DOD Issues Memo Implementing New Policy on Transgender Service In Military

On March 12, the Department of Defense issued Memorandum (DTM)-19-004 - Military Service by Transgender Persons and Persons with Gender Dysphoria  implementing the military's new policy limiting service in the military by transgender persons.  The new policy is effective April 12, 2019.  While there are special transition provisions for individuals who have enlisted before the effective date of the new policy, for future recruits, the following policy applies:

(1) A history or diagnosis of gender dysphoria is disqualifying unless:

(a) As certified by a licensed mental health provider, the applicant demonstrates 36 consecutive months of stability in the applicant’s biological sex immediately preceding submission of the application without clinically significant distress or impairment in social, occupational, or other important areas of functioning; and

(b) The applicant demonstrates that the applicant has not transitioned to his or her preferred gender and a licensed medical provider has determined that gender transition is not medically necessary to protect the health of the individual; and

(c) The applicant is willing and able to adhere to all applicable standards, including the standards associated with the applicant’s biological sex.

(2) A history of cross-sex hormone therapy or a history of sex reassignment or genital reconstruction surgery is disqualifying.

The DOD has created a special website explaining in clear language and diagrams the new policy. Washington Post reports on the new policy.

Cardinal Pell Sentenced By Australian Court To 6 Years In Prison On Sex Abuse Charges

As previously reported, last December a court in Australia convicted Catholic Cardinal George Pell on five counts of child sexual offenses dating back decades. As reported by CNN, yesterday the 77-year old Cardinal who was a top Vatican advisor was sentenced by the court to six years in prison.

6th Circuit En Banc Upholds Planned Parenthood Funding Cut-Off

In Planned Parenthood of Greater Ohio v. Hodges, (6th Cir., March 12, 2019), the U.S. 6th Circuit Court of Appeals, sitting en banc, by a vote of 11-6 upheld an Ohio law which cuts off state funding for Planned Parenthood. At issue was the cut-off of funding for two Planned Parenthood health centers because they are affiliated with an "entity that performs or promotes nontherapeutic abortions." The majority explained, in part:

As the district court saw it, the Ohio law imposes two unconstitutional conditions on Planned Parenthood. It denies the organization funding if it continues to perform abortions— what the court perceived to be a due process violation. And the law denies the organization funding if it continues to promote abortion—what the court perceived to be a free speech violation. To prevail, Planned Parenthood must show that both limitations—the conduct and speech requirements—violate the U.S. Constitution. Ohio may deny funding to Planned Parenthood in other words if either limitation satisfies the Constitution. Because the conduct component of the Ohio law does not impose an unconstitutional condition in violation of due process, we need not reach the free speech claim.

Judge White's dissent (joined by 5 others) argued:

The majority avoids this straightforward application of the unconstitutional-conditions doctrine primarily by adopting an unprecedented rule that abortion providers—entities that are necessary to ensure a woman’s right to safe abortions—cannot prevail in challenging the Statute. An abortion provider’s constitutional right may be derivative of the patient’s right—but it is a right nonetheless.

Politico reports on the decision. [Thanks to Tom Rutledge for the lead.]

False Light Invasion of Privacy Suit By Pastor Is Dismissed

In Byrd v. DeVeaux, (D MD, March 4, 2019), a Maryland federal district court dismissed on ecclesiastical abstention and ministerial exception grounds a false light invasion of privacy suit brought by Alicia Byrd, a pastor at an African Methodist Episcopal Church. Byrd sought over $14 million in damages for a report issued by the parent AME Church's Ministerial Efficiency Committee saying that she collateralized church property to build a non-profit facility without proper approval and for a letter alleging that she co-mingled church funds.  The court said in part:

Some of the independent  statements Plaintiff relies on are obviously fused with concepts of church law, polity, or doctrine, while others appear secular.... As a whole, the reports and letter constitute a matter of internal church discipline, and the statements contained within the documents are incapable of extrapolation from the overall ecclesiastical nature of the documents. Thus, Plaintiff's false light claim is barred by the ecclesiastical abstention doctrine....

Here, Plaintiff's claim is rooted in the MEC's disciplinary review of Plaintiff and decision that Plaintiff should be placed on administrative leave.... [T]he ministerial exception would apply to Plaintiff's false light claim and would provide an additional reason to grant summary judgment to Defendants.

