Early Analysis of Supreme Court's Bladensburg Cross Ruling

Here are some early commentaries on yesterday's U.S. Supreme Court decision in American Legion v. American Humanist Association:

• Amy Howe, Justices Allow "Peace Cross" To Stand
• Harvey Weiner, The Cross May Stand, Though It Offends
• Ira Lupu and Robert Tuttle, A Splintered Court Leaves the Bladensburg Cross Intact
• Adam Bonin, Supreme Court Effectively Grandfathers In Most Older Religious Displays On Public Land

9th Circuit Lifts Injunctions On Title X Abortion Counseling Ban

In State of California v. Azar, (9th Cir., June 20, 2019), the U.S. 9th Circuit Court of Appeals granted a stay of the injunctions that had been issued by three district courts that had prevented Trump Administration regulations on family planning grants from going into effect. As described by the court:

Under the Final Rule, Title X grantees are prohibited from providing referrals for, and from engaging in activities that otherwise encourage or promote, abortion as a method of family planning.... Providers are required to refer pregnant women to a non-abortion prenatal care provider, and may also provide women with a list of other providers (which may not be composed of more abortion providers than non-abortion providers). 

Relying on a 1991 Supreme Court decision the 9th Circuit concluded that the Final Rule is a reasonable interpretation of Title X, and that two intervening laws did not change that conclusion. CBS News, reporting on the decision, points out that the new regulations also ban clinics that receive federal funds from sharing office space with abortion providers-- a provision apparently aimed at Planned Parenthood which says it will seek reconsideration of the decision by the 9th Circuit.

Court Rejects Free Exercise Defense To Infliction of Emotional Distress Claim

In Lawrence v. Treybig, (TX App., June 20, 2019), a Texas state appeals court affirmed a trial court jury's award of nominal damages and a permanent injunction against Arthur Lawrence who had been hired by a wealthy family as a basketball coach for their son, Cody Treybig, when he was nine years old. Lawrence remained in that position for six years during which time he convinced Cody of Lawrence's paranoid religious views:

Lawrence ... told Cody that Jimmy Treybig, Cody’s father, was a high-level member of an evil society called the Illuminati; that Cody’s school, his hometown of Austin, and colleges in general were full of evil Illuminati members; that the rapture was imminent; that Cody’s parents intended to have an RFID5 chip implanted into Cody’s body, which would damn him to hell; that the RFID chip would control Cody’s mind and would contain cyanide that could be used to kill him if he resisted; and that Cody’s parents and brother hated him and were evil.

In the suit against Lawrence for intentional infliction of emotional distress, the court rejected Lawrence's free exercise defense:

Lawrence argues that the jury could not determine whether his conduct was extreme and outrageous without weighing the veracity of his religious beliefs and that the trial court therefore should have dismissed Cody’s claims. However, whether Lawrence’s views are sincerely held or whether he believed that he was helping to save Cody from damnation is irrelevant under the facts of this case, in which Lawrence’s conduct, no matter its motivation, was extreme and outrageous.

The court affirmed the award of damages of $4 and an injunction barring Lawrence from coming within 1,000 feet of Cody or contacting Cody or his family.

Roy Moore To Run Again For Senate

Roy Moore, former Chief Justice of the Alabama Supreme Court, announced yesterday that he will once again run for the U.S. Senate seat from Alabama. CNN, reporting on Moore's announcement, said in part:

Moore has long been a controversial figure in the state. He was twice elected as Alabama chief justice but was removed both times, for installing a giant statue of the Ten Commandments in the state judicial building and for ordering lower court judges to refuse to marry same-sex couples.

"We have every right to recognize God," Moore said. "That'll be a main factor in my race."

Senate Republicans generally hope that Moore will be defeated in the Republican primary.

