing to assert the interests of parents who wish to send their children to Rice.

Suit Challenges Arizona's New Abortion Law

Suit was filed in an Arizona federal district court yesterday challenging two provisions in an abortion law enacted earlier this year. At issue are (1) a provision (the Reason Ban) which bans abortion whenever the providing physician knows that the abortion is due to “a genetic abnormality” and (2) a provision (the Personhood Provision) which requires Arizona laws to be interpreted to give all fertilized eggs, embryos, and fetuses the same rights as other persons. The complaint (full text) in Isaacson v. Brnovich, (D AZ, filed 8/17/2021), alleges in part:

Any reading of [the Reason] ban violates the Due Process Clause of the Fourteenth Amendment and decades of binding precedent confirming that “a State may not prohibit any woman from making the ultimate decision to terminate her pregnancy before viability.”...

Because the Personhood Provision fails to provide adequate notice of prohibited conduct and invites arbitrary and discriminatory enforcement..., it is unconstitutionally vague.

The complaint also alleges that the accomplice liability provisions infringe on physicians' speech rights. Center for Reproductive rights issued a press release announcing the filing of the lawsuit.

New York Child Victims Look-Back Period Ends

As reported by the New York City Patch, the two-year look-back period that allowed otherwise untimely suits to be filed under New York's Child Victims Act expired last Friday, Aug. 13. As of Aug. 9, some 9,241 cases had been filed during the look-back window. (Child USA Report).

Recent Articles of Interest

From SSRN:

• Cameron M. Fathauer, Freed Unto Liberty: A Call to Re-Treasure American Liberty, (February 4, 2020).
• Hershey H. Friedman, The Talmudic Principle of Going Beyond the Requirements of the Law: The Cornerstone of Ethics, (July 13, 2021).
• Nadia N. Sawicki, Tort Law Implications of Compelled Physician Speech, (Indiana Law Journal, Forthcoming).
• Cameron M. Fathauer, Freed Unto Liberty: A Call to Re-Treasure American Liberty (February 4, 2020).
• Intisar A. Rabb, Islamic Legal Canons as Memes, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Intisar A. Rabb, Methods and Meaning in Islamic Law: Introduction, (Journal of Islamic Law, Vol. 2, No. 1, 2021).
• Didin Samsudin & Fajar Kusnadi Kusumah Putra, Influence of Experiential Marketing on Customer Loyalty in Shariah-Compliant Hotel, (Journal of Indonesian Tourism, Hospitality and Recreation, 3(2), p.117-129 (2020)).

Court Allows Equal Protection Challenge To Zoning Law To Proceed

In Orthodox Jewish Coalition of Chestnut Ridge v. Village of Chestnut Ridge New York, (SD NY, Aug. 13, 2021), a New York federal district court granted plaintiff's motion to reconsider its March 31, 2021 decision that dismissed an equal protection challenge to the Village's former zoning law. The court now held that Equal Protection and state law claims by three Orthodox synagogues and three individual plaintiffs may proceed, saying in part:

Plaintiffs argue that “the Court erred in holding that [Plaintiffs] were required to allege that . . . facially discriminatory laws were enacted with a discriminatory purpose.” ... They are correct.

Mississippi Supreme Court Rejects Claims By Pastor's Former Wife Against His Church On Unusual Facts

In Woodard v. Miller, (MS Sup. Ct., Aug. 12, 2021), the Mississippi Supreme Court applied the ecclesiastical abstention doctrine in an unusual context.  Plaintiff Kim Miller married Andrew Johnson when he was a seminary student studying to be a United Methodist Church minister. Church officials encouraged Miller to give up her higher education plans to serve as a minister's wife, and told her that the church would provide for her needs. After more than 20 years of marriage, Miller filed for divorce. She took this step after Johnson confessed to her that he was gay, had contracted HIV from an extramarital affair, and had infected Miller.

Miller sued her ex-husband, the United Methodist Church Conference and a fellow-pastor asserting a variety of claims. She asserted that "had the conference and the fellow minister followed United Methodist policy and procedure, they would have discovered Johnson’s behavior and remedied it or warned Miller before she contracted HIV."

The court dismissed plaintiff's claims against the church, saying in part:

[U]nder the First Amendment, for Miller’s claim to proceed against MUMC, the claimed assumed duty cannot be religious or ecclesiastical in nature.... And we are hard-pressed to see how Miller’s claim would hold up if it were against a non-religious employer. Though Miller personally interpreted MUMC’s promise to provide for her and her family if she gave up her own career goals as both an assurance of sufficient financial remuneration and a guarantee against her husband committing adultery, such an interpretation would be considered wholly unreasonable if the promise was being made by, say, a law firm, a hospital, or a technology company. In other words, Miller interpreted the assurances of MUMC ministers as including guaranteeing the success of her marriage and family life precisely because her fiancé was going into church ministry. Thus, her claim fails because the religious nature of his employer cannot be the basis for recognizing a legal duty....