DOE Will Not Enforce Ban On Religious Organizations As Contractors For "Equitable Services" Under Federal Grants

The Elementary and Secondary Education Act requires local educational agencies to include private schools in their federally funded programs to provide supplemental educational services to provide equitable, high-quality education for students from low-income families. School districts may contract with outside providers for various educational services, however under ESSA, the provider must be independent of any religious organization.  In a press release yesterday, the U.S. Department of Education announced that this restriction would no longer be enforced, saying in part:

The U.S. Department of Education, in consultation with the U.S. Department of Justice, determined the statutory provisions in Section 1117(d)(2)(B) and 8501(d)(2)(B) of the Elementary and Secondary Education Act (ESEA) that require an equitable services provider to “be independent of … any religious organization” are unconstitutional because they categorically exclude religious organizations based solely on their religious identity.

These provisions run counter to the U.S. Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) that, under the Free Exercise Clause of the First Amendment of the U.S. Constitution, otherwise eligible recipients cannot be disqualified from a public benefit solely because of their religious character.

The Department will, however, continue to enforce the statutory requirement that the outside services being provided are "secular, neutral and non-ideological."

Cert. Filed In Universal Church Trademark Case

A petition for certiorari was filed on March 4 in Universal Church, Inc. v. Toellner. (Full text of petition at 2019 U.S. S. Ct. Briefs LEXIS 831). In the case, the U.S. Second Circuit Court of Appeals rejected a claim that the Universal Life Church had infringed the trademark of the Universal Church.  In Universal Church, Inc. v. Toellner, (2d Cir. Nov. 2, 2018), the court held that the term  "Universal Church" is generic in referring to religious counseling and evangelistic and ministerial services.

Suit Challenges Vaccination Order

The Rockland Westchester Journal News reports that a federal court lawsuit has been filed by parents of 44 students who attend Green Meadow Waldorf School in Chestnut Ridge, New York challenging the Rockland County Health Commissioner's order excluding unvaccinated children from schools. According to the paper:

The lawsuit states that Commissioner Dr. Patricia Schnabel Ruppert's order, imposed during the county's continuing measles outbreak, violates the families' religious objections to vaccinations and is unnecessary because the cases have been largely confined to insular Hasidic Jewish communities.

UPDATE: On March 12, a federal judge denied a temporary injunction that would have allowed the 44 students to return to classes. (Rockland Westchester Journal News).

Recent Articles and Books of Interest

From SSRN:

• Pauline Ridge, Not-for-Profit Law and Freedom of Religion, (Matthew Harding (ed), Research Handbook on Not-for-Profit Law (Edward Elgar, Cheltenham, 2018) 284-303).
• Avishalom Westreich, Present-Day Posthumous Reproduction and Traditional Levirate Marriage: Two Types of Interactions, (Journal of Law and the Biosciences, Forthcoming).
• Howard Kislowicz, Religious Communications Privilege, (Forthcoming, Perspectives on Evidential Privileges, Dr. Christopher D.L. Hunt, ed (Toronto: Thomson Reuters, 2019)).
• Nathan B. Oman, 'We, The People of the Kingdom of God': Constitution Writing in the Council of Fifty, (The Council of Fifty: What the Records Reveal About Mormon History 55-72 (Matthew J. Grow & R. Eric Smith, eds. (2017)).
• Eric Heinze, No-Platforming and Safe Spaces: Should Universities Censor More (Or Less) Speech than the Law Requires?, (Croatian Political Science Review (December, 2018)).
• Christopher Sundby & Suzanna Sherry, Term Limits and Turmoil: Roe v. Wade's Whiplash, (Texas Law Review, Forthcoming).
• Eric Heinze, Review of: Alex Brown, Hate Speech Law: A Philosophical Examination, (International Dialogue, A Multidisciplinary Journal of World Affairs (2018)).
• Ihsan Yilmaz, Erdoğan’s Political Islamist Narrative and Radicalization of the Turkish Muslim Diaspora, (November 18, 2018).
• Nathan J. Brown, Who or What Is the Wali al-Amr: The Unposed Question, (Oñati Socio-Legal Series, Forthcoming).

