New Report On Perceived Discrimination Against Various Groups

Yesterday the Pew Research Center released its 2019 report (full text) on the extent to which the American public perceives that there is discrimination against various discrete groups.  While surveying perceived discrimination against 9 different groups, the report headlines increasing discrimination against Jews:

Today, 64% of Americans say Jews face at least some discrimination – a 20-percentage-point increase from 2016; the share saying Jews face “a lot” of discrimination has nearly doubled, from 13% to 24%.

The report also finds that 82% believe that there is at least some discrimination against Muslims.  50% believe there is at least some discrimination against Evangelical Christians (a rise of 8% over 2016).

Parents Sue Over NY Vaccination Order; One Child Care Facility Ordered Closed

Yesterday five mothers of children who claim religious exemptions from vaccination requirements filed suit in a New York state trial court challenging last week's emergency order by the New York City Health Department requiring everyone living or working in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt. (See prior posting.)  The complaint (full text) in C.F. v. New York City Department of Health and Mental Hygiene, (Kings Cty. Sup. Ct., filed 4/15/2019) contends:

There is insufficient evidence of a measles epidemic or dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination. The Orders are, therefore, arbitrary, capricious, contrary to law and in violation of petitioners’ rights under the United States Constitution and New York State law.

The complaint also contends that the Order ignores the risk of harm from compulsory vaccination.  Courthouse News Service reports on the lawsuit.

Meanwhile yesterday New York officials ordered a child care center in Williamsburg closed for failing to provide the Health Department access to medical and attendance records showing that the school is excluding unvaccinated children. (New York Times; Yeshiva World News).

SCOTUS Hears Arguments On Immoral Trademarks

Yesterday the U.S. Supreme Court heard oral arguments in Iancu v. Brunetti (transcript of oral arguments). At issue is whether Sec. 2(a) of the Lanham Trademark Act that prohibits registration of a trademark that contains "immoral" matter is invalid under the free speech provisions of the 1st Amendment.  Here is the SCOTUSblog case page for the case linking to all the briefs and other pertinent material. Mark Walsh at SCOTUSblog describes the case as an introduction to his entertaining summary of oral arguments:

The first case for argument today involves the highly provocative trademark, “FUCT,” for a line of “streetwear” founded by Erik Brunetti in California in 1990.

Washington Post also reports on the oral arguments.

Catholic Agency Sues Michigan Over Adoption Agency Non-Discrimination Policy

As previously reported, last month Michigan Attorney General Dana Nessel announced that the state has entered into a settlement agreement 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 the state that discriminates against same-sex couples or LGBTQ individuals otherwise qualified as foster care or adoptive parents.  Yesterday suit was filed in a Michigan federal district court by a Catholic adoption and foster care agency, and by some of its clients, challenging Michigan's new policy.  The complaint (full text) in Buck v. Gordon, (WD MI, filed 4/15/2019), contends that the new policy violates plaintiffs' 1st and 14th Amendment rights as well as RFRA. The Federalist reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Christian Legislative Prayers and Christian Nationalism, (Washington and Lee Law Review, Vol. 75, 2019).
• Christopher C. Lund, Martyrdom and Religious Freedom, (Connecticut Law Review, Vol. 50, p. 959, 2018 (symposium)).
• Levi Cooper, Polish Hasidism and Hungarian Orthodoxy in a Borderland: The Munkács Rabbinate, (Polin: Studies in Polish Jewry 31 (2019): 199-223 [pre-publication version]).
• Brendan Thomas Beery, Free Exercise Standing: Extra-Centrality As Injury In Fact, (St. John's Law Review, Forthcoming).
• Doug Magendanz, Church Power, Sovereignty and Freedom of Religion in Thomas Hobbes, (March 19, 2019).
• G. V. Mahesh Nath, Constitutional Morality - A Need for Consensus on the Concept, (March 16, 2019).
• Barton Beebe & Jeanne C. Fromer, Immoral or Scandalous Marks: An Empirical Analysis, (April 4, 2019).

From SmartCILP:

• Ann E. Blankenship-Knox & Brett A. Geier, Taking A Day Off to Pray: Closing Schools for Religious Observance in Increasingly Diverse Schools, 2018 BYU Education & Law Journal 89-139.
• Religious Exemptions and Harm to Others. Articles by Gary J. Simson, Carl H. Esbeck, Eric Segall, Arnold H. Loewy, Elizabeth Sepper, Christopher C. Lund, William P. Marshall, Kathleen A. Brady, Catherine A. Hardee, Micah Schwartzman, Nelson Tebbe, Richard Schragger. 106 Kentucky Law Journal 535-812 (2017-2018).
• John Eidsmoe, Those Ten Commandments: Why Won't They Just Go Away?, 31 Regent University Law Review 11-29 (2018-2019).
• Rodney W. Harrell, State Religious Free-Exercise Defenses to Non-Discriminatory Laws: Still Relevant fter Masterpiece Cakeshop, 87 UMKC Law Review 297-333 (2019).
• Stephen M. Feldman, Having Your Cake and Eating It Too? Religious Freedom and LGBTQ Rights, 9 Wake Forest Journal of Law & Policy 35-62 (2018).