The court dismissed Miller's claim against the fellow-pastor because: "a fiduciary duty cannot arise merely from a minister-church member relationship."

Finally, the court, over the dissent of two judges allowed plaintiff to move ahead on her claims against her former husband, rejecting his defense that the claims against him were released as part of the divorce settlement. The majority held that Johnson had waived this defense.

Court Dismisses Challenge To Contraceptive Mandate Exemption for Notre Dame

In Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Aug. 12, 2021), an Indiana federal district court dismissed a suit challenging rules, as well as a settlement agreement, exempting Notre Dame University from the contraceptive coverage mandate of the Affordable Care Act. The court said in part:

With the Rules having been upheld by the Supreme Court, I can’t really say that the Settlement Agreement itself is causing injury to the Plaintiffs because the same result the Settlement Agreement provides Notre Dame (exempting it from the contraceptive coverage mandate) is equally provided by the Rules (the validity of which were upheld). The challenge to the Settlement Agreement “is not ripe for adjudication [because] it rests upon contingent future events that may not occur” - i.e., the speculative possibility that the exemption might be invalidated at some point in the future.

The court, relying on the Supreme Court's Little Sisters of the Poor decision and a Massachusetts federal district court case, also held that the rules creating religious exemptions from the contraceptive coverage mandate do not violate the Establishment Clause.

Fraud Claim Against Catholic Diocese Dismissed Under Ecclesiastical Abstention Doctrine

In Doe v. Roman Catholic Diocese of Dallas, (TX App, Aug. 11, 2021), a Texas state appellate court held that the ecclesiastical abstention doctrine requires dismissal of a suit alleging that a Catholic diocese committed fraud when it failed to follow its own internal policies for responding to clergy sex-abuse claims after plaintiff reported that he had been sexually abused by a Diocesan priest. The court said in part:

[A] court would have to evaluate whether ... the Dallas Diocese implemented its policy under the canonical meanings of "minor," "sexual abuse," and "vulnerable adult." This would necessitate a secular investigation into the Dallas Diocese's understanding of those terms.... Such an inquiry would cause a court to evaluate whether the Dallas Diocese properly applied canon law and "interlineate its own views" of canonical terms....

Furthermore, in the context of a religious organization's choices in investigating and regulating its formal leaders and people ordained for religious duties, "any investigation would necessarily put to question the internal decision making of a church judicatory body."...

New Hampshire Enacts Law To Protect Churches In Future Emergencies

On Tuesday, New Hampshire Governor Chris Sununu signed HB542, the New Hampshire Religious Liberty Act (full text). The law provides in part:

[D]uring a state of emergency, the state government shall permit a religious organization to continue operating and to engage in religious services to the same or greater extent that other organizations or businesses that provide essential services that are necessary and vital to the health and welfare of the public are permitted to operate.

Under the statute, the state may still require religious organizations to comply with neutral health, safety, or occupancy requirements, but must meet a strict scrutiny test if the requirement imposes a substantial burden on a religious service.

AP reports on the new law, which takes effect in 60 days.

Ministerial Exception Requires Dismissal Of Title VII Claims By Catholic School Guidance Counselor

In Roman Catholic Archdiocese of Indianapolis, Indiana v. Roncalli High School, Inc., (SD IN, Aug. 11, 2021), an Indiana federal district court  held that the ministerial exception doctrine bars Title VII retaliation, discrimination and hostile work environment claims as well as state law claims of interference with contractual and employment relationships in a suit brought by the former Co-Director of Guidance at a private Catholic high school. The school refused to renew its contract with Lynn Starkey, who had been employed by the school for nearly forty years, after the school learned of Starkey's same-sex marriage. The court said in part:

To be sure, the court does not mean to say that divergent understandings of the religious nature of an employee's role should always be resolved in the religious employer's favor. For example, it would be difficult to credit a religious employer's claim that a custodian or school bus driver qualifies as a minister simply because the employer said so.... But this case concerns the Co-Director of Guidance ... [who] performed "vital religious duties" at Roncalli.... Employees in that position met with every student throughout the year and discussed some of the most sensitive issues in a young person's life.... Roncalli expressly entrusted Starkey with the responsibility of communicating the Catholic faith to students and fostering spiritual growth.

