Chautauqua Cottage Community Eliminates Christian-Only Clause

As previously reported, last year a suit was filed in Michigan federal district court against the Bay View Association, a Lake Michigan summer community with roots in the Chautauqua Movement, challenging provisions in the Association's rules that limit cottage ownership to practicing Christians. Now, according to the Grand Rapids News, nearly 70% of the members of the Association have voted to amend its bylaws to eliminate the requirement that members be of the "Christian persuasion."

Church's RLUIPA Zoning challenge Can Move Ahead

In Redemption Community Church v. City of Laurel, Maryland, (D MD, Aug. 8, 2018), a Maryland federal district court refused to dismiss a lawsuit brought by a small Christian church challenging the city's zoning regulations that require houses of worship located on less than one acre in a commercial zone to obtain a special zoning exception.  The church planned to operate a non-profit coffee house and a house of worship from the same property. The court held that the church had adequately stated claims for violation of RLUIPA's equal terms and non-discrimination provisions as well as various provisions of the 1st and 14th Amendments.

UK Employment Tribunal Says Scottish Independence Is Protected Philosophical Belief

The United Kingdom's Equality Act prohibits not just religious discrimination, but also discrimination on the basis of any philosophical belief.  Scotland's Sunday Herald reports that a Scottish Employment Tribunal has held that Scottish independence qualifies as a philosophical belief under the statute.  The case was brought by Christopher McEleny, a Scottish National Party member of a local Council who was planning to run for an SNP leadership position.  McEleny contended that the Ministry of Defense illegally discriminated against because of his independence beliefs when it suspended. his security clearance.  This led to his being fired from his position as an electrician at a munitions site.  Law & Religion UK has more on the decision.

Catholic Politicians and the New Church Stance On The Death Penalty

As previously reported, last week the Vatican's Congregation for the Doctrine of the Faith made a change to the Catechism of the Catholic Church so that it now rejects capital punishment in all cases. An AP report now looks at the impact this change may have on politicians in the United States who are Catholic, saying in part:

Pope Francis' decree that the death penalty is "inadmissible" in all cases could pose a dilemma for Roman Catholic politicians and judges in the United States who are faced with whether to strictly follow the tenets of their faith or the rule of law.

Some Catholic leaders in death penalty states have said they'll continue to support capital punishment. But experts say Francis' change could shift political debates, loom over Supreme Court confirmation hearings, and make it difficult for devout Catholic judges to uphold the law as written.

The question of whether or not Catholic political and judicial leaders would be sinning if they continue to support the death penalty is up for interpretation.

"It's going to be a matter of conscience," said the Rev. Peter Clark, director of the Institute of Clinical Bioethics at St. Joseph's University in Philadelphia. "Judges may have to recuse themselves from many cases, if they truly think it's in conflict with their conscience."

Christian Student Group Sues University of Iowa

A suit was filed yesterday in federal district court by two related Christian student organization against the University of Iowa. The complaint (full text) in InterVarsity Christian Fellowship/ USA v. University of Iowa, (SD IA, filed 8/6/2018), challenges the University's deregistration of IVCF as a recognized student organization because the group imposes a religious belief requirement on its student leaders.  Plaintiffs contend that the University has violated their 1st Amendment rights under the Free Exercise, Establishment and Speech clauses, as well as their rights under various provisions of the Iowa constitution and statutory law.  Becket Fund issued a press release announcing the filing of the lawsuit.

UPDATE: On Aug. 14, Becket Fund reported that an agreement has been reached with the University for it to reinstate, while litigation is pending, nearly 40 student groups that had been suspended under this university anti-discrimination policy.

Amicus Briefs In Bladensburg Cross Cert Petitions Now Available

Links (via SCOTUS blog) are now available to the numerous amicus briefs (as well as briefs of the parties) in the certiorari petition in Maryland-National Capital Park and Planning Commission v. American Humanist Association.  In the case, the 4th Circuit, in a 2-1 decision, held that the 40-foot high Bladensburg Cross that has stood for over 90 years as a World War I Veterans' Memorial, violates the Establishment Clause. (See prior posting). Links are also available to the largely overlapping set of briefs in the related cert. petition in American Legion v. American Humanist Association.

