Bankruptcy Court Upholds Order To Sell Church Property

In In re: Sindesmos Hellinikes-Kinotitos of Chicago, (ED IL Bkrpt., Oct. 25, 2019), an Illinois federal bankruptcy court refused to vacate a prior order for the sale of the Greek Orthodox Holy Trinity Church in Chicago which was $8.2 million in debt to a bank lender. A group of parishioners sought to have the order vacated, claiming that the local church lacked authority to sell the property because the sale had not been approved by a Parish Assembly vote.  The court said in part:

Here, the parties do not contest that the Debtor is subject to the hierarchy of the Greek Orthodox Diocese of America and is so bound by its Uniform Parish Regulations..... Those Uniform Regulations provide that a

Parish may purchase real and person property, or sell, mortgage, or otherwise encumber its real property . . . upon approval of two-thirds (2/3) of the parishioners in good standing present at a Parish Assembly duly called (with at least ten (10) days prior written notice) for that purpose, provided that approval from the respective Hierarch is received . . . .

The crux of the Concerned Parishioners' argument is, however, that while such approval may have been obtained, as the approval of two-thirds of the parishioners was not, the sale is unauthorized.... According to the Opposing Parties, such procedure is one of convenience for the Hierarch but is not an actual vested right of the parishioners....

[F]or the court to conclude that the church intended to vest in its parishioners a property right sufficient to require service under Bankruptcy Rule 6004(c) and sufficient to create a pecuniary interest in the outcome of the sale, the court must attempt to answer fundamental questions of the church's treatment of its parishioners.

Interpreting that ambiguity and resolving those fundamental questions would require this court to probe into the allocation of power within the church, to attempt to posit the church's intent and polity regarding the rights of its parishioners. That, quite simply, cannot happen.

Organization Lacks Standing To Claim Sexual Orientation Discrimination By Christian Business Owners

In Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals, (KY Sup. Ct., Oct. 31, 2019), The Kentucky Supreme Court dismissed on standing grounds a suit against a small business whose Christian owners refused on religious grounds to print T-shirts for a Pride Festival. The court held that because the discrimination complaint was filed only by a gay-rights organization, plaintiff lacks statutory standing:

[B]ecause an “individual” did not file the claim, but rather an organization did, we would have to determine whether the organization is a member of the protected class, which we find impossible to ascertain. No end user may have been denied the service who is a member of the protected class, or perhaps one was. If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden under KRS 446.350. But without an individual, as required by Section 2-32(2)(a), this analysis cannot be conducted.

Justice Buckingham filed a concurring opinion, arguing that the Human Rights Commission had unconstitutionally attempted to compel the business to express ideas with which it disagreed. [Thanks to Tom Rutledge for the lead.]

"Prosperity Gospel" Minister Joins White House Staff

New York Times reported last week that Florida-based evangelist Paula White will join the White House staff in an official capacity. She will work in the Office of Public Liaison as an adviser to the administration's Faith and Opportunity Initiative. White has been part of President Trump's informal religious advisers.  As a proponent of the "prosperity gospel", White is controversial among some Evangelicals.

NOTE TO READERS: RELIGION CLAUSE WILL BE ON BREAK FROM OCT. 21 TO NOV. 3

Religion Clause will be on break from Oct. 21 to Nov. 3.  Look for regular postings to resume on November 4.

Recent Articles of Interest

From SSRN:

• Shaakirrah Sanders, Religious Healing Exemptions and the Jurisprudential Gap Between Substantive Due Process and Free Exercise Rights, (8 U.C. Irvine L. Rev. 633 (2018)).
• Farnush Ghadery, 'Sticking to Their Guns': The United Nations' Failure to See the Potential of Islamic Feminism for the Promotion of Women's Rights in Afghanistan, (October 8, 2019).
• Perry Dane, 'Avinu, Malkeinu, Kin(g) of All the Earth': A Yom Kippur D’var Torah, (October 4, 2019).
• Dimitry Kochenov & Uladzislau Belavusau, Same-Sex Spouses in the EU after Coman: More Free Movement, But What about Marriage?, (EUI Working Paper (Florence) No. 2019/3).
• Deepa Das Acevedo, Just Hindus, (Law & Social Inquiry (2020, Forthcoming)).
• Joshua Jones, Title IX's Substantive Equity Mandate for Transgender Persons in American Law Schools: A Call to Disaggregate SOGI Data, (Forthcoming, Spring 2020, Vol. 44.3 NYU Review of Law and Social Change).
• Andrew T. Hayashi, The Law and Economics of Animus, (Virginia Public Law and Legal Theory Research Paper No. 2019-57).

Court In India Reduces Power of Ecclesiastical Courts In Goa

Hindustan Times of Oct. 19 reports:

After hearing two separate petitions filed by persons whose marriages were annulled by a so-called church court, the Bombay high court at Goa has struck down Article 19 of a Portuguese edict that gave legal sanctity to rulings of ecclesiastical tribunals in the former Portuguese colony

The high court said the article was “unconstitutional, illegal, null and void and ultra vires Articles 14 and 21 of the Constitution of India.”