Becket issued a press release announcing the decision.

10th Circuit: Muslim Inmate Can Move Ahead On Claim That He Was Forced To Shave Beard

In Ashaheed v. Currington, (10th Cir., Aug. 10, 2021), the U.S. 10th Circuit Court of Appeals reversed a Colorado federal district court's dismissal of a Muslim inmate's free exercise and equal protection claims. The Colorado corrections center requires inmates to shave their beards at intake but provides an exemption for inmates who wear beards for religious reasons. Plaintiff says he repeatedly asserted this exemption, but that Defendant-- motivated by anti-Muslim animus-- forced him to shave.

The court rejected Defendant's qualified immunity defense, saying: "The constitutional violation alleged here was clear beyond debate." The court concluded in part:

Sergeant Currington’s refusal to follow the Center’s beard-shaving policy and grant Mr. Ashaheed a religious exemption, when he previously accommodated the religious needs of non-Muslims under the Center’s personal-effects policy, shows that he burdened Mr. Ashaheed’s religion in a discriminatory and nonneutral manner.

10th Circuit: Jail Chaplain Succeeds On Qualified Immunity Grounds In Suit Over Religious Diet

In Ralston v. Cannon, (10th Cir., Aug. 9, 2021), the U.S. 10th Circuit Court of Appeals held that a suit by a Messianic Jewish inmate should be dismissed on qualified immunity grounds. The suit challenged jail Chaplain Hosea Cannon's denial of plaintiff's request for a kosher diet. The court said in part:

When Mr. Cannon denied the kosher diet request, it was not clearly established that his conduct violated the Free Exercise Clause of the First Amendment. More specifically, the law was not clearly established that, even if Mr. Cannon did not act with a discriminatory purpose, his denial of a kosher diet could effect a violation of Mr. Ralston’s free-exercise rights.

Court Enjoins Requirement That Christian Doctors Perform Gender Transition Procedures And Abortions

In Franciscan Alliance, Inc. v. Becerra, (ND TX, Aug. 9, 2021), on remand from the 5th Circuit, a Texas federal district court permanently enjoined enforcing the anti-discrimination provisions of the Affordable Care Act or implementing regulations against Christian health care providers and health plans in a manner that would require them to perform or provide insurance coverage for gender-transition procedures or abortions. The court said in part:

No party disputes that the current [Affordable Care Act] Section 1557 regulatory scheme threatens to burden Christian Plaintiffs’ religious exercise ... by placing substantial pressure on Christian Plaintiffs, in the form of fines and civil liability, to perform and provide insurance coverage for gender-transition procedures and abortions....

In reaching its conclusion, the court rejected mootness and other justiciability arguments that stemmed from shifting regulations while the case wound its way through the courts. 

In Pakistan, 8-Year Old Boy Is Charged With Blaspehmy

The Guardian  today reports that in the Punjab province of Pakistan, an 8-year old Hindu boy has become the youngest person ever charged in Pakistan with blasphemy. He is accused of intentionally urinating on a carpet in a madrassa library. Last week, after he was released from custody on bail, Muslims attacked a Hindu temple in Rahim Yar Khan. The boy is now being held in protective custody by police, and his family is in hiding.

Recent Articles of Interest

From SSRN:

• Daniel Judge, Catholic Education and the Formation of Conscience, (96 Notre Dame Law Review Reflection 248 (2021).
• Kenny Mok & Eric A. Posner, Constitutional Challenges to Public Health Orders in Federal Courts during the COVID-19 Pandemic  (August 1, 2021).
• James G. Hodge, et. al., Vaccinating Urban Populations in Response to COVID-19: Legal Challenges and Options, (Fordham Urban Law Journal, Vol. 49, No. 1, 2021).

From SmartCILP:

• Mark Satta, Unclear Hostility: Supreme Court Discussions of "Hostility to Religion" from Barnette to American Legion, 68 Buffalo Law Review 641-708 (2020).
• Sergio Alberto Gramitto Ricci, Archeology, Language, and Nature of Business Corporations, 89 Mississippi Law Journal 43-84 (2019).

10th Circuit: Parolee May Move Ahead In Suit Challenging His Placement In Christian Housing

In Janny v. Gamez, (10th Cir., Aug. 6, 2021), the U.S. 10th Circuit Court of Appeals held that a parolee, who is an atheist, should be able to move ahead with his Free Exercise and Establishment Clause claims growing out of a requirement that in order to stay out of jail he stay at a Christian homeless shelter and participate in its religious programming.  The court said in part:

[W]hile the Lemon test remains a central framework for Establishment Clause challenges, it is certainly not the exclusive one.... And claims of religious coercion, like the one presented here, are among those that Lemon is ill suited to resolve. Lee [v. Weisman] teaches that a simpler, common-sense test should apply to such allegations: whether the government “coerce[d] anyone to support or participate in religion or its exercise.” ...