Supreme Court Allows Bladensburg Cross To Remain In Flurry of Opinions

The U.S. Supreme Court today, in a case generating seven separate opinions spanning 87 pages, rejected an Establishment Clause challenge to the 94-year old Bladensburg Cross that serves as a Veterans War Memorial on public land in Maryland.  In American Legion v. American Humanist Association, US Sup. Ct., June 20, 2019), Justice Alito delivered an opinion for the Court that was joined by Chief Justice Roberts and Justices Breyer, Kagan and Kavanaugh. As summarized by the Court's syllabus, the majority held:

At least four considerations show that retaining established, religiously expressive monuments, symbols, and practices is quite different from erecting or adopting new ones. First, these cases often concern monuments, symbols, or practices that were first established long ago, and thus, identifying their original purpose or purposes may be especially difficult.... Second, as time goes by, the purposes associated with an established monument, symbol, or practice often multiply.... Even if the monument’s original purpose was infused with religion, the passage of time may obscure that sentiment and the monument may be retained for the sake of its historical significance or its place in a common cultural heritage. Third, the message of a monument, symbol, or practice may evolve.... Familiarity itself can become a reason for preservation. Fourth, when time’s passage imbues a religiously expressive monument, symbol, or practice with this kind of familiarity and historical significance, removing it may no longer appear neutral, especially to the local community. The passage of time thus gives rise to a strong presumption of constitutionality.

Another portion of Justice Alito's opinion was joined only by Chief Justice Roberts and Justices Breyer and Kavanaugh. They explicitly rejected the notion that the Lemon test should be applied to all Establishment Clause challenges, saying that instead the Court has sometimes used other approaches.

Justice Breyer filed a separate concurrence joined by Justice Kagan, saying:

The case would be different, in my view, if there were evidence that the organizers had “deliberately disrespected” members of minority faiths or if the Cross had been erected only recently, rather than in the aftermath of World War I.... Nor do I understand the Court’s opinion today to adopt a “history and tradition test” that would permit any newly constructed religious memorial on public land.

Justice Kavanaugh wrote a concurring opinion in which he said that the majority was applying a "history and tradition" test.

Justice Kagan also filed a concurring opinion, explaining why the portions of Justice Alito's opinion which she did not join go too far in rejecting the Lemon test.

Justice Thomas filed an opinion concurring only in the judgment, and taking the position that the Establishment Clause applies only to the federal government and is not incorporated by the 14th Amendment to apply to the states. He went on to contend that even if the Establishment Clause does apply to the states, the Bladensburg Cross is constitutional.

Justice Gorsuch wrote a separate opinion concurring in the judgment, joined by Justice Thomas.  He argues that the American Humanist Association lacks standing, and rejects the "offended observer" theory of standing.

Justice Ginsburg, joined by Justice Sotomayor, wrote a 20-page dissent, saying in part:

As I see it, when a cross is displayed on public property, the government may be presumed to endorse its religious content....

The Commission urges in defense of its monument that the Latin cross “is not merely a reaffirmation of Christian beliefs”; rather, “when used in the context of a war memorial,” the cross becomes “a universal symbol of the sacrifices of those who fought and died.”... The Commission’s “[a]ttempts to secularize what is unquestionably a sacred [symbol] defy credibility and disserve people of faith.”

AP reports on the decision. SCOTUSblog has further analysis of the decision.

Judicial Oversight of FLDS Land Trust Ended

According to AP, a Utah state court judge on Tuesday agreed to end the 14-year judicial oversight of the United Effort Plan Trust that holds property of members of the polygamous FLDS Church. The Trust has resold over 200 homes and buildings to former FLDS members. Those seeking continued judicial oversight say that favoritism is shown by the community board that determines who may purchase property from the Trust. (See prior related posting.)

Senate Confirms Controversial Nominee For Texas Federal Court Seat

As reported by Bloomberg Law, the U.S. Senate yesterday confirmed the nomination of Matthew Kacsmaryk for a seat on the U.S. District Court for Northern District of Texas by a vote of 52-46. The controversy surrounding Kacsmaryk's nominations is summarized by Courthouse News:

Kacsmaryk has since 2014 served as deputy general counsel at the First Liberty Institute, a legal group that offers free representation to people raising religious liberty claims in court....

