Cert. Denied In Dispute Over Liability of National Church Body For Sex Abuse By Church Elder

On Monday, the U.S. Supreme Court denied review in Watchtower Bible and Tract Society of New York v. J.W., (Docket No. 19-40, certiorari denied 10/7/2019). (Order List). In the case, a California state appellate court upheld an award against national church body of over $4 million to a girl who, when she was ten years old, was sexually abused by an elder of the Jehovah's Witness church.  (See prior posting.) The petition for certiorari (full text) raised 1st Amendment issues both as to liability for acts of congregants and production of internal documents. Friendly Atheist blog discusses the case.

US Sanctions Chinese Entities For Human Rights Abuses of Uighurs

In a press release yesterday, he U.S. Department of Commerce announced that it is imposing sanctions on 28 Chinese governmental and commercial organizations because they have been implicated in China's human rights abuses of Uighurs and other Muslim ethnic minorities in the Xinjiang Uighur Autonomous Region. Thompson Reuters reports on these developments.

Supreme Court Hears Oral Arguments In LGBTQ Employment Discrimination Cases

Today the U.S. Supreme Court heard oral arguments in three cases involving whether Title VII of the 1964 Civil Rights Act covers employment discrimination against gays, lesbians and transgender individuals.  Two of the cases (consolidated for oral argument) involve whether the ban on discrimination on the "because of sex" covers sexual orientation discrimination.  The cases are Bostock v. Clayton County, Georgia (case page on SCOTUSblog) and Altitude Express, Inc. v. Zarda (case page on SCOTUSblog). Here is the transcript of the full oral argument. The third case is R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (case page on SCOTUSblog). It raises the question of whether Title VII's ban on "sex" discrimination protects transgender individuals from employment discrimination.  Here is the transcript of the full oral argument. CNN reports on the oral arguments.

White House Issues Yom Kippur Greetings

The White House today released a Presidential Message on Yom Kippur, 2019 (full text). The message reads in part:

On this day, as Jews around the world stand in front of the open ark, facing the holy Torah and asking God’s forgiveness, Melania and I pray that He may seal you in the Book of Life for the coming year and grant His people a year of sweetness and plenty.

Yom Kippur begins at sundown tonight.

Cert. Petition Filed In Contraceptive Mandate Exemption Challenge

The Justice Department yesterday filed a petition for certiorari (full text) in Trump v. Commonwealth of Pennsylvania. In the case, the U.S. 3rd Circuit Court of Appeals affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting.) The cert. petition presents the following questions:

1. Whether the agencies had statutory authority under the ACA and the Religious Freedom Restoration Act ..., to expand the conscience exemption to the contraceptive-coverage mandate.

2. Whether the agencies’ decision to forgo notice and opportunity for public comment before issuing the interim final rules rendered the final rules—which were issued after notice and comment—invalid under the Administrative Procedure Act....

3. Whether the court of appeals erred in affirming a nationwide preliminary injunction barring implementation of the final rules.

[Thanks to Tom Rutledge for the lead.]

Certiorari Denied In Challenge To "Bible in the Schools" Program

Yesterday the U.S. Supreme Court denied review in Mercer County Board of Education v. Deal, (Docket No. 18-1487, certiorari denied 10/7/2019).  (Order List.) In the case, the U.S. 4th Circuit Court of Appeals reversed a West Virginia federal district court and held that a student who had withdrawn from the offending school system (and her parent) had standing to challenge the school system's Bible in the Schools program. It also held that the claim was ripe for adjudication. (See prior posting.) Bluefield Daily Telegraph reports on the Supreme Court's action.

Supreme Court Denies Review Of Discovery Directed To Church

The U.S. Supreme Court today denied certiorari in Presbyterian Church v. Edwards, (Docket No. 18-1441, cert. denied 10/7/2019). In the case the Kentucky Supreme Court allowed discovery to proceed in a defamation suit against the Presbyterian Church to the extent necessary to determine if the church is entitled to ecclesiastical immunity. (See prior posting.) The Supreme Court in June denied a stay in the case.