Mr. Janny argues that Officer Gamez’s written parole directive to abide by the Mission’s “house rules as established,”... shows the State required him to participate in the Mission’s religious programming.... These facts establish a genuine dispute as to whether the State, through Officer Gamez, acted not just to place Mr. Janny in the Mission, but to place him specifically into the Christian-based Program....

The record [also] allows Mr. Janny to reach the jury on his claim that Officer Gamez burdened his right to free exercise by allegedly presenting him with the coercive choice of obeying the Program’s religious rules or returning to jail.

The court also rejected defendants' qualified immunity defenses. 

Judge Carson dissented in part, contending that the director of the Mission should not be liable as a state actor.

ACLU issued a press release announcing the decision.

White House Announces Liaison To Jewish Community

The White House announced yesterday that Chanan Weissman will serve as the Biden-Harris Administration's liaison to the Jewish community. He served in the same role in the Obama administration.

6th Circuit En Banc Upholds Tennessee Abortion Waiting Period

In a 9-7 en banc decision in Bristol Regional Women's Center, P.C. v. Slatery, (6th Cir., Aug. 5, 2021), the U.S. 6th Circuit Court of Appeals upheld Tennessee's 48-hour waiting period for abortions. Judge Thapar's majority opinion concluded:

Tennessee’s 48-hour abortion waiting period is facially constitutional. The law is supported by a rational basis, and it is not a substantial obstacle to abortion for a large fraction of women seeking previability abortions in Tennessee. And the plaintiffs failed to present any specific evidence to sustain their as-applied challenge. We thus reverse the district court’s decision and remand for entry of judgment in Tennessee’s favor on these claims.

Two judges joined in a concurring opinion.  The primary dissenting opinion was written by Judge Moore, who said in part:

Rather than plunge into the vast pool of evidence compiled in the district court ... the majority dips a toe and recoils. Speaking vaguely of “inconveniences,”... “logistical challenges,” ... and “increased costs,”... but shirking the specifics that the district court explored in exhaustive depth, the majority improvises a sanitized account of the record free of uncomfortable realities. In whitewashing the record, the majority has crystalized what has been clear at least since it agreed to hear this case initially en banc without a principled basis: this case was dead on arrival.... An honest look at the record compels but one conclusion: a law that peddles in stigma, forces women into unnecessary and invasive surgical procedures, and forces low-income women to sacrifice basic necessities for themselves and their families in order to obtain an abortion is nothing if not an undue burden.

Judge Gibbons also filed a dissenting opinion. The Hill reports on the decision. 

DOJ Reports On 15 Years Of Hate Crime Prosecutions

Last month (July 8), the Department of Justice Bureau of Justice Statistics issued a 15-page report titled Federal Hate Crime Prosecutions, 2005–19 (full text). A press release summarizing the report said in part:

U.S. attorneys declined to prosecute 82% of suspects, prosecuted 17% and disposed of 1% for prosecution by U.S. magistrates. Insufficient evidence was the most common reason hate crime matters were declined for prosecution.

Among the 310 defendants adjudicated in U.S. district court for hate crime violations during 2005-19, more than 9 in 10 defendants (284) were convicted. About 85% (240) of those convicted of a hate crime were sentenced to prison, with an average term of over 7.5 years. About 14% (39) were sentenced to probation only, and 1% (4) received a suspended sentence. Forty percent of the convictions for hate crimes during 2005-19 occurred in federal judicial districts in six states: New York (30), California (26), Texas (19), Arkansas (15), Tennessee (13) and Pennsylvania (12).

This week, the Los Angeles Blade reported on the data.

Transgender Students Sue Over Tennessee Public School Bathroom Law

Suit was filed this week in a Tennessee federal district court challenging the Tennessee Accommodations for All Children Act. The suit was brought on behalf of two transgender students. The complaint (full text) in A.S. v. Lee, (MD TN, filed 8/3/2021) alleges that the effect of the law is to force transgender students in public schools to either use a multi-occupancy bathroom inconsistent with their gender identity or ask for a "reasonable accommodation" such as use of a single-occupancy or a teacher's restroom or changing room. Use of a multi-occupancy restroom or changing room consistent with their gender identity is not an option. The complaint charges that the law violates the equal protection clause and Title IX. CNN reports on the lawsuit.