His time at the group has put him at the center of several high-profile clashes between gay rights and religious liberty, which has become an increasing flashpoint in federal courts in recent years.

This includes work on the case of a couple that owns a bakery in Oregon and refused to make a custom cake for a same-sex wedding.

Christian Music Teacher Sues Over School's Transgender Policy

A former music teacher in a Brownsburg, Indiana school has sued the school claiming failure to accommodate his religious beliefs as required by Title VII of the 1964 Civil Rights Act as well as violation of his 1st and 14th Amendment rights.  The complaint (full text) in Kluge v. Brownsburg Community School Corp., (SD IN, filed 6/18.2019), alleges that plaintiff, John Kluge, is a Christian whose religious beliefs include the belief that it is sinful to promote transgender behavior. He was forced to resign because of his refusal to comply with school policy requiring that he use transgender students' preferred names. For a while the school provided an accommodation that allowed him to address all students only by their last names, but that concession was then withdrawn. The suit seeks an injunction to bar enforcement of the school's policy, as well as back pay for plaintiff. Indiana Lawyer reports on the lawsuit.

Former Scientology Adherent Sues Claiming False Imprisonment, Human Trafficking and More

A lawsuit was filed on Tuesday in a California state trial court against the Church of Scientology and its leader David Miscavige by a woman who was born to Scientologist parents and escaped the organization only as an adult.  The complaint (full text) in Doe v. Church of Scientology International, (Los Angeles Super. Ct., filed 6/18/2019), alleges causes of action for false imprisonment, kidnapping, stalking, defamation, invasion of privacy, infliction of emotional distress, human trafficking, violations of California's labor laws, and fraud. The complaint alleges in part:

The Church of Scientology presents a façade to the outside world to disguise what in reality is nothing more than a cult built on mind control and destruction of the independence and self-control of those drawn into its sphere. Scientology and its leaders use religious rhetoric to lure trusting and unsuspecting individuals seeking to better themselves into its corporations. Once in CSI, members are isolated from the outside world, their access to information is heavily monitored and controlled, and they are subject to physical, verbal, psychological, emotional and/or sexual abuse and/or assault. Their assets are also targeted by CSI, which calibrates its member services according to the wealth of each member.

NBC News reports on the lawsuit.

Tony Perkins Elected USCIRF Chair

On Monday, the U.S. Commission on International Religious Freedom elected Tony Perkins as Chair for the 2019-2020 term. (Press release.) Perkins, an ordained minister, has served as the president of the Family Research Council. (Full bio.)

FFRF Foregoes Cert Petition In Challenge To Parsonage Allowance

In a press release last week, the Freedom From Religion Foundation explained why it had not sought Supreme Court review of the 7th Circuit's decision in Gaylor v. Mnuchin.  In the case, the circuit court rejected an Establishment Clause challenge to Internal Revenue Code Sec. 107(2) which excludes from taxable income housing allowances paid to members of the clergy. (See prior posting.)  FFRF said in part:

After “counting heads,” we concluded that any decision from the current court would put the kibosh on challenging the housing allowance for several generations.

We began this challenge years ago, when the composition of the Supreme Court was very different. We have (secular) faith that someday the Supreme Court composition will again favor the Establishment Clause and be willing to scrutinize this preferential code and declare it unconstitutional. By ending our challenge at this time, the Freedom From Religion Foundation is making it possible for another challenge to be taken in the future, and we hope to be part of that.

Church That Is Potential Trust Beneficiary Lacks Standing To Seek Independent Trustee

In In re Trust of Mary Baker Eddy, (NH Sup. Ct., June 14, 2019), held that a Christian Science church in Australia that is a potential beneficiary of a trust created under the will of Christian Science founder Mary Baker Eddy lacks standing to seek the appointment of an independent trustee. The New Hampshire Supreme Court concluded that the Australian congregation failed to show that it had a sufficient special interest in the trust to create standing. Sentinel & Enterprise News reports on the decision.

