SCOTUS Hears Oral Arguments In Texas Abortion Regulation Case

The U.S. Supreme Court today heard oral arguments in one of the most important abortion cases to reach it in some time, Whole Women's Health v. Hellerstedt.  The full transcript of  today's oral arguments is now available. The case page from SCOTUSblog provides links to the cert. petition, all the briefs, the lower court decision and commentary on the case. Lyle Denniston at SCOTUSblog also has an analysis of this morning's argument. At issue in the case are provisions in a 2013 Texas law requiring physicians who perform abortions to have admitting privileges at a nearby hospital, and requiring abortion clinics to meet standards for ambulatory surgical centers.

Pennsylvania Grand Jury Exposes Extensive Sex Abuse By Catholic Diocese Clergy

Yesterday Pennsylvania Attorney General Kathleen Kane released a 147-page Grand Jury report (full text) on sexual abuse of children by Pennsylvania Catholic clergy.  As summarized in the Attorney General's press release:

A statewide investigating grand jury has determined that hundreds of children were sexually abused over a period of at least 40 years by priests or religious leaders assigned to the Roman Catholic Diocese of Altoona-Johnstown, Pennsylvania....

The widespread abuse involved at least 50 priests or religious leaders. Evidence and testimony reviewed by the grand jury also revealed a troubling history of superiors within the Diocese taking action to conceal the child abuse as part of an effort to protect the institution's image.

The Grand Jury concluded its report with 3 recommendations: (1) abolish the statute of limitations for sexual offenses against minors; (2) open a window to allow child sexual abuse victims to have their civil actions heard; and (3) possible criminal conduct should be directly reported to law enforcement authorities. Washington Post has more on the grand jury report.

EEOC Files 2 Suits Alleging Title VII Already Covers Sexual Orientation Discrimination

The EEOC announced yesterday that it has filed its first two suits in federal court testing its theory that existing laws barring discrimination on the basis of sex cover discrimination on the basis of sexual orientation. In an administrative decision under Title VII handed down in July, the EEOC held that "Discrimination on the basis of sexual orientation is premised on sex-based preferences, assumptions, expectations, stereotypes, or norms." (See prior posting.) Yesterday's suits build on that.  In EEOC v. Scott Medical Health Center, P.C., (WD PA, filed 3/1/2016), the complaint (full text) alleges that a gay male employee's manager repeatedly directed anti-gay epithets at him, as well as other highly offensive comments about his sexuality and sex life. In the other suit, EEOC v. Pallet Companies, (D MD, filed 3/1/2016), the complaint (full text) alleges that a lesbian employee was harassed by her supervisor with comments about her sexual orientation and appearance, and was fired in retaliation for complaining. BuzzFeed reports on the lawsuits.

South Dakota Governor Vetoes Bill Restricting Transgender Students' Choice of Bathrooms

South Dakota Governor Dennis Daugaard yesterday vetoed a bill that would have prohibited public schools from allowing transgender students to use rest rooms and locker rooms consistent with their gender identity. Instead it would have required students to use facilities consistent with their anatomy and chromosomes at birth. (See prior posting.)  In his veto message (full text) Daugaard said in part:

If and when these rare situations arise, I believe local school officials are best positioned to address them.  Instead of encouraging local solutions, this bill broadly regulates in a manner that invites conflict and litigation, diverting energy and resources from the education of the children of this state.

Washington Post reports on the governor's veto.

RICO Lawsuit Filed Against Pastor and Elder of Defunct Megachurch

A civil RICO lawsuit was filed last week against Mark Driscoll, pastor of the now-closed Seattle, Washington, Mars Hill Church.  At its height, the Mars Hill had expanded to 5 states and drew 13,000 attendees on an average Sunday. Also named in the suit filed by 4 former church members was the church's chief elder, John Sutton Turner.  The complaint (full text) in Jacobsen v. Driscoll, (WD WA, filed 2/29/2016), alleges that defendants solicited contributions from thousands of members for specific charitable purposes and then diverted the funds to other purposes, including fraudulent promotion of Driscoll's book, Real Marriage, and for church expansion. Daily Beast reports on the lawsuit and its background:

Mars Hill closed its doors in 2014, following a number of scandals involving allegations of Driscoll’s bullying and spiritual abuse of members and church leaders, misogyny, and homophobia espoused on a church message board, plagiarism, and misuse of church funds—which this lawsuit seeks to redress. Since its closure, the details of the organization’s dissolution have been opaque, with little public accounting, and a group of remaining leaders who have refused to comment on who gets what from the failed enterprise 

Church of Cyprus and Government Reach Salary Subsidy- Land Swap Deal

After 45 years of negotiations, the Church of Cyprus and the Cyprus government have finally reached an agreement on governmental payments of priest salaries in exchange for transfer of land from the Church to the government.  In-Cyprus reported yesterday that the Church will transfer 15,000 acres of land to the government. In exchange the government will fund half the salaries of 700 priests for the next ten years. For each of the 700 priests, the government will pay the church the equivalent of $733 per month.  The land being transferred is valued at the equivalent of $304 million.

Court May Decide Church Affiliation Dispute

In Ohio District Council, Inc. of the Assemblies of God v. Speelman, (OH App., Feb. 29, 2016), an Ohio state appeals court held that the ecclesiastical abstention doctrine does not prevent civil courts from adjudicating the validity of action by a local church, known as Christian Assembly, disaffiliating itself from Assemblies of God and instead merging with (and transferring its property to) Fellowship of Praise Church of God.  After Christian Assembly took this action, Assemblies of God adopted a resolution declaring that it still had jurisdiction over the church and purporting to remove its pastor Dennis Speelman.  In holding that the trial court can decide the dispute, the appeals court said in part:

A judicial determination with respect to the significance of Christian Assembly’s affiliation involves no ecclesiastical issues. Here, the parties have presented evidence of constitutions, by-laws, applications for affiliation, as well as ample testimony regarding the structure of the presbytery. The resolution of that matter does not involve the weighing of any controversies concerning religious doctrines, tenets, or practices....

The trial court was not called upon to determine whether Speelman should be pastor or to determine matters of religious concern. Rather, the trial court was called upon to determine which body was authorized to make those determinations and to defer to the determination of the authorized body. 

Sikh Army Captain Sues Seeking Religious Accommodation

U.S. Army Captain Simratpal Singh, a Sikh, filed suit yesterday in federal district court in the District of Columbia seeking an injunction to require the Army to allow him to continue to serve without requiring him to shave, cut his hair or remove his turban.  According to the complaint (full text) and memorandum in support of application for a TRO and preliminary injunction (full text), Singh was granted a temporary accommodation last December (see prior posting), but as its March 31 expiration approached Singh was ordered to report for special helmet testing and several days of safety-mask testing. No one else in the army has been subjected to this kind of testing.  According to the complaint, "the Army’s discriminatory testing and regulations expose Captain Singh to serious consequences of military discipline and the loss of his career for his religious exercise." The complaint alleges violations of RFRA as well as of the 1st and 5th Amendments.  Becket Fund issued a press release announcing the filing of the lawsuit.

China Charges Human Rights Lawyer Criminally

Radio Free Asia reported yesterday that Chinese authorities have now arrested a Chinese human rights lawyer on criminal charges after he assisted Protestant churches in resisting an urban "improvement" campaign that required removal of their roof-top crosses:

Zhang Kai's initial period of detention in an unknown location under "residential surveillance" reached the end of its six-month limit last week, and the lawyer was immediately held instead under criminal detention on suspicion of "disturbing public order" and "endangering state secrets," a fellow lawyer told RFA....

Chinese media aired footage of Zhang last Friday "confessing" to the charges, and accused U.S.-based Christian rights group ChinaAid of supporting him.

The confession appears to have been coerced.

Cert. Denied In Challenge To N.J. Conversion Therapy Ban

The U.S. Supreme Court yesterday denied certiorari in Doe v. Christie, (Docket No. 15-195, cert. denied 2/20/2016) (Order List.)  In the case, the U.S. 3rd Circuit Court of Appeals upheld a New Jersey statute that prohibits mental health professionals from engaging in "sexual orientation change efforts" with minors. (See prior posting.) Liberty Counsel issued a press release on the Court's action.

