Satanic Temple Challenge To Missouri Abortion Restrictions Dismissed On Standing Grounds

Last month in Satanic Temple v. Nixon. (ED MO, July 15, 2016), a Missouri federal district court dismissed for lack of standing a suit by the Satanic Temple and one of its members challenging on free exercise and establishment clause grounds Missouri's disclosure and waiting period requirements for women seeking an abortion.  Missouri requires the abortion provider to deliver to a woman seeking an abortion a pamphlet that states in part: "The life of each human being begins at conception. Abortion will terminate the life of a separate, unique, living human being"  The Missouri law also requires a 72 hour waiting period and the opportunity to view an ultrasound, Plaintiffs alleged that these requirements are inconsistent with beliefs of the Satanic Temple and are medically unnecessary.  The court concluded: "Plaintiff Doe is not now pregnant, there is no guaranty that she will become pregnant in the future, and that if she does, she will seek an abortion,,,," Last week in Verdict, Prof. Marci Hamilton commented on the decision. In January a Missouri state court dismissed a similar challenge brought under RFRA. (See prior posting.)

Catholic Bishops React To Biden's Officiating At Same-Sex Marriage

As reported by the Washington Post, last Monday Vice President Joe Biden officiated at the same-sex wedding ceremony of two White House staffers.  In a blog post yesterday, three prominent members of the U.S. Conference of Catholic Bishops (including its president) reacted to Biden's action, without referring to him by name.  They said in part:

When a prominent Catholic politician publicly and voluntarily officiates at a ceremony to solemnize the relationship of two people of the same-sex, confusion arises regarding Catholic teaching on marriage and the corresponding moral obligations of Catholics. What we see is a counter witness, instead of a faithful one founded in the truth....

Faithful witness can be challenging—and it will only grow more challenging in the years to come—but it is also the joy and responsibility of all Catholics, especially those who have embraced positions of leadership and public service. 

Colorado Rules Cargill's Somali Muslim Employees Are Entitled To Unemployment Compensation

Denver Post reported Thursday that Colorado's labor department has ruled that more than 100 Muslim employees fired in December from a Cargill, Inc. meatpacking plant are entitled to unemployment compensation.  At issue was whether the employees could take prayer breaks during their shifts. Cargill withdrew its appeals in the cases after losing in 20 of them.  The dispute in part reflects tensions between Somali workers and Hispanic workers who lead the Teamsters union that represents them.  It is estimated that the unemployment payments will cost Colorado's unemployment insurance fund nearly $1 million.

Illinois Governor Signs Bill Amending Conscience Protections For Health Care Personnel

In Illinois last week, Republican Governor Bruce Rauner signed SB 1564 (full text), amending the state's Health Care Right of Conscience Act. The new Act requires health care facilities to adopt written protocols that assure conscience-based objections by medical personnel will not impair patients' health. Among the minimum standards for these protocols are the following:

(1) The health care facility, physician, or health care personnel shall inform a patient of the patient's condition, prognosis, legal treatment options, and risks and benefits of the treatment options in a timely manner, consistent with current standards of medical practice or care.

(2) When a health care facility, physician, or health care personnel is unable to permit, perform, or participate in a health care service that is a diagnostic or treatment option requested by a patient because the health care service is contrary to the conscience of the health care facility, physician, or health care personnel, then the patient shall either be provided the requested health care service by others in the facility or be notified that the health care will not be provided and be referred, transferred, or given information in accordance with paragraph (3).

(3) If requested by the patient or the legal representative of the patient, the health care facility, physician, or health care personnel shall: (i) refer the patient to, or (ii) transfer the patient to, or (iii) provide in writing information to the patient about other health care providers who they reasonably believe may offer the health care service the health care facility, physician, or health personnel refuses to permit, perform, or participate in because of a conscience-based objection.

Reporting on the governor's action, the State Journal-Register says that the Illinois Catholic Health Association and Catholic Conference of Illinois took a neutral stand on the bill. However in a press release this week, Liberty Counsel complains that the new law forces "Christian and pro-life doctors and pregnancy centers to participate in human genocide."