Parents Ask Court To Bar Publication of Data On Vaccination Rates In Individual Schools

Suit was filed last week in a Connecticut state trial court to prohibit the state Department of Public Health from continuing to post information on vaccination rates in individual schools. The complaint (full text) in Festa v. State of Connecticut Department of Public Health, (CT Super. Ct., filed 6/12/2019), says that publication of the information has led to "hateful and vitriolic statements regarding nonvaccinated students and parents" appearing on the Internet, creating mental and emotional distress to plaintiffs. Plaintiffs are parents of a student in a private school for children with autism and have claimed a religious exemption from vaccination.  Connecticut Mirror reports on the lawsuit.

Quebec Enacts Ban On Public Employees Wearing Religious Symbols

On June 16 in Canada, Quebec's Parliament passed and the Lieutenant Governor signed (legislative history) Bill 21 (full text as introduced; adopted amendments), a controversial law that prohibits a lengthy list of public officials, law enforcement and judicial officials as well as teachers from wearing religious symbols in the exercise of their official functions. A grandfather clause exempts most current officials and employees. However it prohibits any other accommodations from being granted under the law. The new law also requires an extensive list of public employees to carry out their functions with their face uncovered. It also requires persons who seek public services to present themselves with their face uncovered if necessary for identification or security. Parliament invoked the "notwithstanding clause" of the Canadian Constitution to prevent constitutional challenges.

The new law additionally sets out broader principles of secularism for the province:

CHAPTER I: AFFIRMATION OF THE LAICITY OF THE STATE

1. The State of Québec is a lay State.

2. The laicity of the State is based on the following principles: (1) the separation of State and religions; (2) the religious neutrality of the State; (3) the equality of all citizens; and (4) freedom of conscience and freedom of religion.

The new law also amends Sec. 9.1 of Quebec's Charter of Human Rights and Freedoms to  to add "State laicity" as one of the permissible factors to consider in limiting freedoms.  Montreal Gazette reports on the legislation. Chatelaine summarizes the new law and its enactment:

After a long debate, the bill was passed at 10:30 p.m. on June 16 with support from the Parti Québécois. The Quebec Liberal Party and Québec Solidaire voted against the bill. Bill 21 formally bans teachers, police officers, judges and many others from wearing items like hijabs, turbans, kippas, and crucifixes in the course of their duties. It also doubles down on pre-existing legislation that requires citizens to uncover their faces when accessing public services like municipal transit and the legal system.

One day after the law was enacted, the National Council of Canadian Muslims and the Canadian Civil Liberties Union filed suit to declare the law invalid and to obtain an interim order staying its operation while the litigation is pending.  The complaint (full text) in Hak v. Attorney General of Quebec, (Quebec Super. Ct., file 6/17/2019), contends that the law exceeds the powers of the province, is impermissibly vague and contravenes the "internal architecture" of the Canadian Constitution. CTV News reports on the lawsuit.

Suit By Purchasers of Former PTL Club Properties May Move Forward

MorningStar Fellowship Church v. York County South Carolina, (D SC, June 17, 2019), involves a dispute between a South Carolina county and a large Christian evangelical church that had purchased properties once owned by PTL Club's Jim and Tammy Faye Bakker.  Jim Bakker resigned in the wake of a sexual scandal and was ultimately convicted and imprisoned for fraud. (Background.)  Plaintiff, MorningStar Fellowship, claims that the county prevented it from completing development of an $11 million building, known as the Tower, because of religious animus against the former owners, the Bakkers.  The development agreement between the county and MorningStar Fellowship called for demolition of the Tower if performance and payment bonds were not obtained within 180 days of approval of the site plan for the development. MoruningStar Claims that the county concealed its approval of the site plan in order to create a default.

The court dismissed on statute of limitations grounds MorningStar's claim for damages flowing from violation of its free exercise, due process and equal protection rights. However the court allowed plaintiff to move ahead on claims under the South Carolina constitution and the South Carolina Religious Freedom Act. It also allowed plaintiff to amend its complaint to add substantial burden and discrimination claims under the federal Religious Land Use and Institutionalized Persons Act.