Annual Red Mass Attended By Three Current Justices and Others

Catholic Standard reports on the annual Red Mass held yesterday at the Cathedral of St. Matthew the Apostle in Washington, D.C.  The Mass is held each year on the Sunday before the U.S. Supreme Court opens its term. The paper reports:

Archbishop [Wilton D.] Gregory noted, “We pray for all of the members of the judiciary and legal world because yours is the tremendous responsibility of attempting to reflect God’s perfect justice and mercy in interpreting the laws of our nation and for all those who will come before you during this next year.”

Those affected by the administration of justice, he added, include those who may have committed crimes, and “those whose language, culture, race, or religion are not your own, as well as those who are at precarious moment on the spectrum of human life.  None of them are unimportant and all of them approach you for what they hope will be a sign and an expression of God’s truth.”

Four Supreme Court justices attended the Mass: John G. Roberts Jr., Chief Justice of the United States; Associate Justices Clarence Thomas and Stephen G. Breyer; and retired Associate Justice Anthony M. Kennedy.

Also in attendance were U.S. Attorney General William Barr; U.S. Secretary of Labor Eugene Scalia; and U.S. Solicitor General Noel Francisco; along with numerous judges and local attorneys, along with deans, professors and students from area law schools. John Garvey, the president of The Catholic University of America; and John DeGioia, the president of Georgetown University, were also at the Mass.

British Employment Tribunal Rules Against Doctor Who Objects To Policy On Pronouns For Transgender Patients

In Mackereth v. Department for Work and Pensions, (Empl. Trib., Oc. 2, 2019), a British Employment Tribunal held that while a doctor's Christian religious beliefs are protected under the Equality Act, his refusal to refer to transgender patients who he was hired to assess by their preferred pronouns and titles constitutes unlawful discrimination and harassment under the Equality Act. The Tribunal said in part:

We accept that the belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism ... are genuinely held and ... relate to a weighty and substantial aspect of human life and behaviour and attain a certain level of cogency, seriousness, cohesion and importance....

Irrespective of our determinations above, ... belief in Genesis 1:27, lack of belief in transgenderism and conscientious objection to transgenderism in our judgment are incompatible with human dignity and conflict with the fundamental rights of others, specifically here, transgender individuals....

... [T]he right to manifest a religion or belief is subject to art. 9(2) [of the European Convention on Human Rights] which includes “the protection of the rights and freedoms of others.”....

Law & Religion UK has more on the decision.

European Court Says Conviction For Holocaust Denial Does Not Violate Free Speech Rights

In Pastors v. Germany, (ECHR, Oct. 3, 2019), the European Court of Human Rights in a chamber judgment rejected claims by the chairman of the National Democratic Party of Germany that his criminal conviction for a speech he gave in the Land Parliament of Mecklenburg-Western Pomerania violated his free expression rights under Art. 10 of the European Convention on Human Rights.  Pastors was convicted of defamation and violating the memory of the dead for language in his speech denying the existence of the Holocaust.  The court said in part:

In the present case, the applicant intentionally stated untruths in order to defame the Jews and the persecution that they had suffered during the Second World War. Reiterating that it has always been sensitive to the historical context of the High Contracting Party concerned when reviewing whether there exists a pressing social need for interference with rights under the Convention and that, in the light of their historical role and experience, States that have experienced the Nazi horrors may be regarded as having a special moral responsibility to distance themselves from the mass atrocities perpetrated by the Nazis ..., the Court therefore considers that the applicant’s impugned statements affected the dignity of the Jews to the point that they justified a criminal-law response. Even though the applicant’s sentence of eight months’ imprisonment, suspended on probation, was not insignificant, the Court considers that the domestic authorities adduced relevant and sufficient reasons and did not overstep their margin of appreciation. The interference was therefore proportionate to the legitimate aim pursued and was thus “necessary in a democratic society”.

... In these circumstances the Court finds that there is no appearance of a violation of Article 10 of the Convention. Accordingly the complaint must be rejected as being manifestly ill-founded in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

The court also issued a press release summarizing the decision.