For First Time, Orthodox Rabbi Appointed To An Australian State Supreme Court

 ABC News and Hamodia report that for the first time, an Orthodox rabbi has been appointed to a Supreme Court of a state in Australia. Rabbi Marcus Solomon takes office today as the newest justice of the Supreme Court of the state of Western Australia. Rabbi Solomon, who has particular expertise in complex commercial matters, received his law degree in 1991. In 2006 he founded Perth Yeshivah, Western Australia's first post-secondary institution of Jewish studies and Talmudic law.

Challenge To Virginia's COVID Restrictions On Worship Services Dismissed As Moot

 In Tolle v. Northam, (ED VA, July 29, 2021), a Virginia federal district court dismissed as moot a lay minister's challenge to the Virginia governor's now-terminated COVID-19 orders.  Those orders had caused plaintiff's church to stop offering public worship services and otherwise limited gatherings for religious worship.

Protective Order Did Not Violate Ex-Husband's Free Exercise Rights

 In Kaur v. Singh, (PA Super., Aug. 2, 2021), a Pennsylvania appellate court upheld a Protection From Abuse Order that excludes plaintiff's former husband from attending the Nazareth Temple on Sundays when his former wife is present. The court said in part:

[T]he Final PFA Order did not substantially burden Appellant’s right to practice his religion....The Order did not ban Appellant from practicing his religion, nor compel him to perform actions against his religion. Appellant can attend services at several other temples in the area on Sunday, attend services at Nazareth Temple every day but Sunday, and attend services at Nazareth Temple on Sunday if Ms. Kaur is not present. As the trial court explained, “[t]he record established that all of the Sikh temples in the area have essentially the same services”....

Additionally ... [s]ince Appellant’s purpose of attending the services at Nazareth Temple is to harass Ms. Kaur as opposed to practicing his religion, the Order arguably does not impact Appellant’s ability to practice his religion at all.

Supreme Court Justice Denies Church's Application For Injunction Pending Cert. Application

Yesterday, U.S. Supreme Court Justice Stephen Breyer in Calvary Chapel of Bangor v. Mills, denied  an application (full text) by a Maine church for injunctive relief pending disposition of its petition for certiorari. The church sought to prevent Maine's governor from reinstating COVID-related restrictions on worship services while exempting other activities. AP reports on the denial.

Cert. Filed In Case On Washington State's Religious Exemption From Anti-Discrimination Law

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Seattle's Union Gospel Mission v. Woods, (cert. filed 8/2/2020). In the case, Washington state's Supreme Court held that, as applied, the religious and non-profit exemption to the state's anti-discrimination law may be unconstitutional. Plaintiff in the case was denied employment as a staff attorney by a Christian legal aid program for the homeless because he was in a same-sex relationship. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Cert. Filed In Dispute Over Ministerial Exception's Applicability To Faculty Member

A petition for certiorari (full text) was filed yesterday with the U.S. Supreme Court in Gordon College v. DeWeese-Boyd, (cert. filed 8/2/2021). In the case, 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. The court concluded that the faculty member was not a ministerial employee. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Supreme Court Review Sought In Dispute Over Virginia Property Tax Exemption

A petition for certorari (full text) was filed with the U.S. Supreme Court yesterday in Trustees of the New Life In Christ Church v. City of Fredericksburg, Virginia, (cert. filed 8/2/2021).  The decisions below are an unreported decision from a Virginia state trial court and a Virginia Supreme Court order refusing to grant review. The petition for review filed with the U.S. Supreme Court describes the case:

New Life In Christ Church claimed the tax exemption for a property occupied by Josh and Anacari Storms. The Church explained that the Stormses are “ministers” under the Presbyterian Church in America’s Book of Church Order because they were hired to teach and spread the faith to college students in the community. The City of Fredericksburg agreed that eligibility for the exemption turned on whether the Presbyterian Church in America considered the Stormses to be ministers, but it denied the exemption because, under its reading of the Book of Church Order, only ordained persons with specific duties are ministers of that church.

One of the issues presented is whether a civil court may substitute its own interpretation of church doctrine for that of church officials. First Liberty Institute issued a press release announcing the filing of the cert. petition.

8th Circuit: Challenge To Church Capacity Limits Dismissed On Mootness and Standing Grounds

 In Hawse v. Page, (8th Cir., July 30, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, dismissed on standing and mootness grounds challenges to St. Louis County, Missouri's now-superseded COVID-related limit on the number of persons who could attend church services. The majority said in part:

Whether or not the churches were formally closed in April 2020, the complaint is bereft of an allegation that but for the Order, the churches attended  by the appellants would have allowed groups of ten or more persons to gather in the early weeks of the pandemic.