Transgender Bathroom Issue In High School Leads To Protest and Reaction

The ongoing issue in public schools of allowing transgender students to use bathrooms of their choice has now created issues of how to treat student protests, self-help, and reactions to them. AP reports that a group of some seven boys at Alaska's North Pole High School went into the girl's bathroom to protest the use of the boys' bathroom by a transgender student who is transitioning from female to male.  A girl who was blocked from leaving the girl's bathroom kneed one of the seven boys, injuring him enough that he was sent to a hospital.  The girl was suspended from school and the seven boys were also disciplined.

DOJ Drops Appeal In FGM Case; Proposes Amendments To Federal Statutory Ban

AP reports that the Department of Justice has dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, saying it is not a commercial activity; it is a local criminal activity which should be left to the states to regulate. (See prior posting.) In a letter (full text) sent to Congress last Wednesday, Solicitor General Noel Francisco proposed amendments to the the federal law needed to assure its constitutionality:

[C]oncurrently with submitting this letter, the Department is submitting to Congress a legislative proposal that would amend Section 116(a) to provide that FGM is a federal crime when ( 1) the defendant or victim travels in or uses a channel or instrumentality of interstate or foreign commerce in furtherance of the FGM; (2) the defendant uses a means, channel, facility, or instrumentality of interstate commerce in connection with the FGM; (3) a payment is made in or affecting interstate or foreign commerce in furtherance of the FGM; (4) an offer or other communication is made in or affecting interstate or foreign commerce in furtherance of the FGM; (5) the conduct occurs within the United States' special maritime and territorial jurisdiction, or within the District of Columbia or a U.S. territory; or (6) the FGM otherwise occurs in or affects interstate or foreign commerce. In our view, adding these provisions would ensure that, in every prosecution under the statute, there is a nexus to interstate commerce.

The letter to the Senate Judiciary Committee was sent in compliance with 28 USC Sec. 530D which requires DOJ to report to Congress when it, among other things, decides not to appeal a decision affecting the constitutionality of a federal statute.

Retired Pope Benedict Weighs In On Clergy Sexual Abuse of Minors

This week, publications around the world published translations of an unusual essay from emeritus Pope Benedict XVI on the Church's clergy sex abuse crisis.  As reported by the Washington Post:

Breaking years of silence on major church affairs, Pope Emeritus Benedict XVI has written a lengthy letter devoted to clerical sex abuse in which he attributes the crisis to a breakdown of church and societal moral teaching and says he felt compelled to assist “in this difficult hour.”

The 6,000-word letter..., laments the secularization of the West, decries the 1960s sexual revolution and describes seminaries that became filled during that period with “homosexual cliques.”

The pope emeritus, in emphasizing the retreat of religious belief and firm church teaching, provides a markedly different explanation for the abuse crisis than that offered by Pope Francis, who has often said abuse results from the corrupted power of clergy.

Catholic News Agency has published the full text in English.

New York Legislature Passes Bill To Bar Employment Discrimination Based On Religious Attire

The New York State Legislature on Tuesday gave final passage to A4024 (full text) which adds to the state's anti-discrimination law a specific ban on employment discrimination because of a person's attire, clothing, or facial hair worn in accordance  with  the requirements  of  his  or her religion. The employer is excused from this obligation if reasonable accommodation is impossible. AP, reporting on the passage of the bill, says it was particularly supported by a coalition of Sikh houses of worship. [Thanks to Blog from the Capital or the lead.]

UPDATE: New York Gov. Andrew Cuomo signed the bill on Aug. 9.

EEOC 2018 Data Released

The EEOC yesterday released its 2018 Fiscal Year 2018 Enforcement and Litigation Data.  During the fiscal year, he EEOC resolved 90,558 charges of discrimination and retaliation. Of these, 2,859 (3.7%) involved charges of religious discrimination.

Judge Overrules Jury Saying No Religious Discrimination By Homeowners Association Was Shown

In Morris v. West Hayden Estates First Addition Homeowners Association, Inc., (D ID, April 4, 2019), an Idaho federal district judge enjoined a Christian couple from hosting an elaborate Christmas display that violates Homeowner Association Rules. As described by the Spokane Spokesman-Review's report on the decision:

On one side, a devoutly Christian couple throwing extravagant celebrations for thousands at a home decked to the halls with 200,000 light bulbs. At times, even featuring a camel and donkey to re-create the Nativity scene.