French Mayor Will Ban Women's Swim Because of Required Modest Dress

In France, the mayor of Pennes-Mirabeau-- a town near Marseille with a large Muslim population-- says he will ban a swim day for women planned at a local park for next month.  According to an AP report yesterday, the event is planned by the socio-cultural group Smile 13.  Women swimming at the event will be required to be covered from knee to chest (awra) in accordance with Muslim notions of modesty.  Mayor Michel Amiel says the decision to call for women to swim covered up is a "provocative act" and risks disturbing the public order after the recent terrorist attacks in Nice and at a Normandy church. [Thanks to Scott Mange for the lead.]

Journalist Appointed To USCIRF

In a press release yesterday, the U.S. Commission on International Religious Freedom announced that Clifford D. May has been appointed to the Commission by Senate Majority Leader Mitch McConnell. A journalist, May is the founder and President of the Foundation for Defense of Democracies.

Sikh Center Sues Under RLUIPA After Work On New Temple Is Ordered Stopped

NBC News reports on a federal lawsuit filed in the Eastern District of New York last week by the Guru Gobind Singh Sikh Center against the Town of Oyster Bay, New York.  In July-- almost 17 months after approving the Center's site plan for its new gurdwara-- the town issued a stop work order and ordered an environmental review, saying that the construction departed from the site plan. Claiming that the town's actions were taken to appease some residents who are hostile to the temple and its worship, the suit alleges violations of RLUIPA as well as the 1st and 14th Amendments. The new building, which replaces an older one that was on the same site, is already 82% complete. The Center has spent over $3 million on construction and on costs subsequent to the stop work order.

Court Applies Younger Abstention To Alabama Chief Justice's Suit Over Temporary Removal

In Moore v. Judicial Inquiry Commission of the State of Alabama, (MD AL, Aug. 4, 2016), an Alabama federal district court, applying the Younger abstention doctrine, dismissed a suit brought by Alabama Chief Justice Roy Moore challenging a provision of the Alabama Constitution that provides a judge formally charged with misconduct shall be disqualified from acting as a judge while the complaint is pending.  Moore is charged with judicial misconduct because of his issuance, after the U.S. Supreme Court's Obergefell decision, of an administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. (See prior posting.)   As reported by the Washington Times, Alabama is the only state with an automatic removal provision for judges charged with misconduct.   A hearing before the Judicial Inquiry Commission on the case is scheduled for Monday.

Settlement Reached In Two ERISA Church Plan Cases

Bloomberg Law reports that Trinity Health Corp. has agreed to settle two class action lawsuits that claim the health care company's pension plans have been wrongly treated as "Church Plans" exempt from ERISA.  The Class Action Settlement Agreement (full text) still must be approved by the court.  The Agreement which covers Lann v. Trinity Health and Chavies v. Catholic Health East and was filed in Maryland federal district court is summarized by Bloomberg Law:

The settlement requires Trinity Health to contribute $75 million among nine different pension plans within the Trinity Health umbrella, including the plan for Catholic Health East, which merged with Trinity in 2014.... Trinity also agreed to run the pension plans in compliance with certain federal funding requirements and worker protection laws for the next 15 years....

In addition to making three $25 million pension plan contributions, the settlement requires Trinity to pay 219 individual employees $550 each to compensate them for benefits they allegedly lost by taking lump sum pension distributions in 2014.

In a similar vein, Trinity will distribute $1.3 million among the 7,371 former employees who allegedly forfeited certain benefits as a result of the pension plans' vesting requirements, which employees argued violated ERISA.

The settlement allows class counsel to seek up to $8 million in attorneys' fees, expenses and incentive awards for certain plaintiffs.

Roy Moore's Internal Court Memos Disclosed

As previously reported, in May the Alabama Judicial Inquiry Commission filed a Complaint against Alabama Supreme Court Chief Justice Roy Moore contending that Moore abused his authority and acted in violation of the Code of Judicial Ethics when in January he issued an administrative order to all probate judges telling them that they had a duty under Alabama law to continue to refuse to issue marriage licenses to same-sex couples. Now, as reported by The Advocate, pleadings filed with the Judicial Inquiry Commission (full text) include redacted versions of two memos which Moore sent to the other Justices urging them to issue an opinion providing guidance to probate court judges.  He wrote in part:

Obergefell is particularly egregious because it mandates submission in violation of religious conscience (ask Kim Davis). Either go along or be disqualified from holding public office. In the near future Christians like Clerk Kim Davis will be driven out of public life, forced to forsake their faith or their livelihood....