Judge Stras filed a dissenting opinion. 

Recent Articles of Interest

 From SSRN:

• Douglas Laycock & Thomas Charles Berg, Protecting Free Exercise Under Smith and After Smith, (Cato Supreme Court Review 2020-21 (forthcoming)).
• Perry Dane, ‘My Name Is Great Among the Nations’ an Essay on David VanDrunen, Politics After Christendom: Political Theology in a Fractured World, (Journal of Law and Religion, Forthcoming).
• Robert Kahn, 'My Face, My Choice?' — Mask Mandates, Bans, and Burqas in the Covid Age, (14 New York University Journal of Law and Liberty 2 (2021)).
• Jeffrey M. Lipshaw, Between Rights and Rites: The Ironies of Crisis and Contract, (Law and Contemporary Problems, Forthcoming).
• Michael S. Paulsen, Abortion as an Instrument of Eugenics,(134 Harvard Law Review Forum 415 (2021)).
• Douglas NeJaime, Biology and Illegitimacy, (SMU Law Review, Vol. 74, No. 2, 2021).
• Tariq Javed, Indian Citizenship Act: Reality and Usage, (January 15, 2020).

Most Misrepresentation Claims Against LDS Church Dismissed; RICO Claim Survives

In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, July 28, 2021), a Utah federal district court dismissed most of the claims in an amended complaint by a former LDS Church member alleging that several basic teachings of the Church involve misrepresentations. The court previously dismissed plaintiff's original complaint. (See prior posting.) In passing on her amended complaint, the court said in part:

Gaddy's new factual allegations relating to the locations of events described in the Book of Mormon and the founding prophet Joseph Smith's marriages directly implicate the Church's core religious teachings.... [S]he seeks to attack the veracity of the Church's teachings about the Book of Mormon and its doctrines by challenging the accuracy of certain facts contained in the text. As this court previously explained, a plaintiff may not, for example, challenge in a court of law religious beliefs that Noah built an ark, loaded it with his family and representative animals of the world, and was thereby saved from world-engulfing floods. Neither may a plaintiff circumvent this restriction by merely attacking religious accounts concerning the locations where Noah built the ark or where the ark came to rest....

Gaddy is correct that courts are required to evaluate the sincerity of religious beliefs.... However, courts engage in this inquiry of those seeking religious accommodation or exception to a rule or law of general application ... for the purpose of ensuring the government accommodate only genuine religious beliefs that are sincerely held.

This rationale is inapplicable here because the church autonomy doctrine is not an accommodation.... Rather, it is a "fundamental right of churches to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine."

The court however did allow plaintiff to move ahead with her civil RICO claim based on alleged misrepresentations about the way in which tithed funds would be spent:

Here, Gaddy does not challenge the Church's tithing doctrine or teachings related to it.... Gaddy instead points to specific factual statements allegedly made by the Church ... concerning the Church's use of tithing funds and alleges those statements are false. The inquiry required to adjudicate this claim does not implicate religious principles of the Church or the truth of the Church's beliefs concerning the doctrine of tithing. This claim further does not require the court to determine whether the Church or its members were acting in accord with what they perceived to be the commandments of their faith. Gaddy has instead challenged secular representations....

9th Circuit: Arizona Prison Rules Did Not Substantially Burden Inmate's Religious Exercise

 In Yokois v. Ryan, (9th Cir., July 30, 2021), the U.S. 9th Circuit Court of Appeals affirmed the dismissal of an Arizona inmate's 1st Amendment and RLUIPA claims. The court said in part:

ADC’s policy requiring inmates to go through authorized vendors to purchase religious items was at most, an inconvenience, and not a substantial burden on Yokois’ ability to acquire religious items. Similarly, ... the ADC policy in question only prevented Yokois from pinning religious materials on his bulletin board while he was outside his cell and not using them. As a result, Yokois did not show that these policies so burdened his right to exercise his religion that he felt pressured to abandon his beliefs.

Dispute Over Church Vote On Hiring Pastor May Move Ahead

In Howard v. Heritage Fellowship, (VA Cir. Ct., June 30, 2021), a Virginia state trial court refused to dismiss a suit by five church members challenging the membership vote on employment of a senior pastor.  The court said in part:

... Plaintiffs bring suit in concern of whether "the Deacons Board's decision to finalize the membership roll after the results of the 2018 election was in compliance with Bylaws, Constitution and other applicable policies."... [N]one of this request requires the Court to delve into a religious thicket by reviewing religious principles of membership.... [T]here is no allegation ... of a doctrinal dispute between two factions, HFC also lacks an internal tribunal to decide conflicts.... Since HFC lacks internal tribunals to rule on such matters, civil court action is necessary to resolve this dispute.