Recent Articles of Interest

From SSRN:

• Silvia Timofti, Adoption History. From Ancient Societies to Contemporary Societies, (August 20, 2019).
• Jonathan Zasloff, Sanctuary, Civil Disobedience, and Jewish Law, (UCLA School of Law, Public Law Research Paper No. 19-32 (2019)).
• Marc O. DeGirolami, First Amendment Traditionalism, (Washington University Law Review, Forthcoming).
• Adriaan Knoetze & Shaun Alberto de Freitas, The Protection of Conscientious Objection against Euthanasia in Health Care, (Potchefstroom Electronic Law Journal, Vol. 22, 2019).
• Rafael Domingo, The Individual in Contemporary Sacred Natural Law, (Forthcoming in Anne Peter and Tom Sparks, The Individual in International Law. History and Theory (2021)).
• Andrew John Hoffman, Our Emerging Cultural Shift: Regaining the Moral Case to Address Climate Change, (Behavioral Scientist, September 30, 2019).
• Richard Schragger & Micah Schwartzman, Establishment Clause Inversion in the Bladensburg Cross Case, (ACS Supreme Court Review 2018-2019).
• Whittney Barth, et. al., Researching Hate: Challenges to Tracking Hate Crimes & Practices for Collecting Better Data, (September 18, 2019).
• Roger Colinvaux & Ray D. Madoff, Charitable Tax Reform For the 21st Century, (164 Tax Notes 1867 (2019)).

From SSRN (Islamic Law):

• Zaizul Ab Rahman, et. al., Implementing the Element of Islamic Perspective View in Mental Health Problems, (International Journal of Civil Engineering and Technology 10(3), 2019, pp. 1182-1191).
• Zaizul Ab Rahman, et. al., Element of Religiosity Practices among Teens in Islamic Perspective, (International Journal of Civil Engineering and Technology, 10(3), 2019, pp. 1244-1251).
• Raditya Sukmana, Khoirul Zadid Taqwa & Tika Widiastuti, Islamic Financial Intermediation of Indonesian Economic Growth in 2003: Q1-2015: Q4, (International Journal of Civil Engineering and Technology, 10(3), 2019, pp. 1320-1333).
• Galym Zhussipbek & Zhanar Nagayeva, Epistemological Reform and Embracement of Human Rights. What Can be Inferred from Islamic Rationalistic Maturidite Theology?, (Open Theology 2019; 5: 347–365).

Judicial Ethics Complaint Filed Over Judge's Gift of Bible To Convicted Murder Defendant

On Oct. 3, the Freedom From Religion Foundation filed a complaint with the Texas State Commission on Judicial Conduct (full text) asking it to investigate the actions of state trial judge Tammy Kemp at the widely covered murder trial of Former Dallas Police Officer Amber Guyger.  The complaint states in part:

We write to raise your awareness of Judge Kemp’s actions at the close of the trial — during which she gifted a Christian bible, instructing the convicted criminal on how to read the bible and which passages to pay attention to, and witnessing to that convicted murderer. These proselytizing actions overstepped judicial authority, were inappropriate and were unconstitutional....

We understand that it was an emotional moment, particularly when the victim’s brother, Brandt Jean, publicly forgave and hugged Guyger. It is perfectly acceptable for private citizens to express their religious beliefs in court, but the rules are different for those acting in a governmental role. We, too, believe our criminal justice system needs more compassion from judges and prosecutors. But here, compassion crossed the line into coercion. And there can be few relationships more coercive than a sentencing judge in a criminal trial and a citizen accused and convicted of a crime.

FFRF issued a press release announcing the filing of the complaint.