Recent Books:

• Ellis M. West, The Free Exercise of Religion in America: Its Original Constitutional Meaning, (Palgrave Macmillan, 2019).
•  Anver M. Emon and Rumee Ahmed, eds., The Oxford Handbook of Islamic Law, (Oxford Univ. Press, Jan. 2019).
• Duncan Ryūken Williams, American Sutra: A Story of Faith and Freedom in the Second World War, (Harvard Univ. Press, Feb. 2019).

Suit Challenges Washington State's Required Abortion Coverage

Last week, a church in Washington state filed suit in federal district court challenging the constitutionality of Washington Senate Bill 6219 signed into law last March which requires all health care plans in the state to cover contraceptives and sterilization, and to cover abortion to the same extent as they cover maternity care.  The complaint (full text) in Cedar Park Assembly of God of Kirkland, Washington v. Kreidler, (WD WA, filed 3/8/2019), alleges in part:

52. ... [T]his law targets organizations that have religious and moral beliefs against abortion. Washington State has a history of targeting religious and moral pro-life organizations and individuals.

53. The strong statutory language, lack of any church exception, and anticipated evidence that pro-abortion groups assisted in drafting and enacting SB 6219, indicates that Washington and its officials deliberately targeted religious organizations and intentionally violated those organizations’ religious beliefs.

The suit alleges violations of the Free Exercise, Equal Protection and Establishment Clauses. ADF issued a press release announcing the filing of the lawsuit.

Recent Prisoner Free Exercise Cases

In Hill v. Palmer, 2019 U.S. Dist. LEXIS 30851 (WD NC, Feb. 26, 2019), a North Carolina federal district court dismissed an inmate's complaint that he was denied daily devotionals and religious materials from various ministries.

In Miller v. Acosta, 2019 U.S. Dist. LEXIS 30547 (CD CA, Feb. 26, 2019), a California federal magistrate judge dismissed with leave to amend a Wiccan inmate's complaint regarding his removal from the religious meal program.

In Whitely v. CDCR, 2019 U.S. Dist. LEXIS 30672 (ED CA, Feb. 25, 2019), a California federal magistrate judge recommended dismissing a suit by a Muslim inmate alleging denial of access to Islamic services and delay of religious services.

In Parson v. Pierce, 2019 U.S. Dist. LEXIS 31757 (D DE, Feb. 28, 2019), a Delaware federal district court dismissed Muslim inmates' complaints about the ban on possessing razors and inadequate Ramadan diets. Other claims were dismissed for failure to exhaust administrative remedies.

In Blast v. Fischer, 2019 U.S. Dist. LEXIS 32336 (WD NY, Feb. 28, 2019), a New York federal magistrate judge denied a motion for civil contempt brought by an inmate who practices Santeria alleging loss of religious property for which she had a religious permit by reason of a prior court order.

In Townsend v. Georgia, 2019 U.S. Dist. LEXIS 33080 (SD GA, March 1, 2019), a Georgia federal district court agreed with a magistrate's recommendation (2019 U.S. Dist. LEXIS 33205, Feb. 11, 2019) and dismissed as frivolous an inmate's incoherent complaint that, invoking "sovereign citizen" theory, argued that his religious rights as a Rastafarian have been violated.

Churches' Challenge To Required Abortion Health Care Coverage Rejected

In Foothill Church v. Rouillard, (ED CA, March 7, 2019). a California federal district court dismissed a suit brought by three churches challenging a ruling by the California Department of Managed Health Care that requires health insurance companies to include coverage for abortion services in all health insurance policies.  Rejecting the churches' Free Exercise claim, the court held that the churches have not alleged sufficient facts to call into question the defense that the ruling is a neutral law of general applicability. It also rejected the churches' equal protection claim saying that there was no showing that the state acted with the intent to adversely affect plaintiffs' religious beliefs.

