Pope Issues New Law On Reporting of Sex Abuse of Minors and Vulnerable Adults In Vatican

On March 26, Pope Francis promulgated Law N. CCXCVII on the Protection of Minors and of Vulnerable Persons of Vatican City State.  It requires any public official of the Vatican City State who has information or a well-founded belief that a minor or other vulnerable person is the victim of abuse is required to report it to authorities, except for information obtained in the sacrament of confession. According to the Catholic Register:

While few minors are resident in Vatican City State, there are minors in the Sistine Chapel Choir, and there is a pediatric hospital and a minor seminary under Vatican City State jurisdiction....

The new law will now cover all forms of physical and emotional abuse -- not just sexual violence through coercion — as well as serious forms of mistreatment, neglect, abandonment and exploitation against minors, who are below the age of 18, and vulnerable adults.

As reported by AP:

According to the new Vatican definition, a vulnerable person is anyone who is sick or suffering from a physical or psychiatric deficiency, isn’t able to exercise personal freedom and has a limited capacity to understand or resist the crime.

The issue of whether “vulnerable people” can include seminarians, religious sisters or other adults who are emotionally dependent on clergy has come to the fore in the wake of the scandal over ex-Cardinal Theodore McCarrick, a once high-ranking American cleric who molested seminarians, and revelations of priests and bishops around the world sexually preying on nuns.

The new law covers all personnel who live in or work for the Vatican and any abuse that occurs in the Vatican, the 44-hectare (110-acre) city state in the center of Rome and its other territories, as well as the Holy See’s vast diplomatic corps.

The Vatican’s own ambassadors have figured in some of the most scandalous cases of sex abuse in recent years...

SNAP, an organization supporting clergy abuse victims, issued a press release generally reviewing the Vatican's action favorably, but complaining that the law requires reporting to internal Vatican officials rather than to independent secular law enforcement officials.

Brunei Further Implements Its Sharia Penal Law-- The Details

There has been extensive coverage in the press in recent days regarding the Sultan of Brunei's further implementation of Sharia law in his southeast Asian nation.  Press coverage has focused on implementation of the provisions on stoning for the offences of adultery and homosexual sex. (CNN, ABC). Here is a closer look at the legal steps the nation has taken.

In 2013, Brunei adopted Syariah Penal Code Order, 2013 (full text). The law was to be implemented in stages, beginning with crimes involving only jail terms. Last December, the Ministry of Religious Affairs published a Notice (full text) of the remaining provisions that will go into effect April 3.  These are provisions in Chapter I of the law imposing Sharia penalties, among other things, for theft offenses (Sariqah, Hirabah), adultery (Zina), rape (Zina Bil-Jabar), sodomy (Liwat), apostasy (Irtidad), and drinking intoxicating liquors. Section 94 on pregnancy out of wedlock was excluded from the provisions taking effect.

A new Criminal Procedure Code (full text) was also ordered effective as of January 1, 2019.

Pastor's Convictions For Corrupting Minors Dismissed

Christian Chronicle reports on a March 18, 2019 decision by a Pennsylvania trial court judge vacating a long-time Church of Christ youth minister's convictions for corruption of minors and indecent exposure.  Clyde Brothers, Jr. had been sentenced to five years in prison for showing pornographic movies and performing lewd acts in front of church boys. Granting a post-trial motion, however, the court held that the state's statute of limitations barred the prosecution.

Supreme Court Says Inmate Is Entitled To His Spiritual Adviser In Execution Chamber

Late last night, the U.S. Supreme Court, by a 7-2 vote, ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution, scheduled for last night, was carried out. A Texas federal district court had upheld the decision of prison authorities to allow only the prison's Christian chaplain to be in the room with Murphy. His Buddhist clergyman could be in the adjacent viewing room. (See prior posting.) In Murphy v. Collier, (Sup. Ct., March 28, 2019), the U.S. Supreme Court held:

The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.

Justices Thomas and Gorsuch voted against granting a stay of execution. Justice Kavanaugh filed a concurring opinion, saying in part:

For this kind of claim, there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.... [T]here are operational and security issues associated with an execution by lethal injection. Things can go wrong and sometimes do go wrong in executions, as they can go wrong and sometimes do go wrong in medical procedures. States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.

