Recent Articles of Interest

From SSRN:

• Kristina Michelle Campbell, Sanctuary, Temporary Protected Status, and Catholic Social Teaching, (University of Detroit Mercy Law Review, Vol. 96, No. 1, 2018).
• Thea Raymond-Sidel, I Saw the Sign: NIFLA v. Becerra and Informed Consent to Abortion, (Columbia Law Review, Vol. 119, No. 8, 2019).
• Robert Kahn, The Long Road Back to Skokie: Returning the First Amendment to Mask Wearers, (U of St. Thomas (Minnesota) Legal Studies Research Paper No. 19-14 (2019)).
• Robert Leckey, ‘Repugnant’: Homosexuality and Criminal Family Law, (University of Toronto Law Journal, Forthcoming).
• Ayako Hatano, Can Strategic Human Rights Litigation Complement Social Movement? - A Case Study of the Movement against Racism and Hate Speech in Japan, (May 1, 2019).
• Shahnawaz Ahmed Malik, Minority Rights Protection in India; From Sachar Committee Recommendations to Mob Lynching, (Review Of Research Journal, 2018).
• Muhammad Munir, Multiplying Zeroes: (In)Validity of Promises in Marriage Contracts under Pakistani Case Law, (LUMS Law Journal, Vol. 6 (2019), pp. 1-14).

State Department Sanctions Two Russians For Persecution of Jehovah's Witnesses

Last week the State Department publicly designated two investigative officials in Russia's western Siberian city of Surgut as ineligible to enter the United States because of their involvement in persecution of Jehovah's Witnesses.  The State Department's press release said in part:

The Department is publicly designating Vladimir Petrovich Yermolayev, the Head of the Investigative Committee in the city of Surgut, Russia, and Stepan Vladimirovich Tkach, Senior Investigator at the Investigative Committee of Surgut, Russia, under Section 7031(c) of the FY2019 Department of State, Foreign Operations, and Related Programs Appropriations Act, due to their involvement in gross violations of human rights.  Section 7031(c) provides that, in cases where the Secretary of State has credible information that foreign officials have been involved in significant corruption or a gross violation of human rights, those individuals and their immediate family members are ineligible for entry into the United States.

... On February 15, 2019, officers of the Surgut Investigative Committee, led by Yermolayev and Tkach, subjected at least seven Jehovah’s Witnesses to suffocation, electric shocks, and severe beatings during interrogation at the Committee’s headquarters.  This brutality stands in marked contrast to the peaceful practices of the Jehovah’s Witnesses who have been criminally prosecuted for their religious beliefs in Russia since a 2017 Supreme Court decision affirming their wrongful designation as an “extremist organization.”

California Legislature Tells Clergy How To Treat LGBTQ Community

On September 9, the California legislature gave final passage to Assembly Concurrent Resolution 99  which calls on Californians-- and particularly its religious leaders-- to treat members of the LGBT community with greater respect.  The Resolution reads in part:

WHEREAS, The stigma associated with being LGBTQ often created by groups in society, including therapists and religious groups, has caused disproportionately high rates of suicide, attempted suicide, depression, rejection, and isolation amongst LGBTQ and questioning individuals; and...

WHEREAS, In a pluralistic society, people differing along spectrums of political and religious perspectives share a common responsibility of protecting the health and well-being of all children and vulnerable communities; now, therefore, be it...

Resolved, That the Legislature calls upon religious leaders to counsel on LGBTQ matters from a place of love, compassion, and knowledge of the psychological and other harms of conversion therapy; and be it further

Resolved, That in addressing the stigma often associated with persons who identify as LGBTQ, we call on the people of California–especially its counselors, pastors, religious workers, educators, and legislators–and the institutions of California with great moral influence–especially its churches, universities, colleges, and other schools, counseling centers, activist groups, and religious centers–to model equitable treatment of all people of the state....

Christian Post reports on the Concurrent Resolution.