Cert Denied In Prisoner Free Exercise Case Over Alito's Dissenting Opinion

The U.S. Supreme Court today denied certiorari in Ben-Levi v. Brown, (Docket No. 14-1086, cert. denied 2/29/2016) over a lengthy dissent to denial of review by Justice Alito (at pg. 39 of Order List). In the case, the lower courts (district court, 4th Cir.) upheld a rule of the North Carolina prison system which requires either a minyan (ten participants) or the presence of a qualified leader (such as a rabbi) in order for a Jewish Bible study group to meet.  Other religious groups were allowed to meet without a specified number of participants or an outside volunteer.  The prison system's rule for Jewish inmates was based on the prison system's understanding of Jewish religious doctrine. Dissenting from the denial of review, Justice Alito wrote:

In essence, respondent’s argument—which was accepted by the courts below—is that Ben-Levi’s religious exercise was not burdened because he misunderstands his own religion..... The argument that a plaintiff’s own interpretation of his or her religion must yield to the government’s interpretation is foreclosed by our precedents.... Even assuming that respondent accurately identified the requirements for a group Torah study under Jewish doctrine—and that is not at all clear—federal courts have no warrant to evaluate “‘the validity of [Ben-Levi’s] interpretations.’”

[Thanks to Marty Lederman via Religionlaw for the lead.] 

Justice Department Investigating Mosque Zoning Dispute In Nebraska

According to yesterday's Omaha World-Herald, the U.S. Justice Department is investigating complaints by leaders of a mosque in Lexington, Nebraska, that the town is burdening their religious freedom in raising zoning objections to the use of a former downtown laundry building for Muslim prayer.  Somali workers from a local meat packing plant use the building for prayer 5 times a day. The paper reports:

City officials maintain that mosque leaders are ignoring local zoning laws and thumbing their noses at requirements for building permits and fire-code inspections.

They insist that the flap is about a lack of parking, not a denial of religious freedom, and that it wasn’t spurred by “Islamophobia.”

.... We’re just trying to plan and redevelop that part of our town,” said Lexington City Manager Joe Pepplitsch.... Let’s find an alternative.”

But local Muslim leaders question why a community that has hosted waves of immigrants seems to be taking such a hard line against them. They had gathered for prayers in two smaller buildings for eight years before expanding into and later buying the larger laundry next door. They see plenty of empty parking stalls nearby at two city-owned lots.

State Exception To Priest-Penitent Privilege Violates Louisiana Religious Freedom Act

The Baton Rouge Advocate reports on a Louisiana state trial court decision handed down on Friday that upholds, on religious freedom grounds, a priest's right to refuse to disclose confidential information regarding sexual abuse of minors received during confession. The court invalidated a provision in LA Children's Code Sec. 609(A)(1) which requires clergy to report abuse or neglect that threatens a child's physical or mental health or welfare, notwithstanding any privilege.  Apparently relying on Louisiana's Preservation of Religious Freedom Act, the court held that while the state has a compelling interest in protecting children from abuse, this is not the least restrictive means of furthering that interest. The decision by Judge Mike Caldwell comes in a suit by Rebecca Mayeaux, now 22, who says that in 2008 she told Rev. Jeff Bayhi during confession that she was being abused by a 64-year old parishioner. Under the ruling, Mayeaux will be able to testify about what she told Bayhi, but her attorneys will not be permitted to argue to the jury that Bayhi was required to report her allegations to authorities.  The ruling is subject to immediate appeal to the Louisiana Supreme Court.  The lawsuit, originally filed in 2009, has already been up to the state Supreme Court once. (See prior posting.)