Trial Judge's Alleged Anti-Jewish Bias Leads To Stay of Execution

In Ex parte Halprin, (TX Ct. Crim. App., Oct. 4, 2019), the Texas' Court of Criminal Appeals stayed the execution of a Jewish inmate who claims that his trial judge was biased against him. Petitioner claims that the judge regularly used racist language and antisemitic slurs. Plaintiff's Application for a Writ of Habeas Corpus contends:

The ... claim presents newly uncovered evidence that trial judge Vickers Cunningham referred to Mr. Halprin as a “goddamn kike” and “fuckin’ Jew,” and to his Latino co-defendants as “wetbacks,” when the judge bragged about his role in convicting and sentencing to death the Jewish and Latino members of the Texas 7. The evidence of Judge Cunningham’s bias comes primarily from first-hand accounts of disinterested witnesses to his prejudiced statements... and Judge Cunningham’s lifelong association with racist and anti-Semitic role models....

The court remanded the case for determination if petitioner's due process and free exercise rights were violated. Courthouse News Service reports on the decision.

Tampa Conversion Therapy Ban Invalidated On Preemption Grounds

In Vazzo v. City of Tampa, (MD FL, Oct. 4, 2019), a Florida federal district court invalidated a Tampa city ordinance barring licensed psychotherapists and counselors from practicing sexual orientation change efforts on minors. The court avoided the significant constitutional issues posed by the conversion therapy ban, and instead held:

The City Ordinance is preempted by the comprehensive Florida regulatory scheme for healthcare regulation and discipline. Accordingly, the Court strikes the Ordinance under the implied preemption doctrine and grants the Plaintiffs’ motion for summary judgment.

(See prior related posting.) CBS12 reports on the decision.

Court Refuses To Enforce Jewish Marriage Contract Provision

In Tilsen v. Benson, 2019 Conn. Super. LEXIS 2475 (CT Super. Ct., Sept. 11, 2019), a Connecticut trial court opinion that has just become available on LEXIS, the court rejected plaintiff's argument that it could constitutionally apply neutral principles of law to enforce a provision in a ketubah (Jewish marriage contract) as if it were a pre-nuptial agreement. According to the court, the ketubah provided that any divorce would be "according to Torah law."  The husband argued that this means there should be a 50/50 division of property with no obligation for continuing alimony payments. In denying plaintiff's motion to enforce the ketubah, the court said in part:

To educate the court about the parties' chosen law, the plaintiff submitted the affidavit of a rabbi ... describing his understanding of Torah law as it pertains to alimony and property division. The defendant also submitted the affidavit of a rabbi. However, the defendant's rabbinical expert disagrees with the plaintiff's rabbinical expert.

It is clear, then, that enforcement of the "Torah law" provision in the Ketubah would require the court to choose between competing interpretations of Jewish law. But resolving such a dispute is precisely what the neutral principles approach forbids a court to do. The first amendment does not permit courts to resolve disputes over the meaning and interpretation of the Torah-or the Koran, the New Testament or any other religious text....

EEOC Sues Over Firing of Jehovah's Witness Employee

The EEOC announced this week that it has filed suit in a New York federal district court against Pedidatrics 2000 for religious discrimination in firing a Jehovah's Witness employee.  When the employee requested not to attend a December holiday party because it would violate her religious practices, she was fired by the health care company's owner who texted her: "[W]e can't tolerate religious privileges from anyone." JD Supra reports on the lawsuit.

Supreme Court Grants Certiorari On Louisiana Abortion Law Restriction

The U.S. Supreme Court today agreed to hear appeals involving the constitutionality of Louisiana's abortion law.  The Louisiana Unsafe Abortion Protection Act requires any abortion provider to have admitting privileges at a hospital within 30 miles of the location where abortions are performed. The cases are June Medical Services LLC v. Gee, (Docket No. 18-1323, cert. granted 10/4/2019), and Gee v. June Medical Services, LLC, (Docket No. 18-1460, cert. granted 10/4/2019). (Order list).  In March 2016, the U.S. Supreme Court summarily upheld a preliminary injunction preventing the Act from going into effect. (See prior posting.) In September 2018, the U.S. 5th Circuit Court of Appeals upheld the statute. (Full text of opinion.) In January 2019, the full 5th Circuit, by a vote of 6-9, denied en banc review. (Full text.) Plaintiff appealed the substantive holding to the Supreme Court. (SCOTUSblog case page). The state cross-appealed the grant of standing to plaintiffs. (SCOTUSblog case page). NPR reports on the grant of certiorari.