 As Justice Alito stated, Obergefell "will be used to vilify Americans who are unwilling to assent to the new orthodoxy" and "to stamp out every vestige of dissent." ... The suppression of all dissent is now underway.

To paraphrase Martin Niemoller: They came for the florists, but I didn't deal in flowers; They came for the bakers, but I didn't bake cakes; They came for a county clerk in Kentucky, but that seemed far away; Then they came for me, and there was no one left to speak out.

Colorado Trial Court Says Injunction Covers Modified School Choice Program

Denver Post reports that yesterday a Colorado trial court held that an earlier injunction against Douglas County, Colorado's School Choice Grant Program covers a restructured version of the school choice arrangement.  After the Colorado Supreme Court held that the state constitution bars participation of sectarian schools in the original program, the county modified it to only allow participation by private schools that are not religiously affiliated.  However yesterday the trial court said that the modified program was promoted by the school district as a continuation of the old program, so the original injunction still applies.  The holding will not have a dramatic impact since only five eligible students had applied to the modified program.

Suit Seeks Control of Church Building Taken Over By Rival Pastor

In Ruskin, Florida, the pastor of the Church of Christ Christian Church and some of his handful of members have filed suit against 80-year old Shirley Dail who in June changed the locks on the church's doors to take possession of it in order to revitalize the congregation. The suit seeks to get back control of the church from Dail (who is also a pastor).  Yesterday's Tampa Bay Times reports:

While maintaining she's been a lifelong member of the church, Dail said she had only attended sporadically since starting a mission, the Church Along the Way, in her Ruskin barn 16 years ago.

She brought that group to the Church of Christ building this summer....

A church volunteer for 35 years, Dail said she was among its founding members in the 1960s and made a personal loan to help build the church.

In May ... Dail said the church was not running "as it was conceived" and that she had been "called home" to make the fixes she wanted.

Dail's goal was to increase the church's flock. Dail said she couldn't sit by and watch her church dwindle like so many others throughout the country.

District Court Holds Title VII Does Not Cover Sexual Orientation Discrimination

In Matavka v. Board of Education of J. Sterling Morton High School District 201, (N.D. Ill. 2016, Aug. 1, 2016), an Illinois federal district court dismissed a Title VII complaint by a former school employee alleging severe anti-gay harassment from his coworkers and supervisors.  The court indicated that it was required to follow the recent 7th Circuit decision in Hively v. Ivy Tech Comt. Coll that held Title VII does not cover discrimination on the basis of sexual orientation. (See prior posting.)  However the district judge expressed qualms about that conclusion similar to concerns expressed by two 7th Circuit judges in Hively.  Cook County Record reports on the decision.

Supreme Court Temporarily Stays 4th Circuit's Ruling On Title IX and Transgender Rights

The U.S. Supreme Court yesterday issued an order temporarily staying the 4th Circuit's mandate to a Virginia federal district court to reconsider its denial of a preliminary injunction in a transgender rights case.  In Gloucester County School Board v. G.G., (Sup. Ct., Aug. 3, 2016), the Court by a vote of 5-3 stayed the 4th Circuit's mandate pending the timely filing and disposition of a petition for certiorari.  In the case, the 4th Circuit held that a Virginia school board's policy barring a transgender boy (who had not undergone sex-reassignment surgery) from using the boy's rest rooms at his school violates Title IX's ban on discrimination on the basis of sex. (See prior posting.)  Justices Ginsburg, Sotomayor and Kagan dissented from the grant of a stay.  Justice Breyer said he concurred with the stay "as a courtesy" while the Supreme Court is in recess. Los Angeles Times reports on the Supreme Court's action.

Unitarian Church Sues Saying It Has Religious Duty To Use Solar Panels

RLUIPA Defense blog reported last week on a suit filed in late June in Massachusetts by a Unitarian church seeking to install solar panels on its building in an Historic District. The complaint (full text) in First Parish in Bedford, Unitarian Universalist v. Historic District Commission of the Town of Bedford, (MA Superior Ct., filed 6/27/2016), contends that the denial of a certificate of appropriateness to install solar panels on the roof of its Meetinghouse infringes church members' free exercise of religion in violation of the Massachusetts and U.S. Constitutions. The complaint alleges that:

Unitarian Universalists ... believe that their religion necessarily involves taking action on a personal, congregational and community level to confront and mitigate mankind's role in causing and exacerbating global warming.