Ministerial Exception Defense Rejected In Suit To Apply Labor Code To Preschool Teachers

In Su v. Stephen S. Wise Temple, (CA App., March 8, 2019), a California state appellate court held that teachers in a Reform Jewish Temple's preschool are not covered by the ministerial exception rule.  In the case, California's Labor Commissioner sued on behalf of 40 teachers alleging that the school violated the state's Labor Code by failing to provide rest breaks, uninterrupted meal breaks, and overtime pay.In rejecting the Temple's ministerial exception defense, the majority said in part:

Although the Temple’s preschool curriculum has both secular and religious content, its teachers are not required to have any formal Jewish education, to be knowledgeable about Jewish belief and practice, or to adhere to the Temple’s theology.  Further, the Temple does not refer to its teachers as “ministers” or the equivalent, nor do the teachers refer to themselves as such. Accordingly, we conclude the teachers are not “ministers” for purposes of the ministerial exception.

Presiding Judge Edmon filed a concurring opinion contending that the court need not reach the question of whether the teachers held "ministerial" positions, saying in part:

I would conclude that the Temple has not demonstrated that the ministerial exception has any application to the present dispute, which does not touch on the Temple’s freedom to choose its ministers or to practice its beliefs....

[T]he constitutional imperative against encroaching on a church’s selection of its ministers does not, as a logical matter, suggest that churches must be exempted from all laws that would regulate the employment relationship between a religious institution and its ministers. Given the number and variety of federal and state employment laws, it stands to reason that some laws will impose a greater burden on religious interests than will others. Accordingly, courts can, without doctrinal inconsistency, exempt churches from the application of some employment laws without exempting churches from all such laws.

French Cardinal Convicted of Covering Up Child Abuse Reports

In France on Thursday, Cardinal Philippe Barbarin, the Archbishop of Lyon, was convicted of failing to report child abuse to authorities.  As reported by the New York Times, in 2014 and 2015 parishioners told the Archbishop of abuse of dozens of Boy Scouts that took place in the late 1980's and early 1990's by one of his priests, Rev. Bernard Preynat. The Archbishop was given a 6-month suspended sentence and fined 45,000 Euros (over $50,000 U.S.). Five other church officials and employees tried with Cardinal Barbarin were acquitted. (Full text of judgment in French).

Yeshivas Sue In Challenge To New York's "Substantial Equivalency" Guidelines

Yesterday, a group of yeshivas, parents and other Orthodox Jewish organizations filed a state-court lawsuit challenging the New York State Education Department's recently adopted Substantial Equivalency Review and Determination Process. The new regulations are aimed at assuring that yeshivas, as well as other non-public religious and independent schools, comply with state law requiring them to offer an education substantially equivalent to that of public schools.  (See prior posting.)  The 50-page complaint (full text) in Parents for Educational and Religious Liberty In Schools, (Sup. Ct. Albany Cty. NY, filed 3/7/2019), alleges in part:

the NYSED’s New Guidelines would effectively frustrate the Petitioners’ constitutionally protected right to the free exercise of religion through a series of onerous requirements; would effectively frustrate the Petitioners’ constitutionally protected free speech rights by dictating what can and cannot be taught in yeshivas; would effectively frustrate the Petitioners’ constitutionally protected due process right to control the upbringing and the education of their children, as recognized by Pierce v. Society of Sisters, 268 U.S. 510 (1925), and Meyer v. Nebraska, 262 U.S. 390 (1923); and would hamper and inhibit the educational system that is central to Petitioners’ way of life, raising issues similar, and relevantly indistinguishable, to those addressed by the United States Supreme Court in Wisconsin v. Yoder, 406 U.S. 205 (1972).

The suit challenges the Guidelines on other state law grounds as well. Yeshiva World reports on the lawsuit.

A Few Iranian Christian Refugees Admitted To U.S.; Many Others Await Visas

NBC News reports that U.S. authorities have recently allowed about a dozen Armenian Christian refugees from Iran admission under the Lautenberg-Specter law that provides for visas for persecuted religious minorities from the former Soviet Union and Iran.  The refugees were admitted after a federal judge last July ordered the Department of Homeland Security to provide the reasons for denial of applications from 87 Iranian refugees waiting in Vienna for their visas to be processed. (See prior posting.) NBC reports in part:

Under Trump, the Lautenberg-Specter program has virtually ground to a halt for Iranians. The program includes what used to be a short processing stay in Vienna, but more than 70 Iranian applicants, mostly Christians, have been stuck in Austria for more than two years, their lawyers said. In the past, applicants would be granted U.S. visas after a period of few months in Austria, according to the lawyers and former U.S. officials.

Applicants in Ukraine and other former Soviet states have been admitted without major delays, humanitarian groups said....