On the opposite side, a Hayden homeowners association with specific rules that prohibited such excessive celebrations – and the noise that follows – in favor of a more modest showing of holiday spirit.

Despite a jury verdict in favor of plaintiffs, the court ruled as a matter of law that plaintiffs had not shown that the Homeowners Association discriminated against them on the basis of religion in violation of the Federal Fair Housing Act.  Plaintiff had pointed to a letter from the Homeowners Association which described rule violations that would be involved in the Christmas display.  The letter added that some of the subdivision residents are non-Christians.  The court said in part:

While January 2015 Letter was not drafted with lawyerly precision and contained a boorish reference to “undesireables,” it cannot be read as evidence that the Homeowners Association intended to discriminate against Plaintiffs because they were Christian. On this score, the Court notes that several members of the Board were practicing Christians. Furthermore, Board President Jennifer Scott is both a practicing Christian and married to a Christian minister. The Court is not suggesting that Christians cannot, per se, discriminate against other Christians. But, the fact that the Board was at least partially composed of practicing Christians significantly decreases the probability that the Board intended to discriminate against Plaintiffs based on a faith shared by both Plaintiffs and several Board members.

The court concluded that the jury was likely prejudiced by testimony which they were instructed to ignore relating to threats received by plaintiffs from other homeowners who were not Association board members.  Because the decision is likely to be appealed, the court held that if its conclusion of law was reversed, defendants should be granted a new trial or alternatively the jury's award of $75,000 in damages should be reduced to $4.

Anti-Vax Movement Targets Ultra Orthodox Jews In New York

The New York Times in an article posted yesterday reports on the ways in which the anti-vaccination movement, particularly an organization known as Parents Educating and Advocating for Children's Health ("Peach"), is targeting ultra-Orthodox Jews in New York:

Peach’s handbook — with letters signed by rabbis and sections like “Halachic Points of Interest” — has become one of the main vehicles for misinformation among ultra-Orthodox groups, including Hasidim. Its message is being shared on hotlines and in group text messages.....

The majority of ultra-Orthodox rabbis said they ... urged vaccination, citing religious scripture about protecting one’s health and the health of others.

But all of that has not been enough to persuade vaccine skeptics....

Some Hasidim have said that longstanding tension between members of the ultra-Orthodox community and the government have made them wary of officials’ efforts to contain the outbreak.

The past persecution of the Jewish people is still a factor, they said. And more recently, quarrels with secular leaders over a circumcision ritual that has transmitted fatal herpes infections to infants and the government’s oversight of ultra-Orthodox Jewish private schools known as yeshivas have only soured relations.

In Settlement Airbnb Agrees To Allow Listing of West Bank Properties

In a press release yesterday, an Israeli civil rights group announced a settlement in  Sliber v. Airbnb, one of a number of suits challenging Airbnb's decision to delist rentals in Israeli settlements in the West Bank. (See prior posting). Apparently the policy was neverin fact implemented.  Under the Settlement Agreement (full text) Airbnb will modify it policies to allow listings of all properties in the area, subject to its Terms of Service.  Sidestepping conflicting claims over claims to the West Bank, the Settlement Agreement says in part:

Airbnb takes on position on the Host-Plaintiffs' claims, or others claims, to legal title to the properties on which the accommodations are located and its standard Terms of Service requires that every Host agree and warrant not to offer any accommodation on Airbnb's platform that the Host does not own or have permission to make available for booking.

Mandatory Measles Vaccinations Ordered In Brooklyn Neighborhood

The New York City Commissioner of Health yesterday declared a public health emergency and ordered everyone who lives, works or resides in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt (full text of order).  NBC News reports on the order.  The epicenter of the measles outbreak is in the ultra-Orthodox community of Williamsburg. Mayor Bill DeBlasio announced the order. According to a health department release:

Under the mandatory vaccinations, members of the City’s Department of Health and Mental Hygiene will check the vaccination records of any individual who may have been in contact with infected patients. Those who have not received the MMR vaccine or do not have evidence of immunity may be given a violation and could be fined $1,000.

This emergency declaration comes a day after the city health department ordered yeshivas in Brooklyn to exclude all unvaccinated students from classes, or else face possible closure.

House Holds Hearing On Hate Crimes and White Nationalism

The House Judiciary Committee today held a hearing on Hate Crimes and the Rise of White Nationalism. The full text of the prepared testimony of most of the witnesses, and a video of the full four hours of hearings are available on the committee's website.