....What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.

The case moved through the Supreme Court rapidly. The district court's decision was handed down on March 26. A petition for a stay was filed and on March 28 Becket filed a 22-page amicus brief with the Supreme Court.  According to Becket, the Supreme Court's decision was handed down two-and-one-half hours after the scheduled start of the execution.

Court Enjoins Obama-Era Contraceptive Mandate Accommodation

In Dobson v. Azar, (D CO, March 26, 2019), a Colorado federal district court reopened proceedings in a case challenging Obama-era Affordable Care Act accommodation for religious non-profits and granted a permanent injunction against their enforcement to the extent they require insurance coverage for drugs or procedures "that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother." The suit by James Dobson and Family Talk was one of a large number of challenges to regulations that required religious non-profits that wished to opt out of the mandate for contraceptive coverage to complete an exemption form that had the effect of triggering coverage directly from the organization's insurer. The Trump administration promulgated Interim Final Rules creating a broader exemption. However multiple lawsuits have been filed challenging this broader exemption and two courts have issued preliminary injunctions against their enforcement.  The court concluded:

Given the uncertainty presented by the legal challenges to the IFR, I find and conclude that a permanent injunction is proper.

Colorado Springs Gazette reports on the decision.

Iowa Governor Signs Campus Free Speech Bill

Yesterday, Iowa Governor Kim Reynolds signed SF 274 (full text), a bill that is designed to protect free speech at public universities. The new law requires the state Board of Regents and the board of each community college to adopt an extensive policy to protect speech and expression. Among other things, it bars public universities from limiting non-commercial speakers to a free-speech zone.  As reported by Iowa State Daily, the section of the new law that has raised the most controversy is Section 3(3) which prohibits denying benefits to a student organization because it requires that its leaders agree to and support the organization's beliefs as interpreted by the organization.  This presumably allows religious organizations that oppose same-sex relations to bar members of the LGBTQ community from leadership positions.

9th Circuit: Sikh Asylum Applicant Did Not Show Past Persecution

To qualify for asylum as a refugee, an individual must show either past persecution or a well-founded fear of future persecution. (8 CFR 1208.13). In Singh v. Barr, (9th Cir., March 25, 2019), the U.S. 9th Circuit Court of Appeals held in a 2-1 decision that a citizen of India had shown neither. Amaneep Singh, a Sikh, approached members of the Dera Sacha Sauda at one of their recruitment meetings to stop them from criticizing Sikhism. He was chased out of the event. Two months later Dera Sacha Sauda members encountered Singh alone and beat him.  When Singh approached police, they demanded a 25,000 rupee bribe to help him. the majority concluded:

Because Singh’s evidence showed only that the police demanded a bribe on one occasion, the evidence does not compel a finding that the government was unable or unwilling to control the people who attacked him, and therefore does not compel a finding of past persecution....

Singh’s attackers were part of Dera Sacha Sauda, a small religious minority active in only some regions of India. There is no reason to think that Singh is at future risk from a group with such limited influence because he is a Sikh.

Judge Watford dissented saying in part:

Members of another religious faith told Singh to abandon his religion and join their own. When he refused to disavow his faith, they beat him until he was unconscious, hospitalizing him for two weeks. When he went to the police for help, they refused to help him unless he paid a bribe, which was more than he could afford to pay. The majority errs by concluding that these facts do not establish past persecution.

San Francisco Chronicle reports on the decision.

Christian School Challenges Zoning Requirement

A suit was filed this week in a Florida federal district court challenging the denial of a zoning exception that would allow continued operation of a small Christian school that serves primarily children with learning disabilities and children from underprivileged homes. The complaint (full text) in Englewood Church of the Nazarene, Inc. v. Sarasota County, Florida, (MD FL, filed 3/25/2019), alleges violations of RLUIPA, the 1st and 14th Amendments and Florida's Religious Freedom Restoration Act. After the school had been operating in a church's building for more than three years, the county demanded that it seek a special exception to continue its operation and levied daily fines on the school. The school spent $10,000 to complete the application, only to have the special exception denied. ADF issued a press release announcing the filing of the lawsuit.