 "The increased denial rate was not due to the president’s executive orders but to changes in vetting implemented in 2016," the [State Department] spokesperson said in an email, adding that new applications were still being accepted....

The number of Christian refugees admitted to the United States declined by about 36 percent in fiscal year 2018 compared to the previous year.... The drop is part of a broader decline in overall refugee admissions.

Utah Legislature Repeals Ban On Fornication

On Wednesday, the Utah state legislature gave final passage to S.B.43 (full text) and sent it to the governor for his signature. The bill, which enacts several amendments to the state's Criminal Code includes a repeal of Sec. 76-7-104, Utah's prohibition on fornication.  Fox 13 News reports on the legislature's action. [Thanks to Scott Mange for the lead.]

House Passes Resolution Condemning Anti-Semitism, Islamophobia and Other Bigotry

Yesterday, the U.S. House of Representatives by a vote of 407-23 passed House Resolution 183 (full text) condemning anti-Semitism, anti-Muslim discrimination and bigotry against other minorities as contrary to the values that define the people of the United States. New York Times reports on the complicated history of the 7-page resolution, saying in part:

It started as a resolution condemning anti-Semitism. Then, anti-Muslim bias was added in. After that came white supremacy. And by the end, it cited “African-Americans, Native Americans, and other people of color, Jews, Muslims, Hindus, Sikhs, immigrants and others” victimized by bigotry.

The resolution condemning “hateful expressions of intolerance,” which passed the House by an overwhelming 407-to-23 vote Thursday afternoon, was as much a statement of Democrats’ values as their factionalism. Caught in the middle was Speaker Nancy Pelosi, who worked for days to quell the internal uproar that erupted after a freshman Democrat, Representative Ilhan Omar of Minnesota, insinuated that backers of Israel exhibit dual loyalty....

Republicans mocked its all-inclusive approach....  Some veteran Jewish Democrats, who had pushed for a measure that would solely condemn anti-Semitism, were equally dismayed.

Challenge to Florida City's Conversion Therapy Ban May Move Forward

In Vazzo v. City of Tampa, (MD FL, March 5, 2019), a Florida federal district court adopted a magistrate's recommendations (Jan. 30, 2019) concluding that plaintiffs had stated plausible free speech challenges, but dismissed plaintiffs' free exercise challenges, to Tampa, Florida's ban on providing conversion therapy to minors.  The court allowed plaintiffs to move ahead with claims that the ordinance is content-based, amounts to viewpoint discrimination and a prior restraint, and that it is unconstitutionally vague and overbroad.  It also allowed plaintiffs to move ahead with claims that the ordinance violates the right of their minor clients and constituents to receive information.  Plaintiffs also stated a plausible implied pre-emption claim under state law.

Ilhan Omar's Anti-Semitic Tropes Focus Debate

Vox yesterday posted a lengthy analysis of the growing expressions of anti-Semitism in the United States in an article titled The Ilhan Omar Anti-Semitism Controversy, Explained, saying in part:

It’s true that Omar’s comments on Israel keep falling into well-worn anti-Semitic tropes — and her defenders often prove too willing to paper this over and dismiss criticism from even progressive Jews as “smears.”

It’s also the case that Republican officials frequently call on anti-Semitic tropes and say worse about other minority groups without nearly so much bipartisan condemnation. Pushing for a House vote on anti-Semitism really did feel like unfairly singling out Omar — and whitewashing the GOP’s record in the process. That’s why progressives rallied to Omar’s defense, and why the Democratic leadership has been forced to reconsider its initial resolution.

In short, the entire situation is a mess — and an example of how difficult it is for Democrats to carry on an important conversation about anti-Semitism on the left without downplaying the far more pressing problem of anti-Semitism on the right.

3rd Circuit Hears Oral Arguments In Fair Housing Act Challenge To Sex-Segregated Pool Hours

On Tuesday, the U.S. 3rd Circuit Court of Appeals heard oral arguments in Curto v. Country Place Condominium Association, Inc. (audio of full oral arguments). As reported by Courthouse News Service, at issue is whether a New Jersey condominium association's sex-segregated swimming pool hours, instituted to accommodate the condos' large Orthodox Jewish population, violate the federal Fair Housing Act.