Canadian Court Says Assisted Suicide Law Is Unconstitutionally Restrictive

In Truchon v. Procureur General du Canada, (Quebec Superior Ct., Sept. 11, 2019) [opinion in French], a Quebec trial court judge held that portions of the Canadian and of Quebec's assisted suicide laws are unconstitutional because they are too restrictive. As summarized by Canadian Press:

Justice Christine Baudouin found in favour of two Quebecers struck by incurable degenerative diseases who'd argued they were denied a medically assisted death under laws that are discriminatory.

Baudouin ruled invalid the Criminal Code requirement that a natural death be "reasonably foreseeable" before someone can be eligible for assisted death. The condition has prevented some people from accessing the end-of-life procedure. She also invalidated a section of the Quebec law that says people must "be at the end of life."

But the court granted an exemption to Truchon and Gladu [the plaintiffs], allowing them to seek medical aid in dying during this period if they satisfy other conditions in the law.

New York City To Make A Strategic Retreat On Its Broad Conversion Therapy Ban

As previously reported, in January the Christian advocacy organization Alliance Defending Freedom filed suit in a New York federal district court challenging New York City's broad ban on conversion therapy.  The city's ban, unlike bans in other jurisdictions, covers provision of conversion therapy to adults as well as minors. ADF filed the suit on behalf of an Orthodox Jewish physician, almost all of whose patients are Orthodox Jews. Now, according to yesterday's New York Times, New York City Council, with the support of LGBT activists, is about to repeal its ban.  The move is an attempt to prevent decisions from the Second Circuit or the U.S. Supreme Court that could give constitutional protection to conversion therapy. The gay speaker of City Council, Corey Johnson, was to introduce the repeal measure yesterday. Conversion therapy for minors will remain illegal under a New York state ban. (See prior posting.)

Texans Sue Under the "Save Chick-fil-A" Law

As previously reported, in June Texas Gov. Greg Abbott signed a bill which prohibits any governmental entity in Texas from taking adverse action against any person because of the person's affiliation, contribution or support for a religious organization. The law was aimed at San Antonio's exclusion of Chick-fil-A from operating at the San Antonio's airport.  The restaurant chain has been criticized for its contributions to organizations that oppose same-sex marriage. Last week, five Texas residents filed suit in a state trial court under the new law seeking an injunction to prevent the city from continuing to exclude Chick-fil-A from the airport. The complaint (full text) in Von Dohlen v. City of San Antonio, (TX Dist. Ct., filed 9/5/2019), alleges in part:

The law of Texas prohibits governmental entities from taking “adverse action” against corporations based on their contributions to a religious organization. See Texas Gov’t Code § 2400.002. The City of San Antonio is violating this statutory command by excluding Chick-fil-A from the San Antonio airport on account of its donations to Christian organizations such as the Salvation Army and the Fellowship of Christian Athletes. 

20. For years, liberal activists have been attacking Chick-fil-A because it gives money to Christian organizations that accept the Bible as the Word of God.

21. Because these Bible-believing Christian organizations derive their notions of morality from the Bible rather than modern-day cultural fads, they oppose homosexual behavior and same-sex marriage.

San Antonio Family Association issued a press release announcing the filing of the lawsuit.

Virginia School Board Expands Non-Discrimination Policy

The Stafford County, Virginia school board yesterday voted 4-3 to update its anti-discrimination policy to cover discrimination on the basis of race, color, national origin, political affiliation, religion, sex, pregnancy, childbirth or related medical conditions, marital status, mental or physical disability, genetic information, sexual orientation, gender identity, or any other characteristic prohibited by state and/or federal law. (Full text of updated policy). As reported by Shareblue Media, the expanded policy resulted from the school's handling of an active shooter drill last year. While other students were sent to wait in their locker rooms, the transgender student was left to wait in the gym because staff did not know which locker room to assign her to.