Senate Will Investigate Yale's Application of Its Non-Discrimination Policy To Public Interest Stipends

Senator Ted Cruz, Chairman of the Constitution Subcommittee of the U.S. Senate Judiciary Committee told Yale Law School Dean Heather Gerken in a letter (full text) sent last week that the Subcommittee is opening an investigation into the Law School's recent extension of its non-discrimination policy to summer and post-graduate public interest fellowships and loan forgiveness for public interest careers. According to Yale Daily News, the move comes in reaction to the law school's announcement:

We recently decided that the Law School will require that any employment position it financially supports be open to all of our students. If an employer refuses to hire students because they are Christian, black, veterans, or gay, we will not fund that position.

The policy change came after negative reaction, particularly by LGBTQ groups, to the Federalist Society's speaking invitation to a lawyer from Alliance Defending Freedom. In his letter, Sen Cruz said in part:

[I]t appears that the policy arose from unconstitutional animus and a specific discriminatory intent both to blacklist Christian organizations like the Alliance Defending Freedom and punish Yale students whose values or religious faith lead them to work there.

UPDATE: Here is Yale Law School's response to Sen. Cruz's letter, emphasizing that its policy only applies to hiring practices, and not to policy objectives of the organization. [Thanks to Jim Oleske for this update item].

Recent Articles of Interest

From SSRN:

• L. Joe Dunman, The Devil in Recent American Law, (Pace Law Review, Forthcoming).
• Derek Ross, 'Intolerant and Illiberal'? Trinity Western University and its Implications for Charter Jurisprudence, ((2019) 89 Supreme Court Law Review (2d)).
• Paul H. Robinson, Codifying a Sharia-based Criminal Law in Developing Muslim Countries, (U of Penn Law School, Public Law Research Paper No. 19-15 (2019)).
• Meir Dan-Cohen, On the (Im)morality of the Death Penalty, (Berkeley Journal of Criminal Law, Vol. 23, 2018).
• I. Glenn Cohen, The Regulation of Reproduction and Best Interests Analysis, (The Oxford Handbook of Children and the Law (James G. Dwyer, ed. OUP, 2019)).
• Laura Portuondo, Abortion Regulation as Compelled Speech, (UCLA Law Review, Vol. 67, 2020).
• Jeremiah A. Ho, Queer Sacrifice in Masterpiece Cakeshop, (Yale Journal of Law & Feminism, Forthcoming).

State of Emergency To Combat Measles Ended By Court

As previously reported, in late March Rockland County, New York declared a state of emergency to combat a growing measles outbreak.  It banned any person under 18 who has not been vaccinated for measles from all places of public assembly. On April 3, a suit was filed in state court challenging the State of Emergency Declaration. The complaint (full text) in Doe v. Day, (Rockland Cty Sup. Ct., filed 4/3/2019), contended among other things that the Declaration will bar those with religious exemptions from vaccination requirements from celebrating Passover or Easter at their houses of worship. On Friday, a trial court judge agreed with plaintiffs.  Rockland/ Westchester Journal News reports in part:

A judge Friday halted Rockland County Executive Ed Day's emergency declaration barring children who are unvaccinated against measles from schools, places of worship and other public areas.

Acting state Supreme Court Judge Rolf Thorsen's injunction stated that the 166 cases cited by the county since the measles outbreak began last October did not rise to the level of an epidemic or constitute a disaster. Day's reliance on executive law in issuing the emergency declaration "may have been misplaced," the decision stated.

UPDATE: Here is the full text of the opinion in W.D. v. Rockland County,   (Rockland Cty. Sup. Ct., April 5, 2019) issuing a preliminary injunction against the emergency declaration. [Thanks to Eugene Volokh for the opinion.]

Clearing A Courtroom OK'd For Testimony By Muslim Woman With Uncovered Face

In Copper v. Superintendent of Sci-Greene, 2019 U.S. Dist. LEXIS 59150 (ED PA, April 2, 2019), a Pennsylvania federal magistrate judge recommended rejecting a claim of ineffective assistance of counsel brought by convicted murderer Tyreese Copper.  Copper argued that his counsel should have objected that the way in which the trial judge accommodated the religious concerns of a Muslim woman who was one of the prosecution witnesses violated his right to a public trial. The witness was wearing a burqa. The trial court judge insisted that she uncover her face so that the jury could assess her credibility. The judge however agreed to clear public spectators from the courtroom while she testified with her face cover removed.

No State Action In Denial of Club Leadership Position to Mormon High Schooler

In Ayers v. Fellowship of Christian Athletes, (ED CA, April 4, 2019), a California federal district court dismissed a religious discrimination suit filed under 42 USC Sec. 1983 against against the after-school non-curricular high school club, Fellowship of Christian Athletes ("FCA") and others involved with it.  FCA met on school grounds and was sponsored by a school teacher. Plaintiff Anne Ayers complains that she was denied a leadership position in FCA because of her Mormon faith.  The court held the fact the teacher and high school principal acquiesced in the denial is not enough to make the private parties involved "state actors."