The decree in question, Portuguese Decree 35461, has its origin in a 1940 agreement between the government of Portugal and the Holy See.... The decree went into effect in Goa in 1946 and governs marriages and divorces of Catholic couples. But in doing so, it virtually reduced the role of civil courts to administrative bodies, merely tasked with ensuring the execution of orders passed under the decree....

Interpreting the judgement, [a former law commissioner] said that now, couples who seek annulment of a church marriage can approach the ecclesiastical tribunals, but will also have the option of approaching the civil courts to dissolve the civil aspect of marriage....

Hong Kong Court: No Protection For Same-Sex Marriage or Civil Unions

In MK v. Government of HKSAR, (HKCFI, Oct. 18, 2019), the Hong Kong Court of First Instance ruled that Article 37 of Hong Kong's Basic Law  providing protection for the freedom of marriage applies only to heterosexual marriage.  It also held that the government does not have a duty to provide a legal framework, such as civil unions, as an alternative to protect same-sex couples. JURIST reports on the decision.

European Court Says Azerbaijan Must Exempt Jehovah's Witnesses From Military

As reported by Courthouse News Service:

The European Court of Human Rights ruled Thursday that Jehovah’s Witnesses in Azerbaijan cannot be forced to serve in the military.

“Freedom of thought, conscience and religion [is] one of the cornerstones of a ‘democratic society’ within the meaning of the” European Convention on Human Rights, the court said in a press release announcing the decision.

Here is the full text of the decision in French in In re Mammadov v. Azerbaijan, (ECHR, Oct. 17, 2019).

Attorney General Barr Speaks On Religious Liberty At Notre Dame

On Oct. 11, U.S. Attorney General William Barr delivered a lengthy address (full text) on religious liberty at Notre Dame University. Here is an excerpt:

... [L]aw is being used as a battering ram to break down traditional moral values and to establish moral relativism as a new orthodoxy....

First, either through legislation but more frequently through judicial interpretation, secularists have been continually seeking to eliminate laws that reflect traditional moral norms.

At first, this involved rolling back laws that prohibited certain kinds of conduct. Thus, the watershed decision legalizing abortion. And since then, the legalization of euthanasia. The list goes on.

More recently, we have seen the law used aggressively to force religious people and entities to subscribe to practices and policies that are antithetical to their faith.

The problem is not that religion is being forced on others. The problem is that irreligion and secular values are being forced on people of faith.

This reminds me of how some Roman emperors could not leave their loyal Christian subjects in peace but would mandate that they violate their conscience by offering religious sacrifice to the emperor as a god.

Similarly, militant secularists today do not have a live and let live spirit - they are not content to leave religious people alone to practice their faith. Instead, they seem to take a delight in compelling people to violate their conscience.

EEOC Sues Over Harassment of Pentecostal Employees

The EEOC announced yesterday that it has filed suit against Service Caster Corp. alleging discrimination and harassment of three employees because of their Puerto Rican national origin and their Pentecostal religion. The complaint (full text) in EEOC v. Service Caster Corp., (ED PA, filed 9/30/2019), alleges in part that the plant manager repeatedly referred to Pentecostalism as a " disgusting cult".

Cert. Denied In Challenge To High School Unit On Islam

On Tuesday, the U.S. Supreme Court denied review in Wood v. Arnold, (Docket No. 18-1438, certiorari denied 10/15/2019). (Order List.)   In the case, the 4th Circuit Court of Appeals rejected a high school student's Establishment Clause and compelled speech challenges to a classroom unit on The Muslim World.  One challenge was to the teacher's Power Point slide which included the statement that most Muslims' faith is stronger than that of the average Christian.  The other challenge was to the requirement on a work sheet for the student to fill in two words of the shahada. (See prior posting.) The Free Thinker blog has more on the case.

Naval Base Protesters May Not Raise RFRA or 1st Amendment Defenses

In United States v. Kelly, (SD GA, Oct. 11, 2019), a Georgia federal magistrate judge ruled that seven Catholics who are members of an activist group opposed to nuclear weapons cannot raise RFRA or First Amendment defenses in their trial for trespass and destruction of government property.  Defendants broke into a highly secured Naval Submarine Base and in protest of nuclear weapons poured blood on the ground, hung banners and painted messages. (See prior posting.)  The court said in part:

Here, the Court has already fully considered Defendants’ RFRA arguments in the course of ruling on Defendants’ motions to dismiss. In its ruling, the Court determined that the Government has shown a compelling interest and that it is utilizing the least restrictive means...., Because this determination has been made as a matter of law, and Defendants may not present a RFRA defense to the jury at trial....

Court Vacates Obama-Era Rule Mandating Gender Transition and Abortion Procedures

In Franciscan Alliance, Inc. v. Azar, (ND TX, Oct. 15, 2019), a Texas federal district court vacated and remanded for further consideration a rule issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. The court relied on reasoning in its earlier preliminary injunction decision (see prior posting) concluding that requiring health care providers to perform and provide insurance coverage for gender transitions and abortions in violation of their religious beliefs violates RFRA.  The court held that vacatur is the proper remedy for an unlawful agency rule, and so refused to also issue a nationwide permanent injunction. In the case the court had allowed the ACLU and the River City Gender Alliance to intervene to defend the Obama administration rule. Becket Law issued a press release announcing the decision.