USCIRF Releases Report On U.S. Treatment of Asylum Seekers

The U.S. Commission on International Religious Freedom yesterday released a report titled Barriers to Protection: The Treatment of Asylum Seekers in Expedited Removal.  The report is a follow-up to one issued in 2005, and says:

The research revealed that, although DHS had taken some measures in response to the 2005 study, there were continuing and new concerns about the processing and detention of asylum seekers in Expedited Removal, and most of USCIRF’s 2005 recommendations had not been implemented.

The Report focuses on refugee processing generally, and not specifically on those who claim refugee status based on religious persecution.  However the Report gives this example of problems faced by those claiming religious persecution:

A [Border Patrol] supervisor ... expressed skepticism about Chinese claims of religious persecution, telling USCIRF that Chinese individuals often say they are Christian but cannot even name the church they attend; when USCIRF informed him that many Chinese Christians worship in homes, not churches, he seemed surprised.

Nevada Supreme Court Hears Oral Arguments In School Choice Cases

On Friday, the Nevada Supreme Court heard oral arguments (audio of full oral arguments) in two cases challenging the constitutionality of Nevada's extensive school-choice law enacted in 2015.  The law provides for educational savings accounts funded by the state. The cases are captioned Schwartz v. Lopez in the Supreme Court, and were decided below sub. nom Duncan v. State of Nevada (see prior posting) and Lopez v. Schwartz (see prior posting).  Courthouse News Service reports on Friday's oral arguments.

Court Refuses Stay Pending Appeal In Challenge To Mississippi Anti-LGBT Conscience Law

In Barber v. Bryant, (SD MS, Aug. 1, 2016), a Mississippi federal district court refused to stay pending appeal its earlier order granting a preliminary injunction against Mississippi House Bill 1523, the Protecting Freedom of Conscience from Government Discrimination Act. (See prior posting.)  The Act protects a wide variety of conduct reflecting disapproval of, or refusals to provide goods and services to, members of the LGBT community.  The court rejected movants' claim that they are likely to succeed on the merits of their appeal that defends the law. Responding to movants' argument that "HB 1523 is akin to federal exemption laws protecting pacifists and abortion opponents," the court said:

issuing a marriage license to a gay couple is not like being forced into armed combat or to assist with an abortion. Matters of life and death are sui generis. If movants truly believe that providing services to LGBT citizens forces them to “tinker with the machinery of death,” their animus exceeds anything seen in Romer, Windsor, or the marriage equality cases.

Buzz Feed reports on the decision.

Satanic Temple To Offer Alternative To Good News Clubs

The Satanic Temple, whose agenda is secularist and not the promotion of devil worship, is again using its provocative name and doctrines of equal access to promote its agenda of separation of church and state.  As reported last week by the Washington Post,  the organization is introducing the After School Satan Club to public elementary schools, modeled after the widespread Christian-based Good News Clubs. In a letter (full text) to selected school districts, organizers say:

The After School Satan Club (ASSC) meets once a month immediately after school for one to one and a half hours.... ASSC meetings typically include a healthy snack, literature lesson, creative learning activities, science lesson, puzzle solving and art project.  Every child receives a membership card and must have a signed parental permission slip to attend.

Ministerial Exception Claim Requires Case-Specific Factual Analysis

In Collette v. Archdiocese of Chicago, (ND IL, July 29, 2016), an Illinois federal district court refused to dismiss an employment discrimination suit brought by plaintiff who for 17 years was employed as the Director of Worship and Director of Music at Holy Family Parish in Inverness, Illinois.  He was dismissed when it was learned he was planning to marry his same-sex partner.  When he sued claiming violations of federal, state and local law, defendants moved to dismiss on the basis of the ministerial exception doctrine.  They argued that he should be seen as a "ministerial" employee based solely on his titles. The court refused to dismiss solely on the pleadings, holding that whether plaintiff is a "ministerial" employee requires a fact-specific analysis.