New Survey On Religious Refusals To Provide Service and More

On August 1, the Public Religion Research Institute announced the results of its July 2018 Survey on attitudes toward religiously-based service refusals, LGBT rights and other issues of discrimination. Here are some excerpts from its report:

Close to half (46%) of Americans believe that the owners of wedding-based businesses, such as caterers, florists, and bakers, should be allowed to refuse to serve same-sex couples if doing so violates their religious beliefs, while about as many (48%) say these types of businesses should be required to serve same-sex couples. One year earlier, a majority (53%) of the public said wedding-based businesses should be required to serve gay and lesbian couples, while only about four in ten (41%) said they should not.....

Among major religious groups, white evangelical Protestants express the strongest support for allowing wedding businesses to refuse services.

Nearly two-thirds (64%) of the public express support for same-sex marriage. Only 28% of Americans oppose allowing gay and lesbian couples to marry.... More than seven in ten (71%) Americans say they favor laws that would protect lesbian, gay, bisexual, and transgender (LGBT) people against discrimination in employment, housing, and public accommodations....

Relatively few Americans believe Jewish people in the U.S. are experiencing a considerable amount of discrimination. Only 30% say that Jewish people face a lot of discrimination..... Americans are far more likely to say Muslims are experiencing a substantial degree of discrimination in the U.S. More than six in ten (62%) Americans say there is a lot of discrimination against Muslims....

Connecticut RFRA Does Not Immunize Against Employment Discrimination Suits

In Trinity Christian School v. Commission on Human Rights and Opportunities,  (CT Sup. Ct., Aug. 7, 2018 [official release date]), the Connecticut Supreme Court held that the state's Religious Freedom Restoration Act does not confer complete immunity to religious institutions for employment discrimination suits, and does not operate as a jurisdictional bar to such actions. Thus an interlocutory appeals of an administrative agency's refusal to dismiss a suit is not permitted.

Recent Articles of Interest

From SSRN:

• Engy Abdelkader, Muslims and Islam in U.S. Public Schools: Cases, Controversies and Curricula, (Education, Citizenship, National Identity and Core Values In Western Societies, Brill Publishers (2019 Forthcoming)).
• Cary Franklin, Whole Woman's Health v. Hellerstedt and What It Means to Protect Women, (Forthcoming, Reproductive Rights and Justice Stories (Foundation Press, 2019)).
• Gal Amir, 1648 or 1948? No Room for Westphalia in the Middle-East, (9 Journal on European History of Law no. 1, 99-107 (2018)).
• Kenneth Townsend, A Common Enterprise: Law and the Connection between Civil and Heavenly Realms in the Writings of John Calvin, (Concordia Law Review, Forthcoming).
• Douglas NeJaime & Reva Siegel, Religious Exemptions and Antidiscrimination Law in Masterpiece Cakeshop, (128 Yale Law Journal Forum __ (2018 Forthcoming)).
• J. Stuart Adams, Taking Colliding Trains Off a Collision Path: Lessons from the Utah Compromise for Civil Society (July 10, 2018). (Chapter 21,  The Contested Place of Religion In Family Law, (Robin Fretwell Wilson, ed., Cambridge University Press, 2018)).
• Guillem Riambau, Clin Lai, Boyu Lu Zhao & Jean Liu, Legal Origins, Religion and Health Outcomes: A Cross-Country Comparison of Organ Donation Laws,(July 24, 2018).
• Geoffrey Swenson, Legal Pluralism in Theory and Practice, (International Studies Review, 2018).
• Alan E. Brownstein, Attempting to Engage in Socially Coherent Dialogue About Religious Liberty and Equality, 31 J. Civ. Rts. & Econ. Dev. 71 (2018).
• Rafael Domingo, Contardo Ferrini (1859–1902): A Contemplative Legal Historian, (In Orazio Condorelli and Rafael Domingo (eds.), Great Christian Jurists in Italian History (Cambridge University Press, 2020)).
• Anna Offit, Review Essay: Giving Life to the Death Penalty, (Political and Legal Anthropology Review, Forthcoming).
• Jack Harrison, 'Because of Sex', (Loyola of Los Angeles Law Review, Vol. 52, No. 1, 2018).