N.C. 20-Week Abortion Ban Partially Enjoined

In Bryant v. Woodall, (MD NC, March 25, 2019), a North Carolina federal district court enjoined enforcement of North Carolina's ban on abortions during or after the 20th week of pregnancy to the extent that the ban covers pre-viability abortions. Washington Post reports on the decision.

Another Death Row Inmate Denied Chaplain of His Choice During Execution

Last month in a widely publicized decision the U.S. Supreme Court  vacated the the stay of execution that had been granted the day before by the U.S. 11th Circuit Court of Appeals to a Muslim inmate who wanted to have his Imam instead of the Christian prison chaplain with him in the execution chamber. (See prior posting). Yesterday a Texas federal district court dealt with a similar request from a Buddhist inmate, and similarly denied a stay of execution because the inmate had waited too long to assert his objections. In this case the prisoner had the option of having a Christian prison chaplain or no chaplain present.  In Murphy v. Collier, (SD, TX, March 26, 2019), the court said in part:

Murphy gave TDCJ little time to decide whether to vary its policy. And Murphy gave TDCJ little time to litigate any legal challenge that would follow. Once informed that TDCJ would not deviate from its policy, Murphy waited over two weeks to file litigation in state court. He filed this action only two days before his execution.

"Given the State's significant interest in enforcing its criminal judgments . . . there is a strong equitable presumption against the grant of a stay where a claim could have been brought at such a time as to allow consideration of the merits without requiring entry of a stay."

Murphy's execution is set for tomorrow.

Rockland County Declares State of Emergency In Measles Outbreak

Rockland County, New York, which is battling a measles outbreak, has issued a 30-day county-wide Sate of Emergency Declaration (full text) banning any person under 18 who has not been vaccinated for measles from all places of public assembly. The Declaration defines the scope of the ban:

A place of public assembly shall be a place where more than 10 persons are intended to congregate for purposes such as civic, governmental, social, or religious functions, or for recreation or shopping, or for food or drink consumption, or awaiting transportation, or for daycare or educational purposes, or for medical treatment. A place of public assembly shall also include public transportation vehicles, including but not limited to, publicly or privately owned buses or trains, but does not include taxi or livery vehicles.

The county previously excluded all unvaccinated minors for schools.  (See prior posting.) Yesterday Rockland County issued a press release announcing the action. Gizmodo reporting on the ban says in part:

In the case of the Rockland outbreak, it’s thought the original carriers caught measles while visiting Israel. According to health officials, more than 80 percent of local cases have occurred among the unvaccinated. These cases have been concentrated among segments of the Orthodox Jewish community.

Recent Prisoner Free Exercise Cases

In Smith v. Drawbridge, (10th Cir., March 18, 2019), the 10th Circuit affirmed the dismissal of an Orthodox Jewish inmate's complaint that he received only a cold sack meal rather than a hot meal at the conclusion of the Fast of Tammuz.

In Newsome v. Fairley, 2019 U.S. Dist. LEXIS 39138 (SD MS, March 12, 2019), a Mississippi federal district court adopted in part a magistrate's recommendations (2019 U.S. Dist. LEXIS 40431, Jan. 28, 2019) and allowed an inmate who professed the Natsarim Faith to move ahead against two defendants on his complaint that he was denied a yeast free diet during Passover, and was denied immersion baptism and religious counseling.

In Wilson v. Virginia Department of Corrections, 2019 U.S. Dist. LEXIS 41528 (ED VA, March 13, 2019), a Virginia federal district court dismissed a hearing impaired inmate's contention that his religious exercise was substantially burdened when officials refused to permit him to purchase a larger TV set so he can view religious programming with large closed captioning. His equal protection claim was not dismissed.

In Howard v. Polley, 2019 U.S. Dist. LEXIS 41696 (D NV, March 13, 2019), a Nevada federal district court dismissed an inmate's complaint about different treatment of Muslim prisoners growing out of a shortage of imams to conduct Jumu'ah services in multiple housing modules.

