Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Orr v. Fourth Episcopal District African Methodist Episcopal Church, (IL App., Aug. 14, 2018), an Illinois state appellate court dismissed on ecclesiastical abstention grounds a defamation lawsuit brought by Rev. Charles Orr, the chairperson of a committee responsible for screening candidates for admission to the ministry within the AME Church. A woman whose application for the ministry was deferred charged Orr with sexual harassment. The charge was shared with others in the church hierarchy.  The court said in part:

Plaintiff failed to present evidence that defendants published Tamara’s statements to anyone outside of the internal disciplinary procedures of the AME Church. The statements made pursuant to the internal disciplinary procedures come within the ecclesiastic abstention doctrine and, accordingly, are protected by the first amendment.

WGLT News reports on the decision.

Suit Claims Utah Medical Marijuana Initiative Violates Mormons' Religious Freedom

The Salt Lake Tribune reports that yesterday a suit was filed in Utah state court seeking, on free exercise and free speech grounds, to remove Utah's medical marijuana initiative from the November ballot.  The suit, citing the U.S. Supreme Court's recent Masterpiece Cakeshop decision, challenges the provision (Sec. 26-60b-110) in the initiative (full text) that bars refusals to rent to a medical marijuana card holder. The complaint reads in part:

In the United States of America, members of all religions, including the Church of Jesus Christ of Latter Day Saints have a constitutional right to exercise their religious beliefs. This includes the right not to consort with, be around, or do business with people engaging in activities which their religion finds repugnant....

The State of Utah is attempting to compel the speech of Utah landowners by suppressing their ability to speak out against cannabis use and consumption by only renting to tenants who do not possess or consume cannabis," the complaint reads, “and who support their viewpoints in opposition against cannabis possession and consumption.

In the suit, plaintiff contends that his "religious beliefs include a strict adherence to a code of health which precludes the consumption and possession of mind-altering drugs, substances and chemicals, which includes cannabis and its various derivatives." Apparently this is based on interpretation of the Mormon Word of Wisdom health code.

No Standing To Assert Jewish Tenant's Free Exercise Objection To Saturday Eviction

Hurley v. Town of Southampton, 2018 U.S. Dist. LEXIS 137089 (ED NY, Aug. 13, 2018) involves various claims by the owner of a rental property stemming from his prosecution for violating Southampton's transient rental law. In the case, a federal magistrate judge recommended dismissing for lack of standing the owner's assertion that the free exercise rights of one of his tenants were violated when he was evicted by Code Enforcement officials. Plaintiff claimed that the Saturday eviction of the tenant and his children forced the tenant, an Orthodox Jew, to drive his car on the Sabbath in violation of his religious beliefs.

Masterpiece Cakeshop Sues Colorado In New Religious Accommodation Dispute

In the wake of the Masterpiece Cakeshop decision by the U.S. Supreme Court in June, Masterpiece Cakeshop owner Jack Phillips is again entangled in litigation.  The complaint (full text) in Masterpiece Cakeshop, Inc. v. Elenis, (D CO, filed 8/14/2018) alleges that the Colorado Civil Rights Commission violated Phillips' free exercise, free speech, equal protection and due process rights when on July 2 it issued a Determination (full text) that Phillips violated the state's public accommodation anti-discrimination law by refusing to bake a birthday cake that celebrates a customer's gender transition.  The district court lawsuit alleges in part:

6.... [S]ome Colorado citizens, emboldened by the state’s prosecution of Phillips, have targeted him. On the same day that the Supreme Court announced it would hear Phillips’s case, a Colorado lawyer called his shop and requested a cake designed with a blue exterior and pink interior, which the caller said would visually depict and celebrate a gender transition. Throughout the next year, Phillips received other requests for cakes celebrating Satan, featuring Satanic symbols, depicting sexually explicit materials, and promoting marijuana use. Phillips believes that some of those requests came from the same Colorado lawyer.

7. Phillips declined to create the cake with the blue and pink design because it would have celebrated messages contrary to his religious belief that sex—the status of being male or female—is given by God, is biologically determined, is not determined by perceptions or feelings, and cannot be chosen or changed. A mere 24 days after Phillips prevailed in the Supreme Court, Colorado told him that he violated Colorado law by declining to create that cake. In so doing, the state went back on what it told the Supreme Court in its Masterpiece briefing—that its public accommodation law allows Phillips to decline to create cakes with pro-LGBT designs or themes.

ADF issued a press release announcing the filing of the lawsuit. Fox 31 News reports on the lawsuit.