Recent Prisoner Free Exercise Cases

In Brown v. Brown, 2018 U.S. Dist. LEXIS 126580 (SD MS, July 30, 2018), a Mississippi federal district court adopted in part a magistrate's recommendations (2018 U.S. Dist. LEXIS 126903, June 11, 2018) and dismissed Bivens claims and certain other claims by a federal prisoner who claimed religious discrimination while employed at the prison, but allowed plaintiff to move ahead with his 5th Amendment equal protection claim.

In Neal v. Miyares, 2018 U.S. Dist. LEXIS 126993 (SD FL, July 26, 2018), a Florida federal magistrate judge recommended denying an inmate's request for an injunciton orderng that he receive fresh kosher meals.

In West v. Kind, 2018 U.S. Dist. LEXIS 127452 (ED WI, July 31, 2018), a Wisconsin federal district court allowed a Muslim inmate to move ahead with his complaint that his religious beliefs were infringed by allowing him to be strip searched by a transgender male who he regards as a female.

In Hardrick v. MacLaren, 2018 U.S. Dist. LEXIS 126697 (WD MI, July 30, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 127932, June 18, 2018) and refused to grant summary judgment to either party in an Muslim inmate's suit complaining that defendant blocked accommodating his late request for inclusion in Ramadan meals.

In Hallom v. Bowens, 2018 U.S. Dist. LEXIS 128224 (ND IL, July 31, 2018), an Illinois federal district court dismissed plaintiff's complaint that a Cook County jail employee refused to accommodate his request to attend group Baptist religious services while he was in protective custody.

In Lambright v. Indiana Department of Corrections, 2018 U.S. Dist. LEXIS 128577 (ND IN, July 31, 2018), an Indiana federal district court allowed a Jewish inmate to move ahead to seek an injunction requiring that he be provided with kosher meals.

In Shaw v. Kaemingk, 2018 U.S. Dist. LEXIS 129520 (D SD, Aug. 2, 2018), a South Dakota federal district court dismissed a complaint by an inmate who is a follower of Dorcha Cosán that his religious rights were infringed because he was unable, due to his indigency, to access Internet service to receive books, music and games.

In Hall v. WV DOC, 2018 U.S. Dist. LEXIS 129907 (SD WV, July 13, 2018), a West Virginia federal magistrate judge recommended dismissing an inmate's complaint that the chaplain refused to acknowledge his Zoroastrian religion.

Deacon's Suit Dismissed On Ecclesiastical Abstention Grounds

According to yesterday's News-Gazette, a Champaign, Illinois state trial court has dismissed on ecclesiastical abstention grounds a lawsuit by a former church deacon of the Jericho Missionary Baptist Church.  As described in the news report:

Formerly the chairman of the deacon board that hired Johnson as pastor in 2009, Halcrombe was seeking to fire Johnson some five years later after he and other former church leaders took another look at Johnson's credentials.

Johnson continues to be pastor of the church, but Halcrombe was dismissed as a deacon and removed from his post as registered agent of the church.

Halcrombe's lawsuit set out the details of what became a several-years-long conflict within the church over leadership, membership and money issues, and it sought a judgment to clarify who current church members are, the constitution and bylaws of the church and the authority and employment of Johnson.

Abortion Protesters Sue City For Violating Their Rights

A suit was filed yesterday in an Ohio federal district court by abortion protesters who claim that Toledo, Ohio police have violated their free speech, free exercise and equal protection rights by enforcing or threatening to enforce various provision of Ohio law against them.  The complaint (full text) in Zastrow v. City of Toledo, (ND OH, filed 8/1/2018), contends in part:

The City’s pattern of conduct, which includes arresting, citing, prosecuting and threatening to arrest, cite, and prosecute, pro-life demonstrators, including Plaintiffs, for engaging in expressive religious activity on the public fora adjacent to the Capital Care abortion center, has had, and continues to have, a chilling effect on Plaintiffs’ expressive religious activity, thereby causing irreparable harm.

Courthouse News Service reports on the lawsuit.