In Arboleda v. O'Banion, 2019 U.S. Dist. LEXIS 41907 (ED CA, March 14, 2019), a California federal magistrate judge dismissed with leave to amend an inmate's complaint that on one occasion he was denied access to a Jehovah's Witness religious service.

In Abreu v. Farley, 2019 U.S. Dist. LEXIS 42801 (WD NY, March 15, 2019), a New York federal district court dismissed the portion of an inmate's 531 paragraph complaint claiming that he is Jewish and is entitled to be served "Kosher loaves." The court concluded that plaintiff's beliefs were not sincerely held.

In Brandon v. Royce, 2019 U.S. Dist. LEXIS 42807 (SD NY, March 15, 2019), a New York federal district court rejected an inmate's claim that his free exercise rights were infringed when he did not receive a purportedly promised feed-in meal in exchange for his voluntarily not attending an oversubscribed Eid Celebration.

In Carawan v. Solomon, 2019 U.S. Dist. LEXIS 43609 (ED NC, March 18, 2019), a North Carolina federal district court allowed a Muslim inmate to move ahead with his complaint that his requests were denied for congregational prayer beyond just Friday Jumu'ah services. The court dismissed his complaint that the prison had no Zakat fund that would eliminate the administrative fee for him to done funds to charity.

Churches Withdraw Suit Against Austin's Non-Discrimination Ordinance.

Last week, plaintiffs in U.S Pastor Council v. City of Austin, (WD TX, March 19, 2019) filed a Notice of Dismissal of their lawsuit challenging Austin's anti-discrimination ordinance protecting against employment discrimination on the basis of sexual orientation or gender identity. Plaintiffs argued that the ordinance infringes the rights of churches that will not hire women as senior pastors, or practicing homosexuals or transgendered individuals for any church position (See prior posting.) As reported by the Austin Statesman, the city had argued urged dismissal of the suit on standing and other grounds. (Motion to dismiss.)

Consent Decree Defines Protected Anti-Abortion Activity

A consent decree (full text) was issued last week in Zastrow v. City of Toledo, (ND OH, March 19, 2019), enjoining the city of Toledo, Ohio from enforcing various City Code provisions against anti-abortion demonstrators engaged in non-obstructive, expressive activity on public sidewalks and medians outside a Toledo abortion clinic. The decree included a detailed description of the kind of expressive activities that are protected:

3. The “non-obstructive, expressive activity of pro-life demonstrators” ... includes activity protected by the First Amendment, including, but not limited to unamplified prayer, preaching, worship, singing worship songs, playing worship songs with instruments such as the acoustic guitar and violin, holding pro-life signs, distributing literature, and engaging passersby with their pro-life message.

4. The parties agree that the term “non-obstructive, expressive activity” means activity protected by the First Amendment that does not physically prevent a pedestrian from using a public sidewalk or other public way or that does not physically impede a vehicle from traveling on a public road or street. This does not mean that the person or persons engaging in the First Amendment activity must be moving all the time. Additionally, the First Amendment activity is not “obstructive” because a pedestrian might have to walk around the person engaging in the expressive activity. It is only “obstructive” when the person engaging in the First Amendment activity physically prevents a pedestrian from using the public sidewalk or prevents a vehicle from entering onto the premises....

Christian Post reports on the consent decree.

In Settlement Agreement, Michigan Will Enforce LGBTQ Non-Discrimination Provisions Against Religious Adoption Agencies

As previously reported, last September a Michigan federal district court in Dumont v. Lyon held that same-sex couples can move ahead with their Establishment Clause and equal protection claims against the Michigan Department of Health and Human Services (MDHHS) for permitting child placing agencies receiving state funds to use religious criteria to deny them services. Last Friday, Michigan Attorney General Dana Nessel announced that the state has entered into a settlement agreement (full text) (summary) that calls for the state to enforce non-discrimination provisions in agreements with foster care and adoption agencies.  The settlement applies to any agency contracting with MDHHS that discriminates against same-sex couples or LGBTQ individuals otherwise qualified as foster care or adoptive parents for any child accepted by the agency under a contract with MDHHS. These child placement agencies may not turn away or refer to another agency, or refuse to place a child with, an otherwise potentially qualified LGBTQ individual or same-sex couple. However a child placement agency may refuse for any reason to accept a referral from MDHHS of any particular child.