Certiorari Denied In Contraceptive Mandate Case

The U.S. Supreme Court today denied review in Little Sisters of the Poor v. California, (Docket No. 18-1192, certiorari denied 6/17/2019). (Order List).  In the case, the U.S. 9th Circuit Court of Appeals in a 2-1 decision affirmed in part a preliminary injunction issued by a California federal district court against enforcement of the Trump Administration's Interim Final Rules expanding religious and moral exemptions to the Affordable Care Act Contraceptive Coverage Mandate. (See prior posting.) The Interim Rules have now been replaced by Final Rules. (See prior posting.)

Supreme Court Vacates and Remands Same-Sex Wedding Cake Case

The U.S. Supreme Court today granted certiorari, vacated the judgment of the Oregon Court of Appeals and remanded for further consideration the case of Klein v. Bureau of Labor & Industries, (Docket No. 18-547, 6/17/2019). (Order List). In the case, the Oregon Court of Appeals agreed with the state Bureau of Labor and Industries that Sweetcakes bakery violated the state's public accommodation law when it refused to design and create a wedding cake for a same-sex wedding. (See prior posting.)  The Supreme Court ordered reconsideration in light of its decision in Masterpiece Cakeshop last year.

Recent Articles of Interest

From SSRN:

• Reuben Guttman, Religion and Regulation, (Emory Corporate Governance and Accountability Review, Issue 6 Vol I (2019).
• John M. Breen & Lee J. Strang, Academic Freedom and the Catholic University: An Historical Review, a Conceptual Analysis, and a Prescriptive Proposal, (University of St. Thomas Law Journal, Vol. 15, No. 2, 2019).
• Andrew M. Koppelman, This Isn’t About You: A Comment on Smith’s Pagans and Christians in the City, (56 San Diego Law Review 393 (2019)).
• Nicholas Aroney, Can Australian Law Better Protect Freedom of Religion?, (Australian Law Journal, Vol. 19 (2019)).
• Elizabeth Sepper & Jessica L. Roberts, Sex, Religion, and Politics, or the Future of Healthcare Antidiscrimination Law, (19 Marquette Benefits & Soc. Welfare L. Rev. 217 (2018)).
• Sohail Wahedi, Freedom of Religion and Living Together, (California Western International Law Journal, Vol. 49, No. 2, 2019).
• Perry Dane, Ironies in the City: Reflections on Stephen Smith's Pagans and Christians in the City, (Journal of Catholic Legal Studies, 2019).
• Tally Kritzman-Amir & Java Ramji-Nogales, Nationality Bans, (University of Illinois Law Review, Vol. 2019, No. 2, 2019).
• Raphael Cohen-Almagor, Racism and Hate Speech – A Critique of Scanlon’s Contractual Theory, (First Amendment Studies, 2019).
• Elizabeth Bartholet, Homeschooling: Parent Rights Absolutism vs. Child Rights to Education & Protection, (Forthcoming, Arizona Law Review, Vol. 62, No. 1, 2020).
• Melanie Kalmanson & Riley Erin Fredrick, Finding Abortion in Equality After Obergefell, (New York University Journal of Legislation and Public Policy, Vol. 22, No. 2, 2019).
• Florence Ashley, Don’t Be So Hateful — The Insufficiency of Anti-Discrimination and Hate Crime Laws in Improving Trans Wellbeing, ((2018) University of Toronto Law Journal, 68(1), pp. 1–36).