Catholic Church Catechism Changed To Reject Capital Punishment In All Cases

Vatican News reported yesterday that the Vatican's Congregation for the Doctrine of the Faith has made a change to the Catechism of the Catholic Church so that it now rejects capital punishment in all cases. Previously the Catechism allowed for capital punishment in "very rare" circumstances.  The new language, approved by Pope Francis, says:

Recourse to the death penalty on the part of legitimate authority, following a fair trial, was long considered an appropriate response to the gravity of certain crimes and an acceptable, albeit extreme, means of safeguarding the common good.

Today, however, there is an increasing awareness that the dignity of the person is not lost even after the commission of very serious crimes.  In addition, a new understanding has emerged of the significance of penal sanctions imposed by the state.  Lastly, more effective systems of detention have been developed, which ensure the due protection of citizens but, at the same time, do not definitively deprive the guilty of the possibility of redemption.

Consequently, the Church teaches, in the light of the Gospel, that “the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person”, and she works with determination for its abolition worldwide”.

Qualified Immunity For Issuing Citation To Street Preaher

In Roy v. City of Monroe, (WD LA, Aug. 1 2018), a Louisiana federal district court granted defendant's motion for reconsideration and dismissed on qualified immunity grounds the damage portion of a claim by a street preacher against a police officer.  At issue was a claim that issuance of a citation and summons to the preacher for disturbing the peace violated his First Amendment rights. The court said in part:

Sergeant Booth issued a citation to Roy for disturbing the peace based upon Falcon’s complaint to him, in which she said Roy followed her across the street, called her names, and scared her. Falcon’s complaints were corroborated by Falcon appearing scared and by her direct identification of Roy. Sergeant Booth did not issue a citation to Roy for preaching in a public forum. Viewed from the standpoint of an objectively reasonable police officer, Booth had probable cause, and is entitled to qualified immunity.

Plaintiff's claims for injunctive and declaratory relief and attorneys' fees were set for trial.

"Ministerial Exception" Applies To Church Organist

In Sterlinski v. Catholic Bishop of Chicago, (ND IL, July 23, 2018), An Illinois federal district court held that the ministerial exception doctrine applies to an organist at a Catholic parish.  Plaintiff claims he was demoted from Director of Music to Organist because he is Polish and because of his age. The court previously held that the Director of Music position was within the ministerial exception doctrine.  It now rejected plaintiff's claim that his position no longer qualified as "ministerial" after his demotion. In the court's view:

the key dispute is the importance of music—and, more specifically, the importance of instrumentalists—to Catholic Worship at Mass.

The court went on to say:

the Catholic Bishop argues that the evidence indisputably proves that playing the organ in support of the Church’s religious services still qualifies as performing a ministerial function....

Based on the record evidence, the Court must agree. To start, there is only so much that a federal court may do in questioning a church’s view of its own religious doctrine. It is true that, although “a secular court may not take sides on issues of religious doctrine, it must be allowed to decide whether a party is correct in arguing that there is an authoritative church ruling on an issue, a ruling that removes the issue from the jurisdiction of that court.”... But “once the court has satisfied itself that the authorized religious body has resolved the issue, the court may not question the resolution.”

Cook County Record reports on the decision.

President Meets With Inner City Pastors

Yesterday afternoon, President Trump met at the White House with a group of inner city pastors.  The White House has posted a transcript of remarks by the President and a number of the pastors at the meeting.  They focused primarily on issues of economic development and prison reform.

Treasury Department Sanctions Turkish Officials Over Imprisoned American Pastor

The U.S. Department of Treasury announced yesterday that its Office of Foreign Assets Control has imposed sanctions on Turkey's Minister of Justice Abdulhamit Gul and its Minister of Interior Suleyman Soylu.  They are leaders of Turkish government organizations responsible for the arrest and detention of American pastor Andrew Brunson. Brunson has lived in Turkey for more than 20 years.  According to the Treasury Department:

Pastor Andrew Brunson has reportedly been a victim of unfair and unjust detention by the Government of Turkey.  He was arrested in Izmir, Turkey in October 2016, and with an absence of evidence to support the charges, he was accused of aiding armed terrorist organizations and obtaining confidential government information for political and military espionage. 

Vox, reporting on the Treasury Department's action, says that Brunson's case has become a personal issue for President Trump and Vice President Pence, and is important to many Christian evangelicals.  Turkey, however, apparently sees Brunson's case as tied to its attempt to get the U.S. to extradite Turkish cleric Fethullah Gülen to Turkey.