Recent Articles of Interest

From SSRN:

• Nathan B. Oman, John Calvin’s Quarrel with Civil Recourse Theory, (Christianity and Private Law, Robert Cochran & Michael Moreland, eds. (Cambridge, UP Forthcoming)).
• Anna Su, Establishment, (Law, Religion, USA (Joshua Dubler & Isaac Weiner eds., NYU Press, 2019)).
• Kent Greenfield, Brief for Professor Kent Greenfield As Amicus Curiae in Support of Respondents, State of Washington vs. Arlene's Flowers and Ingersoll vs. Arlene's Flowers, (Boston College Law School Legal Studies Research Paper No. 500 (March 2019)).
• Marc O. DeGirolami, The Traditions of American Constitutional Law, (Notre Dame Law Review, Forthcoming).
• Bret Matera, Divining a Definition: ‘Substantial Burden’ in the Penal Context Under a Post-Holt RLUIPA, (Columbia Law Review, Forthcoming).
• Stijin Smet, Conscientious Objection through the Contrasting Lenses of Tolerance and Respect, (Oxford Journal of Law and Religion (2019)).
• Roger Colinvaux, Fixing Philanthropy: A Vision for Charitable Giving and Reform, (Tax Notes, Vol. 162, No. 9, p. 1007, 2019).

From SSRN (non-US Law):

• Asim Jusic, An (Un)Exceptional Case: Strasbourg’s Court Reserved Nod to Religious Symbols in the Courtroom, (Forthcoming in Oxford Journal of Law and Religion (2019)).
• Radley Henrico, Proselytising the Regulation of Religious Bodies in South Africa: Suppressing Religious Freedom?, (Potchefstroom Electronic Law Journal, Vol. 22, 2019).
• Paul Johnson, The 'Gay Cake' Case - Lee (Respondent) v Ashers Baking Company Ltd and Others (Appellants) (Northern Ireland) [2018] UKSC 49, (February 27, 2019).
• Abu Umar Faruq Ahmad, Aishath Muneeza, Mohammad Omar Farooq & Rashedul Hasan, Post-Default Sukuk Restructuring: An Appraisal of Shari’ah Issues , (in Hassan, M. K. and Rashid, M. (eds.). Management of Islamic Finance Principle, Practice, and Performance, International Finance Review, Emerald Publishing, Volume 19, 113, Forthcoming).
• Puranjay K. Vedi, Working Paper: Tracing Burqa in Byzantine Christianity, (October 1, 2018).

From elsewhere:

• USCIRF, Legislation Fact Sheet, Anti-Extremism Laws, (March 2019).

Firefighter Not Entitled To Religious Exemption From Grooming Policy

In Smith v. City of Atlantic City, (D NJ, March 22, 2019), a New Jersey federal district court upheld the refusal by the Atlantic City Fire Department to grant a long-time employee a religious exemption from the Department's grooming policy.  Plaintiff is an African American male and a Christian who has recently decided to grow a 3-inch beard as an expression of his religious faith. Rejecting plaintiff's application for a temporary restraining order, the court concluded that he was unlikely to succeed on the merits of his free exercise, equal protection or Title VII claim.

Break-Away Moves By Methodist Congregation Are Invalid

In Laumalie Ma'oni'oni Free Wesleyan Church of Tonga v. Ma'afu, (UT App, March 21, 2019), a Utah state appellate court held that a mail-in vote to change the articles of incorporation of the Tongan United Methodist Church (TUMC) was invalid.  The amendments purported to break the congregation away from the parent United Methodist Church (UMC). The mail vote did not comply with the governance requirement of UMC's Book of Discipline which was incorporated by reference into TUMC's articles of incorporation.  Rejecting constitutional challenges, the court said in part:

[T]he district court’s interpretation and application of the Discipline was constitutionally sound. In resolving the dispute, the court looked to the corporation’s governing documents, “without inquiring into matters of church doctrine.” The Discipline requires any meeting of the Charge Conference or the Church Conference to be presided over and called by the district superintendent. The Discipline does not authorize mail-in voting....