Indonesian Blasphemy Trial Underway For Woman Who Complained About Mosque Loudspeakers

AP reports on the blasphemy trial of an ethnic Chinese woman in the Indonesian province of North Sumatra. The woman was charged after she complained in 2016 about the volume of a mosque's loudspeakers. Reports of her complaint led to a July 2016 riot in which 14 Buddhist temples were burned and ransacked. Two people have been charged for instigating that riot.  Prosecutors are asking for an 18 month prison term in the blasphemy trial.

Pennsylvania Grand Jury Report On Catholic Dioceses Sex Abuse Is Released

As previously reported, last month the Pennsylvania Supreme Court ordered the public release (with certain redactions) of a 900-page grand jury report on allegations of child sexual abuse, failure to report abuse, and other acts endangering children by persons associated with 6 Pennsylvania Catholic dioceses.  The full text of the report was made public yesterday. Statements on the release of the report, or in anticipation of it, were issued by the Catholic dioceses of Allentown, Erie, Greensburg, Harrisburg, Pittsburgh, and Scranton. The Pittsburgh Post-Gazette reports on the statement by Pennsylvania's attorney general upon release of the document.

Fraudulent Concealment Claim Against LDS Church Can Proceed

In Denson v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, Aug. 13, 2018), a Utah federal district court permitted a sexual assault victim to move ahead with her suit against the LDS Church for fraudulent concealment of its knowledge that the president of the Mission Training Center was a sexual predator. A number of other claims were dismissed, including those against the sexual predator that were dismissed on statute of limitations grounds.  Fox 13 News reports on the decision.

1st Circuit RefusesTo Change District Court's Language Criticizing Anti-LGBT Activist

In Sexual Minorities Uganda v. Lively, (1st Cir., Aug. 10, 2018), the U.S. 1st Circuit Court of Appeals refused to purge the opinion of a Massachusetts federal district court of language that harshly criticized the actions of anti-LGBT activist Pastor Scott Lively.  The 1st Circuit said that because Lively had won in the district court, it lacks jurisdiction over an appeal, noting:

federal courts of appeals have no roving writ to review ... a district court's word choices...

The case involved an Alien Tort Statute lawsuit against Lively growing out of his aid to anti-LGBT activists in Uganda. The district court held that there had been insufficient conduct in the United States to support a suit under the ATS. Courthouse News Service reports on the decision.

Federal Contract Compliance Office Issues Directive On Religious Rights of Contractors

The Office of Federal Contract Compliance Programs last week issued Directive 2018-03 (Aug. 10, 2018) in order to maximize free exercise rights of federal contractors and subcontractors. OFCCP is responsible for enforcing the anti-discrimination and equal opportunity provisions applicable to contractors and subcontractors.  The Directive says in part:

Recent court decisions have addressed the broad freedoms and anti-discrimination protections that must be afforded religion-exercising organizations and individuals under the United States Constitution and federal law. See, e.g., Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719, 1731 (2018) (government violates the Free Exercise clause when its decisions are based on hostility to religion or a religious viewpoint); Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017) (government violates the Free Exercise clause when it conditions a generally available public benefit on an entity’s giving up its religious character, unless that condition withstands the strictest scrutiny); Burwell v. Hobby Lobby Stores, Inc., 134 S. Ct. 2751, 2775 (2014) (the Religious Freedom Restoration Act applies to federal regulation of the activities of for-profit closely held corporations)....

OFCCP staff are instructed to take these legal developments into account in all their relevant activities, including when providing compliance assistance, processing complaints, and enforcing the requirements of E.0. 11246....

Liberty Counsel issued a press release discussing the Directive. Think Progress reports on the Directive.

Recent Articles of Interest

From SSRN:

• Brendan T. Beery, Rational Basis Loses Its Bite: Justice Kennedy's Retirement Removes the Most Lethal Quill from LGBT Advocates' Equal-Protection Quiver, (Syracuse Law Review, Forthcoming).
• Rachel A. Harmon, Policing, Protesting, and the Insignificance of Hostile Audiences, (Knight First Amend. Inst. (Nov 2, 2017)).
• William D. Araiza, Animus and its Discontents, (Florida Law Review, Forthcoming).
• Teemu Ruskola, Notes on The Neutered Mother, or Toward a Queer Socialist Matriarchy, (Emory Law Journal, Vol. 67, No. 1165, 2018).
• Julia Quigley, Payments in Lieu of Trouble: Nonprofit Pilots as Extortion or Efficient Public Finance?, (NYU Environmental Law Journal, Vol. 26, No. 2, 2018).