Cert. Filed In Florist's Refusal To Provide Same-Sex Wedding Flowers

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Arlene's Flowers, Inc. v. State of Washington, (Sup. Ct., cert. filed 9/11/2019).  In the long-running case, the Washington state Supreme Court held that a florist shop's refusal to provide flowers for a same-sex wedding constitutes sexual orientation discrimination under the Washington Law Against Discrimination, and that enforcement of the law does not violate the constitutional rights of the floral shop owner. (See prior posting.) ADF issued a press release announcing the filing of the petition for review.

Michigan City Adopts Ban on Conversion Therapy For Minors

The City of East Lansing on Tuesday passed an ordinance banning provision to minors of conversion therapy relating to sexual orientation or gender identity.  The City Council vote of approval was 3-2, after amendments to the version as proposed were adopted.  The original proposal and a video of City Council meeting including discussion and amendments are available on the city's website. Fox47 News reports on the passage of the ordinance.

Indian Tribe Sues Over Exclusion From Committee Dealing With Ancestors' Remains

A lawsuit was filed yesterday in a Texas federal district court by a non-federally recognized Indian tribe against Texas officials involved in redevelopment of the Alamo complex complaining about the tribe's exclusion from a committee dealing with human remains found at the site. Plaintiffs say their ancestors are among those buried there, and some of the tribes allowed on the committee are responsible for the deaths of those buried in the cemetery.

The complaint (full text) in Tap Pilam Coahuiltecan Nation v. Alamo Trust, Inc., (WD TX, filed 9/10/2019), contends that requirements of the San Antonio's zoning laws that refer to the National Historic Preservation Act are not being followed in dealing with a cemetery on the redevelopment site. Instead authorities are applying the Native American Grave Protection Act which excludes non-recognized tribes. The complaint alleges in part:

Defendants are ignoring the City of San Antonio’s Unified Development Code and arbitrarily applying NAGPRA for the purpose of excluding the Plaintiffs and other lineal descendants from participation. The reason for this is obvious, the Defendants are planning to conduct their archaeological activities in a manner that violates local, state and federal laws in an attempt to reduce cost and time.

Plaintiffs also complain that they were denied use of the Alamo Chapel for their annual Sunrise Memorial Ceremony. Courthouse News Service reports on the lawsuit.

Ann Arbor Concedes Narrow View of Public Accommodation

Last week, the city of Ann Arbor, Michigan settled a suit brought by a conservative political consulting and marketing firm challenging the city's attempt to apply its public accommodation law to the firm. Ann Arbor Code § 9:151(22) defines a public accommodation as including:

[A] business or other facility of any kind, whose goods, services, facilities, privileges, advantages or accommodations are extended, offered, sold or otherwise made available to the public....

The Stipulated Dismissal (full text) in ThinkRight Strategies, LLC v. City of Ann Arbor, (ED MI, filed 9/5/2019), asserts that:

While ThinkRight advertises to and receives requests for its services from the general public, ThinkRight will not fulfill any request if doing so involves promoting messages, views, policies, platforms, or causes contrary to ThinkRight’s conservative or religious principles.

The city of Ann Arbor conceded:

Ann Arbor does not consider ThinkRight to be a place of public accommodation as defined by Ann Arbor Code § 9:151(22).That is because ThinkRight will only provide its services in ways that promote, or are not contrary to, its conservative political beliefs and therefore limits the platforms, views, policies, causes, events, or messages it will convey or promote through its services.

ADF issued a press release announcing the settlement.

Recent Articles of Interest

From SSRN:

• Hashika Durai & K. Niranjana, A Study on Religious Laws and Religious Crimes in India, (August 26, 2019).
• Cyra Akila Choudhury, Reflections on the Christchurch Massacre: Incorporating a Critique of Islamophobia and TWAIL, (TWAILR: Reflections - 9/2019).
• Perry Dane, Echad: A D’var Torah on Parshat Vaetchanan, (August 17, 2019).
• Mark Kelman, What is in a Name?, (Taxation and Regulation Across Constitutional Domains (Carolina Academic Press, 2019)).
• Richard W. Garnett, The Communitarian Work and Vision(s) of Robert Cochran (and Thomas Shaffer), (Pepperdine Law Review, Vol. 46, 2019).
• Thomas Charles Berg, Religious Freedom and the Common Good: A Summary of Arguments and Issues, (15 University of St. Thomas Law Journal 517 (2019)).
• Etienne Wain, The Blessing of Same Gender Relationships in the Anglican Church of Aotearoa New Zealand and Polynesia: A Mixed Blessing?, (Victoria University of Wellington Legal Research Paper (Sept. 2019)).
• Khaled Beydoun, The Ban and the Borderlands Within: The Travel Ban As a Domestic War on Terror Tool, (Stanford Law Review, Vol. 71, 2019).
• Shahnawaz Ahmed Malik, Minority Rights Protection in India; From Sachar Committee Recommendations to Mob Lynching, (Review Of Research Journal, 2018).
• Douglas NeJaime, The Constitution of Parenthood, (Stanford Law Review, Vol. 72, Forthcoming).

From SmartCILP:

• L. Darnell Weeden, A Functional Free Exercise Clause Analysis Requires a State To Prove a Compelling Interest Before Interfering With an Individual's Faith-Based Same-Sex Marriage Participation Objections, [Abstract], 18 Appalachian Journal of Law 113-150 (2018-2019).
• Rabea Benhalim, The Case for American Muslim Arbitration, [Abstract], 2019 Wisconsin Law Review 531-591.

Prof's Objections To Referring To Students By Preferred Gender Rejected

In Meriwether v. Trustees of Shawnee State University, (SD OH, Sept. 5, 2019), an Ohio federal magistrate judge recommended dismissing challenges brought by a faculty member against his university claiming that the school's nondiscrimination policy violates his 1st and 14th Amendment rights as well as his rights under the state constitution.  Shawnee State requires faculty to refer to students using pronouns that reflect the student's gender identity even when that is different that the gender assigned to the student at birth. Plaintiff alleges that he is an evangelical Christian with the religious belief that gender cannot be changed after the moment of conception. He contends that the University's policy forces him to communicate an ideological message regarding gender that conflicts with his beliefs. Among other things, the judge in a 63-page opinion, rejected plaintiff's compelled speech, viewpoint discrimination and free exercise claims. [Thanks to Glenn Katon for the lead.]

Former Priest Charged With Lying To FBI

The U.S. Attorney's Office for the Eastern District of Pennsylvania announced yesterday that it has charged former Catholic priest Robert Brennan with four counts of making false statements in order to  obstruct an investigation into complaints that he sexually abused a child when he was serving as a priest in Philadelphia. AP reports on the indictment. State criminal charges against Brennan had been dropped after his alleged victim died in 2013 of a drug overdose.

Procedures For Inclusion On Terrorist Watch List Are Unconstitutional

In Elhady v. Kable, (ED VA, Sept. 4, 2019), a Virginia federal district court held that the procedures for including individuals in the U.S. government's Terrorist Screening Data Base ("Watchlist") violate plaintiffs' constitutional rights. The court held that plaintiffs' liberty interests are implicated by their inclusion in the Terrorist Watch List, and the process used to place a person on the list poses a substantial risk of erroneous deprivation of their rights to domestic and international travel, as well as interference with their reputational interests. RNS reporting on the decision notes that the case was brought by CAIR on behalf of 23 Muslim U.S. citizens who say they were wrongly placed on the list.

Doctor Sues Over Hospital's Limits On Providing Aid-In-Dying Medications

Last month, a doctor and her terminally ill patient filed a lawsuit in a Colorado state court against Centura Health's St. Anthony Hospital challenging its religion-based policy of refusing to allow its physicians to prescribe medication for patients under the state's End of Life Options Act, or to assist in qualifying a patient for use of aid-in-dying medication. The complaint (full text) in Mahoney v. Morris, (CO Dist. Ct., filed 8/21/2019), alleges that the hospital's policy goes beyond the opt-out permitted by the Colorado statute which only permits hospitals to bar their physicians from writing prescriptions for assisted-suicide medications that will be used on hospital premises.