Free Wesleyan argues that these matters relate to “faith and doctrine.” We disagree. Whether a corporate meeting must be called and presided over by a certain person and whether voting members must be present at a meeting are not matters of religious doctrine or faith.

Court Dismisses Suit Challenging Church's Internal Investigation

In Williams v. Kingdom Hall of Jehovah's Witnesses, (UT App, March 21, 2019), a Utah state appellate court upheld the dismissal of an intentional infliction of emotional distress claim brought by a member of the Jehovah's Witnesses against church bodies and individuals.  At issue was the manner in which a judicial committee of the Church conducted an investigation into plaintiff Ria Williams sexual conduct.  The court said in part:

In the summer of 2007, Williams met another Jehovah’s Witnesses congregant (“Church Member”). Williams and Church Member began seeing each other socially, but the relationship quickly changed and throughout the rest of the year Church Member physically and sexually assaulted Williams, who was a minor....

After questioning Williams about her sexual conduct, the Elders played an audio recording of Church Member raping Williams. Church Member recorded this incident and gave it to the Elders during their investigation of Williams. The recording was “several hours” in length. Williams cried and protested as the Elders replayed the recording. The Elders played the recording for “four to five hours” stopping and starting it to ask Williams whether she consented to the sexual acts. During the meeting Williams was “crying and physically quivering.” Williams conceded she was able to leave but risked being disfellowshipped if she did....

Allowing Williams’s claims in this case to be litigated would require the district court to unconstitutionally inject itself into substantive ecclesiastical matters. Williams argues she is not challenging the Church’s ability to determine what constitutes “sinful behavior”.... But Williams asks the factfinder to assess the manner in which the Church conducted a religious judicial committee, which requires it to assess religiously prescribed conduct....

We conclude Williams’s claim for IIED requires an inquiry into the appropriateness of the Church’s conduct in applying a religious practice and therefore violates the Establishment Clause of the First Amendment.

President Trump Issues Executive Order On Campus Free Speech

President Trump yesterday signed Executive Order on Improving Free Inquiry, Transparency, and Accountability at Colleges and Universities. (Full text). In lengthy remarks (full text) delivered by the President at the signing ceremony for the Executive Order, Trump emphasized the protection of religious speech.  He  introduced three students at the ceremony.  One, the president of Students for Life at Miami University, was required to post "trigger warnings" about a display of wooden crosses representing lives of the unborn. Another student from the University of Nebraska reported she was cursed at by staff and an instructor while standing at a table representing a conservative campus group. A third student from Northeast Wisconsin Technical College was told she was restricted to the campus free speech zone to hand out Valentine cards with messages such as "You are special" and "Jesus loves you."

President Trump said in part:

Today, we are delivering a clear message to the professors and power structures trying to suppress dissent and keep young Americans — and all Americans, not just young Americans like Ellen and Kaitlyn and Polly — from challenging rigid, far-left ideology.  People who are confident in their beliefs do not censor others — we don’t want to censor others — they welcome free, fair and open debate.  And that’s what we’re demanding.

Under the policy I am announcing today, federal agencies will use their authority under various grant-making programs to ensure that public universities protect, cherish — protect the First Amendment and First Amendment rights of their students, or risk losing billions and billions of dollars of federal taxpayer dollars.

The Executive Order itself, however, is vaguer, saying:

It is the policy of the Federal Government to: (a)  encourage institutions to foster environments that promote open, intellectually engaging, and diverse debate, including through compliance with the First Amendment for public institutions and compliance with stated institutional policies regarding freedom of speech for private institutions;....

To advance the policy described in subsection 2(a) of this order, the heads of covered agencies shall, in coordination with the Director of the Office of Management and Budget, take appropriate steps, in a manner consistent with applicable law, including the First Amendment, to ensure institutions that receive Federal research or education grants promote free inquiry, including through compliance with all applicable Federal laws, regulations, and policies.

Much of the Executive Order is devoted to other issues-- primarily transparency regarding the cost of college and student borrowing.