The court also concluded that the ministerial exception doctrine does not apply, despite the fact that the dispute revolves around selection of the church's minister, saying in part:

Although the language of the ministerial exception does not explicitly state it cannot be applied to other scenarios, that silence does not mean it may extend to election issues. Here, Plaintiffs only ask for democratic, neutral principles of law to be enforced. The Court is not asked to determine whether Reverend Sullivan would make a good Pastor, or if he may stay within said position.

Biden Announces Religious Freedom and Anti-Semitism Nominations

President Biden today announced the names of four individuals who he intends to nominate to key positions involving religious affairs. Two of the nominations are for positions at the ambassadorial level:

Rashad Hussain, Nominee for Ambassador-at-Large for International Religious Freedom

Deborah Lipstadt, Nominee for Special Envoy to Monitor and Combat Anti-Semitism with the Rank of Ambassador

Two others are nominations to USCIRF: 

Khizr Khan, Appointee for Commissioner of the United States Commission on International Religious Freedom

Sharon Kleinbaum, Appointee for Commissioner of the United States Commission on International Religious Freedom

The White House announcement sets out extensive biographical facts on each nominee.

Defrocked Cardinal McCarrick Charged Criminally In Massachusetts For Sex Abuse Committed Decades Ago

 CNN Reports that a criminal complaint in a Massachusetts state trial court charges now-defrocked Cardinal Theodore McCarrick with three counts of indecent assault and battery on a person over 14 years old.  The charges grow out of abuse of a boy beginning in 1974. McCarrick becomes the highest ranking Catholic clergy member to face criminal charges for sex abuse of a minor.

11th Circuit: Exclusion of Anti-LGBT Group From Charitable Donation Program Is Upheld

In Coral Ridge Ministries Media, Inc. v. Amazon.com, Inc., (11th Cir., July 28, 2021), the U.S. 11th Circuit Court of Appeals affirmed an Alabama federal district court's dismissal of a defamation and religious discrimination suit brought by a Christian ministry and media company.  At issue is Amazon's customer-choice charitable donation program which excludes as possible beneficiaries organizations that are designated as hate groups by the Southern Poverty Law Center. Coral Ridge was listed as a hate group because of its religious beliefs opposing LGBTQ conduct. The court dismissed the defamation claim because plaintiff failed to adequately plead actual malice (i.e., knowledge of falsity or reckless disregard of the truth). The court dismissed Coral Ridge's claim of religious discrimination in violation of the public accommodation provisions of the 1964 Civil Rights Act, saying in part:

[T]he district court was correct in finding that Coral Ridge’s interpretation of Title II would violate the First Amendment by essentially forcing Amazon to donate to organizations it does not support.... 

Coral Ridge’s proposed interpretation of Title II would infringe on Amazon’s First Amendment right to engage in expressive conduct and would not further Title II’s purpose....

Courthouse News Service reports on the decision.

Catholic Hospital's Refusal To Allow Gender Dysphoria Procedure Violates ACA Discrimination Ban

In Hammons v. University of Maryland Medical System Corporation, (D MD, July 28, 2021), a transgender man challenged the refusal by University of Maryland St. Joseph Medical Center to allow his physician to perform a hysterectomy as part of his treatment for gender dysphoria. The hospital, while a subsidiary of the University of Maryland state system, adheres to Catholic religious doctrine. The court dismissed plaintiff's Establishment Clause and Equal Protection Clause claims on 11th Amendment state sovereign immunity grounds. However the court concluded that plaintiff had stated an adequate claim of sex discrimination that is prohibited by §1557 of the Affordable Care Act.

Free Exercise Challenges To Illinois COVID Orders Dismissed As Moot

In Elim Romanian Pentecostal Church v. Pritzker, (ND IL, July 26, 2021), an Illinois federal district court dismissed as moot religious freedom challenges by two churches to Illinois Governor Jay Pritzker's now-expired emergency COVID-19 orders. The court said in part:

[I]t is absolutely clear that the alleged wrongful behavior— restrictions on religion due to the COVID-19 pandemic— are not reasonably expected to recur.