Northern Ireland's Abortion Restrictions Violate European Human Rights Convention

Yesterday, the High Court in Northern Ireland held that Northern Ireland's abortion law is incompatible with Article 8 of the European Convention on Human Rights insofar as it bars abortions in cases of fatal fetal abnormality. As explained in a Summary of Judgment issued by the court:

In June 2018, the UK Supreme Court ... dismissed an appeal by the Northern Ireland Human Rights Commission... over the legality of the abortion laws in Northern Ireland. A termination is only permitted if a woman’s life is at risk or if there is a risk of permanent and serious damage to her mental or physical health.... The majority of the UKSC held that the abortion law in Northern Ireland was incompatible with Article 8 ECHR [European Convention on Human Rights] in cases of FFA, rape and incest in that it denied women in these situations a lawful termination of their pregnancies for those who wish for it but dismissed the appeal, however, on the procedural issue that the NIHRC did not have the standing to bring the appeal....

Mrs Justice Keegan said she intended to follow the ruling of the UKSC that the law in Northern Ireland is incompatible with human rights in cases of FFA. She declined to follow a course which involved her effectively reopening the arguments already made and decided in relation to Article 8 incompatibility by the UKSC. The judge commented that the decision on substantive compatibility issues was intended by the UKSC to have persuasive force and that any matters of contention in respect of that decision should be corrected by the UKSC itself or by the European Court of Human Rights (“ECtHR”).

A full text of the decision is not yet posted online. The Guardian reports on the decision.

New Survey On Religious Activity In Public Schools

Pew Research Center has released a new survey titled For a Lot of American Teens, Religion Is a Regular Part of the Public School Day. (Full text; Summary)

The survey finds that about four-in-ten teens who attend public schools say they commonly (either “often” or “sometimes”) see other students praying before sporting events at school. This includes about half of teenage public schoolers who live in the South, where students are more likely than those in other regions to witness and partake in various religious expressions at school.

In addition, roughly half of U.S. teens who attend public school say they commonly see other students in their school wearing religious clothing (such as an Islamic headscarf) or jewelry with religious symbols (such as a necklace with a Christian cross or a Jewish Star of David).

About a quarter of teens who attend public schools say they often or sometimes see students invite other students to religious youth groups or worship services. About one-in-six (16%) often or sometimes see other students praying before lunch in their public school. And 8% report that they commonly see other teenagers reading religious scripture outside of class during the school day.....

... 8% of public school students say they have ever had a teacher lead their class in prayer – an action that the courts have ruled is a violation of the Establishment Clause of the Constitution.1 An identical share (8%) say they have had a teacher read from the Bible as an example of literature, which the courts have said is fine.

Court Refuses To Dismiss Challenge To Nativity Scene

In Woodring v. Jackson County, Indiana, (SD IN, Sept. 30, 2019), an Indiana federal district court refused to dismiss an Establishment Clause challenge to a nativity scene that is placed on the Jackson County courthouse lawn each December.  The court said in part:

The Court has no doubt that a lone nativity scene of this size on prominent display on government property would be one of those nativity scenes that gives a reasonable viewer the impression of religious endorsement. Here, however, the nativity scene is not on its own. It is accompanied by two other arguably secular symbols of Christmas: Santa Claus and a group of Christmas carolers.

Nevertheless, two facts alleged in Woodring’s Complaint persuade the Court that this nativity scene would give a reasonable observer the impression that the government is endorsing a religion. The first of those facts is the geography of the display. According to the Complaint, Santa and the carolers are placed “to the far side of the display, away from the side of the sidewalk where the crèche is located.” .... 

That brings the Court to the second decisive fact. The history of this display is that, for many years, it was only a nativity scene. But just recently, after a complaint from the Freedom from Religion Foundation, Jackson County added some secular symbols as a palliative.

Seymour Indiana Tribune reports on the decision.