Tuesday, August 21, 2018

Conservative Christian Groups Oppose Arkansas Tort Reform Ballot Measure

AP reports that Arkansas' proposed constitutional amendment on tort reform (full text) is receiving surprising opposition from conservative Christian anti-abortion groups:
A Christian group has begun rallying churches and abortion opponents against the measure, saying that limiting damage awards in lawsuits sets an arbitrary value on human life, contrary to anti-abortion beliefs, and conflicts with biblical principles of justice and helping the poor....
The Family Council, which championed Arkansas’ ban on gay marriages, is organizing meetings with church leaders to call for the measure’s rejection.
“The Bible is full of references to justice, and [the proposal] creates an environment where the powerful can tip the scales of justice against everybody else, but especially the poor,” Jerry Cox, the Family Council’s head, said at a recent breakfast meeting with pastors.
Pastors were handed informational booklets emblazoned with the words “Don’t Put A Price Tag On Human Life.” Flyers left on each table offered attendees inserts for their church bulletins.

Court Says Religious Commitment To Climate Justice Prevails Over Historic Preservation Rules

According to the Keene Sentinel, last week a Massachusetts trial court judge ruled that a church's religious commitment to climate justice takes precedence over historic preservation rules:
A Massachusetts Superior Court judge last week ordered Bedford’s Historic District Commission to allow the First Parish Church to install solar panels on the roof of the sanctuary. In what could be a precedent-setting decision, the congregation can install panels to generate electricity in keeping with a principle of “climate justice.” John Gibbons, senior minister of the church, said in a press release, “This ruling makes it possible for us to give more than lip service to our religious values, to walk our talk and to live in greater harmony with the rhythms of nature.”
In other words, parishioners believed they needed to do something to cut carbon emissions to protect the earth. That principle of their faith overruled a strict adherence to preservation of the historic character of their 200-year-old building.

DC Circuit Remands Suit On Anti-Sharia Bus Ads

In American Freedom Defense Initiative v. Washington Metropolitan Area Transit Authority, (DC Cir., Aug. 17, 2018), the D.C. Circuit Court of Appeals remanded for further development of an argument based on a intervening Supreme Court decision a challenge to WMATA's guidelines on advertising that may be displayed on buses and in rail stations.  At issue is the constitutionality of a ban on "advertisements intended to influence members of the public regarding an issue on which there are varying opinions." AFDI wanted to rent space to display ads that
make the point that the First Amendment will not yield to Sharia adherent Islamists who want to enforce so-called blasphemy laws here in the United States, whether through threats of violence or through the actions of complicit government officials. 
In a 2-1 decision, the majority held that WMATA did not engage in viewpoint discrimination in rejecting the ad. However, the U.S. Supreme Court's June 2018 decision in Minnesota Voters Alliance v. Mansky , according to the majority, raised an additional issue that the parties should have the opportunity to brief:
whether the discretion vested in a government official to permit or prohibit speech is “guided by objective, workable standards.” Mansky, 138 S. Ct. at 1891.... We must determine whether Guideline 9 is so broad as to provide WMATA with no meaningful constraint upon its exercise of the power to squelch.....
The parties’ briefs predate the decision in Mansky. Yet Mansky invites arguments about whether Guideline 9 is capable of reasoned application.
Judge Henderson dissented, arguing that the suit should be dismissed on mootness grounds. WTOP reports on the decision.

Monday, August 20, 2018

VA Doctor's Statement Did Not Violate Establishment Clause

In Rose v. Borsos, 2018 U.S. Dist. LEXIS 139466 (ED TN, Aug. 17. 2018), a Tennessee federal district court dismissed a claim by a VA hospital patient that a VA doctor violated the Establishment Clause when the doctor told the patient that "God would forgive [him] for committing suicide because of uncontrolled pain."

Trinity Western Drops Community Covenant Requirement For Students

As previously reported, in June the Supreme Court of Canada upheld the decision by two provinces to refuse to accredit Trinity Western University's proposed new law school. The provinces took the action because of the University's religious-based Community Covenant which, among other things, barred students, faculty and staff from "sexual intimacy that violates the sacredness of marriage between a man and a woman."  In response, last week the University announced that the Covenant will no longer be mandatory for students.  However, as reported by Inside Higher Ed, the Covenant will remain mandatory for faculty, staff and administrators. [Thanks to Steven H. Sholk for the lead via TaxProf Blog.]

Recent Articles of Interest

From SSRN:
From SSRN (Free Speech issues):
From SSRN (Religious Law)
From SSRN (Islam and Muslim Nations):

Sunday, August 19, 2018

Court Awards Attorneys' Fees In Contraceptive Mandate Case

In Catholic Benefits Association LCA v. Azar, (WD OK, Aug. 15, 2018), an Oklahoma federal district court awarded attorneys' fees that were dramatically lower than requested by plaintiff's counsel.  The case was one of the lengthy challenges to the Obama Administration's contraceptive coverage mandate's applicability to religious non-profit organizations.  Plaintiffs' counsel requested $3.1 million in fees. In a 36-page opinion, the court ultimately awarded $718,607 in fees and expenses.

Recent Prisoner Free Exercise Cases

In Smith v. Penzone, 2018 U.S. Dist. LEXIS 135075 (D AZ, Aug. 10, 2018), an Arizona federal district court dismissed an inmate's complaint that he was denied assistance with a three-day fast based on the Christian faith surrounding the Ritualistic Day of Atonement, and was denied religious services.