Clergy Sex Abuse Case Alleges Racial Discrimination As Well

A clergy sex-abuse case with a new twist was filed this week in a Wisconsin federal district court.  As described by a press release from Nate's Mission:

This morning attorneys filed a federal civil complaint ... against the Franciscans of the Blessed Virgin Mary, headquartered in Franklin, Wisconsin, and the Diocese of Jackson in the case of former Franciscan Brother Paul West, alleging discrimination and racial disparities in the treatment of Raphael Love, a Black clergy abuse victim. The lawsuit is believed to be the first of its kind in the clergy abuse crisis alleging a pattern of racial discrimination both in the placement of known offenders and treatment of survivors.

The complaint (full text) in  Love v. Catholic Diocese of Jackson, (ED WI, filed 7/27/2021), alleges in part:

Defendants conspired ... to deceive ... Plaintiff and other African American victims to accept a nominal and unconscionable settlement when the Defendants knew that the amount was far below even the cost of the future treatment the Plaintiff's injuries ... and was designed in bad faith to take advantage of the Plaintiff's underprivileged and impoverished condition.

10th Circuit: Colorado Anti-Discrimination Law Can Apply To Wedding Website Designer

 In 303 Creative LLC v. Elenis, (10th Cir., July 26, 2021), the U.S. 10th Circuit Court of Appeals upheld the application of Colorado's Anti-Discrimination Act to a wedding website design company whose owner for religious reasons refuses to create websites that celebrate same-sex marriages. The Act bars refusing services because of a customer's sexual orientation and publishing any communication that indicates such discriminatory practices. The majority conceded that the law compelled speech and acted as a content-based restriction. However the majority found that it nevertheless was constitutional because it was narrowly tailored to further a compelling state interest.  The majority said in part:

Here, Colorado has a compelling interest in protecting both the dignity interests of members of marginalized groups and their material interests in accessing the commercial marketplace....

To be clear, we, like the Dissent, do not question Appellants’ “sincere religious beliefs” or “good faith.”... Yet, we fail to see how Appellants’ sincerity or good faith should excuse them from CADA. Appellants’ intent has no bearing on whether, as a consequence, same-sex couples have limited access to goods or services....

The Communication Clause does not violate the Appellants’ Free Speech rights. As the district court correctly held, Colorado may prohibit speech that promotes unlawful activity, including unlawful discrimination....

Chief Judge Tymkovich filed a lengthy dissenting opinion. saying in part:

While everyone supports robust and vigorously enforced anti-discrimination laws, those laws need not and should not force a citizen to make a Hobson’s choice over matters of conscience. Colorado is rightfully interested in protecting certain classes of persons from arbitrary and discriminatory treatment. But what Colorado cannot do is turn the tables on Ms. Smith and single out her speech and religious beliefs for discriminatory treatment under the aegis of anti-discrimination laws.

 ADF issued a press release announcing the decision.

9th Circuit: COVID Closure of Private Schools May Have Violated Due Process Rights of Parents

In Brach v. Newsom. (9th Cir., July 23, 2021), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, rejected due process challenges to California's COVID-related closure of in-person instruction in public schools, but held that the closure of in-person instruction in private schools may have violated parents' and students' due process rights. The court said in part:

We reach a different conclusion, however, as to the State’s interference in the in-person provision of private education to the children of five of the Plaintiffs in this case. California’s forced closure of their private schools implicates a right that has long been considered fundamental under the applicable caselaw—the right of parents to control their children’s education and to choose their children’s educational forum. Because California’s ban on in-person schooling abridges a fundamental liberty of these five Plaintiffs that is protected by the Due Process Clause, that prohibition can be upheld only if it withstands strict scrutiny. Given the State closure order’s lack of narrow tailoring, we cannot say that, as a matter of law, it survives such scrutiny.

Judge Hurwitz dissented in a lengthy opinion, arguing that the case is moot and also disagreeing with the majority's substantive reasoning.

9th Circuit: Church Has Standing To Challenge Washington Abortion Coverage Mandate

In Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (9th Cir., July 22, 2021), the U.S. 9th Circuit Court of Appeals reversed a Washington federal district court's dismissal for lack of standing of a challenge to a Washington statute that requires health insurance plans that cover maternity care to also cover abortions. The court said in part:

The state’s argument that Cedar Park did not suffer an injury because SB 6219 did not prevent Kaiser Permanente from continuing to offer a plan that restricted abortion coverage fails because Kaiser Permanente reasonably understood the plain language of SB 6219 as precluding such restrictions, and it acted accordingly when it removed the restrictions from Cedar Park’s health plan.

The court affirmed the dismissal of the church's equal protection claim. ADF issued a press release announcing the decision.

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.]