Last week, Centura Health fired plaintiff Dr. Barbara Morris, and filed a petition to remove the case to federal court, contending that the hospital, sponsored by Catholic and Seventh Day Adventist ministries, cannot be barred from dismissing an employee who violates its policy.  The Notice of Removal (full text) in Mahoney v. Morris, (D CO, filed 8/30/19) alleges that the hospital's rights under the Free Exercise and Establishment clauses would be violated if it cannot discipline its doctors for acting in opposition to its religious doctrines. It also invokes 42 U.S. Code § 2000e–1, the exemption from Title VII for religious institutions. Kaiser Health News reports on these developments. [Thanks to Michael Peabody for the lead.]

Ecclesiastical Abstention Doctrine Prevents Decision On Church Demolition

In Friends to Restore St. Mary's, LLC v. Church of St. Mary, Melrose, (MN App., Sept. 3, 2019), a Minnesota state appellate court held that the ecclesiastical abstention doctrine precludes a civil court from adjudicating a dispute over whether an arson-damaged church building is a “historical resource” protected under Minnesota Environmental Rights Act.  Plaintiffs sought an injunction to prevent demolition of the church building after the Bishop and the Diocesan Building Council recommended demolition and building of a new structure. The court concluded:

On the record before us, the decision to remove features of religious significance and demolish the church building is an internal decision that affects the faith and mission of the church. Appellant’s MERA claim cannot be adjudicated without violating the ecclesiastical abstention doctrine.

British Appeals Court Upholds Order For Payments Until A "Get" Is Granted

In Moher v. Moher, (EWCA, Aug. 21, 2019), Britain's Court of Appeal upheld an order issued by a trial court in a divorce action requiring the husband to pay £22,000 per year until the husband granted the wife a get (Jewish divorce decree). British statutes specifically allow courts to order that the civil divorce decree will not become final until the marriage has been dissolved under Jewish law. The appeals court concluded that this does not prevent other types of orders directed at obtaining a get. The appeals court pointed out that "a Get obtained by compulsion is invalid in Jewish law," but concluded that:

the structure of the order in the present case does not compel the husband to act in a certain way. The court order provides only that until he grants a Get he has to pay periodical payments to the wife.

Family Law Week reports on the decision.

City's Special Events Ordinance Partly Upheld

In Shook v. City of Lincolnton, NC, (WD NC, Aug.29, 2019). a North Carolina federal district court agreed with only part of a challenge by a group of Christian street preachers to a city's Special Event and Unnecessary Noise Ordinances. the court said in part:

[T]he Court will grant Plaintiff’s preliminary injunction [as to] the portion of the Special Events Ordinance prohibiting “[a]ny conduct deemed to be disruptive . . . to participants or attendees of the special event” and “[a]busive . . . language that disrupts a special event or festival.” However, the City may still enforce the ... [ban on] "language ... that abuses or threatens another person in a manner likely to cause a fight or brawl at a special event or festival,” “... conduct deemed to be ... dangerous to participants or attendees of the special event,” and “threatening language that disrupts a special event or festival.”

The court also upheld the city's Unnecessary Noise ban.

Ecclesiastical Abstention Doctrine Requires Dismissal of Pastor's Contract Claim

In In re First Christian Methodist Evangelistic Church, (TX App., Aug. 30, 2019), a Texas state appellate court held that the ecclesiastical abstention doctrine, as a matter of constitutional law, prevented civil courts from adjudicating a pastor's claim that he was entitled to 6 months severance pay under his employment contract. The court said in part:

[T]o determine if the Church was required to pay the Senior Pastor severance under the contract, the trial court will be required to determine why the Senior Pastor was terminated and, if the termination was for misconduct, the court will be required to determine if the Senior Pastor was properly terminated for misconduct as defined by the Church’s Book of Discipline and ecclesiastical rules.... The ecclesiastical nature of the dispute cannot be severed from the contractual issues asserted by the Senior Pastor.