Recent Articles of Interest

From SSRN:

• Kif Augustine-Adams, Religious Exemptions to Title IX, (February 19, 2016).
• Matthew W. Bourda, Turning the Water to Blood: How Burwell v. Hobby Lobby Drove the Religious Freedom and Restoration Act Out of Touch with Society, (41 T. Marshall L. Rev. Online 160 (2016)).
• Levi Cooper, Legislation for Education: The Munkács Regulations Enacted by Rabbi Tsevi Elimelekh of Dynów, (Polin: Studies in Polish Jewry 30 (2017), Forthcoming).
• Shaun Alberto de Freitas, Religious Associational Rights and Sexual Conduct in South Africa: Towards the Furtherance of the Accommodation of a Diversity of Beliefs, (February 20, 2016).
• Asim Jusic, From Formal Equality to Positive Neutrality to Positive Inferiority (for Some): The European Court of Human Rights’ Limited Influence on Constitutional Changes and Religion in Hungary, (Vienna Journal of International Constitutional Law, Vol. 10, 2016).
• Mohamed A. Arafa, Insights on Divine (Islamic) Law: Islamophobia versus Terrorism, Death Penalty, and Transitional Justice, (CALUMET: Intercultural Law & Humanities Review (Online) 2016).
• Kristine S, Knaplund, Becoming Charitable: Predicting and Encouraging Charitable Bequests in Wills, (77 U. Pitt. L. Rev. (Fall 2015).

From SSRN (Marriage):

• Robin Bradley Kar, Against Marriage Essentialism: A Legal Grounding for Obergefell and Same-Sex Marriage, (University of Illinois Law Review, Forthcoming).
• Gregg Strauss, The Positive Right to Marry, (February 24, 2016).
• Kaiponanea T. Matsumura, A Right Not to Marry, (Fordham Law Review, Vol. 84, 2016).

El Al Sued In Israel Over Gender-Based Reseating To Accommodate Religious Objections

A widely anticipated test case has been filed in court in Israel against El Al Airlines over its practice of accommodating Orthodox Jewish men who, for religious reasons, refuse to sit beside unrelated female passengers. New York Times reported Friday on the discrimination suit filed by the Israel Religious Action Center on behalf of 81-year old Renee Rabinowitz who was pressured by a flight attendant to change seats on a flight from Newark to Tel Aviv.  Rabinowitz is described by the Times as "a sharp-witted retired lawyer with a Ph.D. in educational psychology, who escaped the Nazis in Europe as a child." Rabinowitz moved to Israel from the United States some ten years ago.  Both her second and first husbands were rabbis. The Religious Action Center had been looking for at test case where it was clear that flight attendants, as opposed to passengers alone, were involved in the seating change.

Recent Prisoner Free Exercise Cases

In Shehee v. Ahlin, 2016 U.S. Dist. LEXIS 22708 (ED CA, Feb. 24, 2016), a California federal magistrate judge recommended dismissing a suit by a Hindu civil detainee that he was denied his religious vegan diet.

In Perez v. Watts, 2016 U.S. Dist. LEXIS 20497 (SD GA, Feb. 19, 2016), a Georgia federal district court adopted (as supplemented by the court) a magistrate's recommendation (2015 U.S. Dist. LEXIS 173384, Dec. 31, 2015) and dismissed monetary damage claims brought by a Santeria inmate claiming interference with his ability to practice his religion. (See prior related posting.)

In Powell v. Morris, 2016 U.S. Dist. LEXIS 20971 (D MS, Feb. 22, 2016), a Mississippi federal magistrate judge dismissed a Muslim inmate's complaint that he was not provided halal meals or Taleem study classes.

In Blalock v. Jacobsen, 2016 U.S. Dist. LEXIS 21168 (SD NY, Feb. 22, 2016), a New York federal district court dismissed a Muslim inmate's complaint about limits on his ability to have has prison-issued pants shortened to comply with religious principles.

In Avery v. Elia, 2016 U.S. Dist. LEXIS 21367 (ED CA, Feb. 19, 2016), a California federal magistrate judge recommended dismissing the complaint of a Wiccan inmate that he was not permitted to ceremonially burn wood in a fire pit.

In Cary v. Robinson, 2016 U.S. Dist. LEXIS 20876 (WD MI, Feb. 22, 2016), a Michigan federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 21810, Feb. 2, 2016)  and permitted a Native American inmate to move ahead with his free exercise and equal protection challenges to confiscation and desecration of his medicine bag.