In Robinson v. Cameron, 2018 U.S. Dist. LEXIS 135394 (WD PA, Aug. 9. 2018), a Pennsylvania federal magistrate judge, in a case on remand from the 3rd Circuit, recommended dismissing an inmate's complaint that the sex offender program's requirement that he take responsibility for his offenses amounts to a religious confession which is only to be made to God through Jesus.

In Kelly v. Warden, 2018 U.S. Dist. LEXIS 135602 (SD CA, Aug. 10, 2018), a California federal district court allowed a Catholic inmate to move ahead with his complaint that he was not allowed to change his name to that of his stepfather, which he needed to do to obey the religious obligation to honor his father.

In Chrisco v. Scoleri, 2018 U.S. Dist. LEXIS 136238 (D CO, Aug. 13, 2018), a Colorado federal magistrate judge dismissed an inmate's complaint that he was forcibly medicated because of his religious belief in Alchemical Christianity.

In Woodward v. Ali, 2018 U.S. Dist. LEXIS 136436 (ND NY, Aug. 10, 2018), a New York federal magistrate judge recommended that a Muslim inmate be allowed to move ahead with his complaint that he was removed from the Ramadan meal list, and this was done in retaliation for a complaint he filed against the Muslim chaplain.

In Grayson v. Furlow, 2018 U.S. Dist. LEXIS 136446 (SD IL, Aug. 13, 2018), an Illinois federal magistrate judge allowed an inmate who is a member of the African Hebrew Israelites of Jerusalem and who has taken the Nazirite vow to move ahead with his complaint that his dreadlocks were forcibly cut off in order to have a second identification photo taken.

In Wright v. Lassiter, 2018 U.S. Dist. LEXIS 136823 (WD NC, Aug. 13, 2018), a North Carolina federal district court dismissed an inmate's claims that his religious items were confiscated on various occasions.

In Wilbur v. Fitzpatrick, 2018 U.S. Dist. LEXIS 136898 (D ME, Aug. 14, 2018),  a Maine federal magistrate judge recommended dismissing an inmate's complaint that he was denied access to attend religious services and other faith activities as the result of disciplinary restrictions.

In Snowden v. Prince George's County Department of Corrections, 2018 U.S. Dist. LEXIS 137107 (D MD, Aug. 14, 2018), a Maryland federal district court allowed Muslim inmates to move ahead with their complaint that they were not permitted to perform Friday religious services or daily congregational prayer, while authorities arranged services for Christian inmates.

In McMillan v. Hughes, 2018 U.S. Dist. LEXIS 138953 (D NJ, Aug. 16, 2018), a New Jersey federal district court dismissed an inmate's complaint that officers humiliated him by criticizing his religious requirement of trimming excessive pubic hair.

Saturday, August 18, 2018

EEOC Sues Over Hostile Treatment of Catholic Employee

The EEOC announced on Thursday that it had filed a Title VII lawsuit against New Jersey-based Hackensack Meridian Health alleging a manager's religious harassment of a Catholic employee. According to the press release:
Hackensack was aware of but failed to stop a hostile work environment at its Edison, N.J., facility. Shortly after the employee was hired to perform clinical data analytics work, his manager learned he was Catholic and reacted negatively upon seeing a crucifix in the employee's office. Since then, the manager regularly belittled him, screamed at him, and ridiculed his work in front of others.

Friday, August 17, 2018

Dutch High Court Rules Pastafarianism Is Not A Religion

The Guardian reported yesterday that Netherlands highest court, the Council of State, has ruled that law student Mienke de Wilde who is a Pastafarian cannot wear a colander on her head in her passport and drivers license photo. While Dutch law allows the head to be partially covered for such photos for genuine religious reasons, the court ruled that the Church of the Flying Spaghetti Monster lacks the seriousness and coherence required of a religion.  The court said:
It is important to be able to criticise religious dogma freely through satire but that does not make such criticism a serious religion.

Court Not Barred From Adjudicating Church Merger

In Pure Presbyterian Church of Washington v. Grace of God Presbyterian Church, (VA Sup. Ct., Aug. 16, 2018), the Virginia Supreme Court affirmed a trial court's judgment enforcing a merger agreement between two local Korean speaking Presbyterian churches. Seven months after the congregations had been worshiping together, one of the congregations attempted to withdraw from the merger. The other congregation sued to validate the merger. The Supreme Court rejected the argument that it lacked jurisdiction under the ecclesiastical abstention doctrine, saying in part:
There is nothing inherently ecclesiastical about an agreement to merge two entities.  Although a dispute over the existence or effect of a merger agreement could turn on questions of church doctrine, that is not the case here. Contract law principles are “neutral principles” of law that courts can employ to resolve a dispute between churches. Whether a church voted to merge is a question of fact that does not require a court to resolve an “ecclesiastical” question. Although the merger agreement spelled out who would continue to serve as pastor and which entity would survive, neither of the parties, nor the court, relied on any theological or ecclesiastical principles to resolve the issue of whether the churches agreed to merge and whether Grace Presbyterian honored its commitment under the merger agreement.

Thursday, August 16, 2018

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.

Wednesday, August 15, 2018

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, GreensburgHarrisburg, Pittsburgh, and Scranton. The Pittsburgh Post-Gazette reports on the statement by Pennsylvania's attorney general upon release of the document.

Tuesday, August 14, 2018

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.