Challenge To Settlement In Mosque Zoning Case Is Dismissed

In Youkhanna v. City of Sterling Heights, (ED MI, Aug. 1, 2018), a Michigan federal district court dismissed a lawsuit challenging a consent decree approved by the Sterling Heights City Council growing out of a dispute over zoning approval for a mosque. (See prior posting.) The consent decree settled two related lawsuits-- one by the Islamic Center and one by the Department of Justice-- that alleged violations of RLUIPA and of the Islamic Center's free exercise rights.  An overcrowded and contentious City Council meeting preceded approval of the consent decree.  Rejecting the challenge to approval of the consent decree the court said in part:

The crux of Plaintiffs’ Complaint is that the approval of the Consent Judgment should be invalidated because the Council purportedly failed to abide by the City’s Zoning Code by neglecting to consider the discretionary standards set forth in § 25.02. Plaintiffs’ further assert that the Consent Judgment should be invalidated because the City did not comply with the notice requirements under the MZEA [Michigan Zoning Enabling Act]. Both of Plaintiffs’ arguments are without merit.

The court also rejected claims that the Michigan Open Meetings Act had been violated and that defendants' 1st, 4th and 14th Amendment rights had been infringed. The court said in part:

Plaintiffs claim their speech was impermissibly chilled when they and other audience members were limited to a two-minute speaking time, prevented from speaking critically of the Islamic faith, and removed from the meeting for being disruptive. However, ... [w]hen the government designates a limited public forum for speech, as is the case of a city council meeting, it may apply restrictions to the time, place, and manner of speech so long as those restrictions “are content neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”

The court had previously denied a preliminary injunction in the challenge.  Detroit News reports that defendants will appeal yesterday's ruling.

Meanwhile, according to AINA, another mosque controversy is on the horizon in Sterling Heights as a group of Pakistanis are moving ahead with plans to convert a former Lutheran church there into a mosque.

Gym's Failure To Disclose Transgender Policy Violates Michigan Consumer Protection Law

In Cormier v. PF Fitness-Midland, LLC, (MI App., July 26, 2018), a Michigan appellate court in a case on remand from the Michigan Supreme Court held that the gym Planet Fitness violated provisions of the Michigan Consumer Protection Act when it failed to inform plaintiff that it had a policy of allowing members to use whichever locker room and rest room corresponds to the gender with which that person self-identifies. The court concluded that Planet Fitness violated MCL 445.903(1)(s), (bb), and (cc) which prohibit:

(s) Failing to reveal a material fact, the omission of which tends to mislead or deceive the consumer, and which fact could not reasonably be known by the consumer.

(bb) Making a representation of fact or statement of fact material to the transaction such that a person reasonably believes the represented or suggested state of affairs to be other than it actually is.

(cc) Failing to reveal facts that are material to the transaction in light of representations of fact made in a positive manner.

In concluding that the failure to inform plaintiff of the policy was material, the court said:

After joining the gym, plaintiff saw an assigned male individual in the women’s locker room and then complained to an employee at the front desk and to defendants’ corporate office. Upon being informed of defendants’ unwritten policy on the matter, plaintiff verbally warned other women at the gym about it. Plaintiff’s actions indicate that she strongly preferred a locker room and a restroom in which individuals who are assigned biologically male are not present, and it is thus reasonable to infer that defendants’ failure to inform plaintiff of the unwritten policy affected her decision to join the gym.

A person who successfully sues under Michigan's Consumer Protection Act may recover actual damages or $250, whichever is greater, plus attorneys' fees. Liberty Counsel issued a press release announcing the decision.

Museum Can Keep Biblical Paintings First Acquired By Nazis

In Saher v. Norton Simon Museum of Art at Pasadena, (9th Cir., July 30, 2018), the U.S. 9th Circuit Court of Appeals in a lengthy opinion applied the Act of State Doctrine to reject the attempt by plaintiff to recover two oil paintings of Biblical characters taken by the Nazis from her father-in-law in a forced sale. At issue are Renaissance masterworks painted by Cranach the Elder— "Adam" and "Eve".  The Forward reports on the decision.