In Johnson v. Brown, 2016 U.S. Dist. LEXIS 20929 (ND AL, Feb. 22, 2016), an Alabama federal district court adopted a magistrate's recommendation (2016 U.S. Dist. LEXIS 21916, Feb. 1, 2016) and dismissed a Muslim inmate's complaint regarding limitation of Sunnah inmates' access to the "Masjid" classroom and occasional interruption of religious services.

In Ramos v. Department of Corrections, 2016 U.S. Dist. LEXIS 22311 (D CT, Feb. 24, 2016), a Connecticut federal district court allowed an inmate who is a member of the Santeria religion to move ahead with his complaint that his free exercise and equal protection rights were infringed when he was not allowed to possess tarot cards to practice his religion.

In Cruz v. Collins, 2016 Mass. App. Unpub. LEXIS 194 (MA App., Feb. 25, 2016), a Massachusetts state appeals court reversed a trial court's dismissal of a RLUIPA claim by a Nation of Islam inmate challenging limits on his access to  use classroom space to pray and study throughout the week.

In Hays v. Helder, 2016 U.S. Dist. LEXIS 23093 (WD AR, Feb. 25, 2016), an Arkansas federal district court adopted a magistrate's recommendation and dismissed (partly on res judicata grounds) a complaint by a member of the Cherokee Indian faith that he was denied access to his medicine bag.

Title IX Religious Organization Exemption Does Not Bar Retaliation Claim Against Catholic High School

In Goodman v. Archbishop Curley High School, Inc., (D MD, Feb. 26, 2016), a Maryland federal district court refused to dismiss a former high school librarian's Title IX retaliation claim against the Catholic high school from which she was fired.  Librarian Annette Goodman reported to the school's administration evidence that another faculty member was having a sexual affair with one of the school's students. The school fired Goodman claiming that she delayed too long reporting her concerns to the school. Goodman says the firing was an attempt to deflect attention from the school's indifference to sexual abuse.  The court rejected the school's claim that Title IX's religious organizations exemption requires dismissal of Goodman's lawsuit, saying in part:

The position of the Defendants ... is that Title IX’s religious organizations exemption bars any employment discrimination or retaliation claim against them if they define their actions as tenets of their religion. There is a noticeable lack of case authority supporting such a broad application of the religious exemption.

The court also rejected defendants' claims that their rights under the First Amendment and RFRA would be violated by allowing the suit to move forward.

Church Fails In RLUIPA Challenge To Village's Zoning Ordinance

In Truth Foundation Ministries, NFP v. Village of Romeoville, (ND IL, Feb. 26, 2016), an Illinois federal district court denied a preliminary injunction to a small congregation serving mainly African immigrants that found itself in violation of the village's zoning code after it had spent over $50,000 expanding a building it was leasing for use as a church.  The court concluded that the church had failed to show a substantial likelihood of success in its claim that the town's zoning requirements violate RLUIPA's complete exclusion, unreasonable exclusion and equal terms provisions.

Trump Pledges To Work To Eliminate Ban on Religious Non-Profits Endorsing Candidates

In a news conference in Ft. Worth, Texas today, Republican candidate Donald Trump-- saying that Christians are afraid to have a lobby because it threatens their tax exempt status-- pledged to work to eliminate the Johnson amendment that prevents non-profits, including religious non-profits, from endorsing or opposing political candidates. (Video of news conference, this portion at 1:44).  This came after evangelical Pastor Robert Jeffress endorsed Trump at the news conference (video at 1:42).

Trump Speculates Audit of His Tax Returns Stems From Religious Discrimination

As reported by Politico, during last night's contentious CNN Republican presidential debate Donald Trump said that he has not released his tax returns because they are the subject of a routine IRS audit. Then in an interview with CNN's Chris Cuomo immediately following the debate, Trump said:

But the one problem I have is that I’m always audited by the IRS, which I think is very unfair. I don’t know, maybe because of religion, maybe because I’m doing something else, maybe because I’m doing this, although this is just recently.

Cuomo followed up asking Trump what he meant by religion, and Trump responded:

Well maybe because of the fact that I’m a strong Christian, and I feel strongly about it. And maybe there’s a bias.  You see what’s happened. I mean, you have many religious groups have been complaining about that. They’ve been complaining about it for a long time.