From SSRN (Islam and Islamic Law)::

• Nikos Koumoutzis & Chrisroa Papastylianos, Human Rights Issues Arising from the Implementation of Sharia Law on the Minority of Western Thrace—ECtHR Molla Sali v. Greece, Application No. 20452/14, 19 December 2018 (May 24, 2019). Religions 2019, 10, 300).
• Akinyemi Akinniyi, Islamic Identity, (May 6, 2019).
• Leti Volpp, Protecting the Nation from 'Honor Killings': The Construction of a Problem, 34 Constitutional Commentary 133 (2019).
• Darin Johnson, The Problem of the Terror Non-State: Rescuing International Law from ISIS and Boko Haram, (Brooklyn Law Review , Vol. 84, No. 2, 2019).
• Dr. Ahmad Shaikh, In the Modern Culture the Protection of Women’s Rights and the Islamic Shariah Rules: A Critical Analysis, (April 29, 2019).
• Engy Abdelkader, The Victimization of Muslim American Women and the Challenges of Imperial Feminism in Comparative Context, (Oxford University Press (2020 Forthcoming)).
• Muhammad Ahmad, The Hanafi Legal Theory: Some Significant Issues, (Peshawar Islamicus, Vol. 8, Issue 2 (2017), pp 1-14).

From SmartCILP:

• Lawrence G. Sager & Nelson Tebbe, The Reality Principle, 34 Constitutional Commentary 171-192 (2019).
• Jonathan R. Cohen, Lawyers Serving Gods, Visible and Invisible, (53 Gonzaga Law Review 187-206 (2017/18).
• Lorraine K. Bannai, Korematsu Overruled? Far From It: The Supreme Court Reloads the Loaded Weapon, 16 Seattle Journal for Social Justice 897-911 (2018).
• Religious Freedom: Liberty, Legislation, and Litigation. Introduction by Student Symposium Editors Emily Gait, Stefani Roman; articles by Charlotte Garden, Michael A. Helfand, Adrienne Fulco, Christopher C. Lund. 50 Connecticut Law Review 849-985 (2018).
• Allan W. Vestal. Removing State Constitution Badges of Inferiority, 22 Lewis & Clark Law Review 1151-1198 (2018).
• Patrick J. McNulty & Joseph F. Moser, Absolution for Opting Out of the Contraception Mandate: Substantial Burden Gone Awry, 67 Drake Law Review 89-136 (2019).
• Samuel J. Levine, The Constitution as Poetry, 49 Seton Hall Law Review 737-754 (2019).
• Monastic Governance in South and Southeast Asia. Introduction by Ben Schonthal; articles by Matthew Walton, Aung Tun, Monica Lindberg Falk, Hiroko Kawanami, Ben Schonthal, Thomas Borchert, Susan M. Darlington, Michael R. Chladek, Gregory Kourilsky, Patrice Ladwig. 3 Buddhism Law &. Society 1-242 (2017-2018).

German Court Rejects City's Ban On"Burkini"

Breibart News today reports:

The ban on the sharia-compliant swimwear known as the “burkini” has been overturned by the higher administrative court in the German federal state of Rhineland-Palatinate after a judge decided the ban violated the constitution.

The ban originated in the city of Koblenz and began on the 1st of January but was challenged by a Syrian asylum seeker who claimed that she required the swimwear for religious reasons and also needed to use the swimming pool because she suffers from back problems...

 According to the Higher Administrative Court, the ban violated the German constitution’s requirement for equal treatment. The city had argued that the burkini made it impossible to know whether or not those wearing them suffered from any hygienic issues or diseases....

Suit In Canada Seeks To Move Election Day To Avoid Jewish Holiday

A lawsuit was filed last week in federal court in Canada seeking to move the upcoming federal election from Oct. 21 to Oct. 28.  According to Vos Iz Neias:

Shemini Atzeret comes out this year on Election Day, Oct. 21, which would prevent observant Jews from casting their ballots. Of the four advance polling days, three are on other Jewish holidays or Shabbat....

Chani Aryeh-Bain, the Conservative Party candidate for the Toronto-area district of Eglington-Lawrence, and voter Ira Walfish of York Centre, also a Toronto-area district, filed the suit claiming that the election date discriminates against observant Canadian Jews.

Aryeh-Bain is an observant Jew and therefore would not be able to campaign on Election Day, the lawsuit says....

[Thanks to Steven H Sholk for the lead.]