From SmartCILP:

• Tesch Leigh West, When Corporations Go to Church: Free Exercise Under Hobby Lobby, [Abstract], 27 Boston University Public Interest Law Journal 37-71 (2018).
• Carson Holloway, Judicial Review and Subjective Intentions, [Abstract], 9 Faulkner Law Review 1-26 (2017).
• Hon. Kenneth Starr, [Abstract], Presidents as Tradition Creators and Tradition Keepers, 9 Faulkner L. Rev. 27-43 (2017).
• Roberto Rosas, The Ecclesiastical Tribunals Field Hospital for Wounded Marriages The New Matrimonial Processus Brevior, 16 Seattle Journal for Social Justice 427-485 (2017).
• Allan W. Vestal, Cents and Sensibilities, 20 University of Pennsylvania Journal of Constitutional Law 245-311 (2017).
• Patrick Weil, Freedom of Conscience, But Which One? In Search of Coherence in the U.S. Supreme Court's Religion Jurisprudence, 20 University of Pennsylvania Journal of Constitutional Law 313-370 (2017).

Recent Prisoner Free Exercise Cases

In  Allah v. Semple, 2018 U.S. Dist. LEXIS 131476 (D CT, Aug. 6, 2018), a Connecticut federal district court dismissed a Nation of Gods and Earths inmate's complaint that his ability to practice his religion has been blocked.

In Evans v. Prisk, 2018 U.S. Dist. LEXIS 131900 (WD MI, Aug. 6, 2018), a Michigan federal district court adopted a magistrate's recommendation (2018 U.S. Dist. LEXIS 132655, July 5, 2018) and dismissed a Jehovah's Witness inmate's free exercise claim, but permitted him to move ahead with his equal protection complaint that the rule requiring at least 5 inmates before a group religious service will be held was applied unequally.

In Lopez v. Los Angeles County Sheriff's Department, 2018 U.S. Dist. LEXIS 133827 (CD CA, Aug. 7, 2018), a California federal magistrate dismissed, with leave to amend, a Jehovah's Witness free exercise and equal protection claims alleging denial of weekly religious services and of chapel time with his volunteer chaplain.

In Simmons v. Atkins, 2018 U.S. Dist. LEXIS 133863 (ED CA, Aug. 7, 2018), a California federal magistrate judge recommended dismissing an inmate's complaint that he is not allowed to conduct sweat lodge ceremonies for himself and other indigenous inmates.

In Crayton v. Ramey, 2018 U.S. Dist. LEXIS 133954 (ND CA, Aug. 6, 2018), a California federal district court allowed an inmate who was a member of the "original Hebrew faith (Black Jews) religions" to move ahead with his free exercise complaint that defendant made "foul derogatory remarks ridiculing ... [his] Hebrew religious faith."

IRS Grants Non-Profit Church Status To Lesbian Anti-Trans Organization

TaxProf blog and Forbes report on the recent decision by the Internal Revenue Service to grant 501(c)(3) non-profit status to the Pussy Church of Modern Witchcraft.  The IRS also granted the organization tax status as a church. PCMW describes itself as "a congregation of adherents to our female born, lesbian-feminist-based religions beliefs and traditions." It goes on to say "We expressly reject the concepts of gender identity, transgenderism, and gender as being meaningful to defining what a Woman or Girl is." [Thanks to Steven H.Sholk for the lead.]

No Free Exercise Violation In Teacher's Support of Transgender Student

In Leontiev v. Corbett School District, (D OR, Aug. 10, 2018), a Oregon federal district court dismissed a suit brought against a school district and a number of individuals by the mother of a transgender male high school student. The suit alleged that several individuals interfered with plaintiff's parental relationship in helping the student leave his home. It also alleged that one teacher violated plaintiff's First Amendment rights by disparaging her religion when she told a deputy sheriff that plaintiff and her husband were conservative Christians who were not supportive of the student's gender transition. The court said:

... [T]he Court can find no case, that supports the constitutional principle that an off-duty teacher who has never had a particular student in her class violates the Free Exercise Clause of that student’s parent when the teacher, off school premises, expresses her personal opinion, even if that expression is critical of the parent’s religious beliefs. If a public school teacher makes derogatory comments about a particular religion in a classroom in the presence of students, that teacher very well may have violated clearly established principles under the First Amendment, either in violation of the Establishment Clause or, perhaps, the Free Exercise Clause. But that is not what happened in this case....

Court Refuses To Dismiss Church's Challenge To Zoning Conditions For Homeless Shelter

In First Lutheran Church v. City of St. Paul, (D MN, Aug. 8, 2018), a Minnesota federal district court allowed a church located in a residential are of St. Paul to move ahead with a variety of challenges to conditions imposed on its partnering with a homeless shelter. Plaintiff claimed that the conditions, among other things, violate its rights under RLUIPA, the 1st Amendment, the equal protection clause and provisions of the Minnesota constitution. However the court did dismiss it substantive due process challenge. The court had previously granted a preliminary injunction as to two of the conditions.

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.