Secy. Pompeo Speaks To Christian Conference

Secretary of State Mike Pompeo spoke on Friday to the American Association of Christian Counselors meeting in Nashville, Tennessee.The full text of his remarks titled "Being a Christian Leader" are featured on the State Department's website, along with a video of his remarks. Pompeo said in part:

... I’m especially telling the truth about the dire condition of religious freedom around the world. America has a proud history of religious freedom, and we want jealously to guard it here.  But around the world, more than 80% of mankind lives in areas where religious freedom is suppressed or denied in its entirety.

The Chinese Communist Party ... is detaining and abusing more than one million Uighur Muslims in internment camps in the Xinjiang. ...

So Christian pastors today are being unlawfully arrested, beaten, detained inside the Islamic Republic of Iran.  We need to speak about this.

Christian areas in northern Iraq that I’ve had the privilege to visit have been ravaged by ISIS, part of a greater trend of Christian persecution all across the Middle East.

And so the truth – for the past two years we’ve spoken the truth.  We’ve hosted ministerials....  We’ve told the world about these shortfalls and the success of nations when individuals are given their basic human dignity to practice their conscience, their faith, or to choose no faith if they so choose all around the world.

Recent Articles of Interest

From SSRN:

• Ryan T. Anderson & Robert George, The Baby and the Bathwater, (National Affairs, Number, 41, Fall 2019).
• Chad Flanders & Sean Oliveira, An Incomplete Masterpiece, (UCLA Law Review, Vol. 66, 2019).
• Chad Flanders, In (Partial) Praise of (Some) Compromise: Comments on Tebbe, (Journal of Civil Rights & Economic Development, vol. 31, no. 2, 2018).
• Richard Schragger, Unconstitutional Government Speech, (Virginia Public Law and Legal Theory Research Paper No. 2019-56 (2019)).
• Jean Galbraith & Beatrix Lu, Gender-Identity Protection, Trade, and the Trump Administration: A Tale of Reluctant Progressivism, (Yale Law Journal Forum, Vol. 129, P. 44, 2019).
• Caroline Mala Corbin, The Supreme Court's Facilitation of White Christian Nationalism, (Alabama Law Review, Forthcoming).
• Zainuddin Zainuddin, Restorative Justice Concept on Jarimah Qishas in Islamic Criminal Law, (Jurnal Dinamika Hukum Vol. 17 No. 3, September 2017).
• Yasmin Raafat, Sugar-Coating Female Genital Mutilation in United Nations Documents in English and Arabic: A Diachronic Study of Lexical Variation, (International Journal of Linguistics, Literature and Translation (IJLLT), 2019).
• Norman I. Silber, Foreign Corruption of the Political Process Through Social Welfare Organizations, (Northwestern University Law Review, Vol. 114, 2019).

Citizen Lacks Standing To Challenge City's Annual Menorah Lighting

In Taylor v. City of Flagstaff, (D AZ, Oct. 9, 2019), an Arizona federal district court held that a citizen of Flagstaff, Arizona lacked standing to challenge the constitutionality of the city's annual Grand Menorah Lighting at City Hall.  The court said in part:

Although Plaintiff is a resident of Flagstaff..., Plaintiff did not allege that he has had direct contact with the Grand Menorah Lighting at City Hall, or any other religious ceremony purportedly held in City Hall. According to the Complaint, Plaintiff’s contact with the Grand Menorah Lighting at City Hall has, at most, been via newspaper articles reporting the “Flagstaff Hanukkah tradition.”.... While Plaintiff alleges that he has been “quite concerned” and “very disturbed” by the Grand Menorah Lighting at City Hall, ... —without more, the injury asserted by Plaintiff is too generalized and remote to confer standing....

The court concluded that the same test for standing applies to both plaintiff's Establishment Clause claim and his claim under the no-aid provision of the state constitution.

USCIRF Launches New Database of Religious Persecution Victims

On Monday at an International Religious Freedom Roundtable in Washington, D.C., the U.S. Commission on International Religious Freedom announced that it has launched the Freedom of Religion or Belief (FoRB) Victims List. The database lists those who have been victims of religious persecution in countries that USCIRF has recommended be designated "Countries of Particular Concern" under the International Religious Freedom Act.

EEOC Sues Over Denial of Religious Accommodation To Messianic Jewish Employee

The EEOC yesterday announced the filing of a lawsuit against Center One, LLC, a call center company:

According to the EEOC's lawsuit ..., a call center employee at Center One's Beaver Falls, Pa., location, who is an adherent of Messianic Judaism, sought a reasonable accommodation of his religious beliefs and practice that he abstain from work on days of religious observance.... Center One imposed disciplinary points against the Messianic Jewish employee for his absences in observance of Rosh Hashanah and Yom Kippur. Center One required that the employee provide a certification from a religious leader or religious organization "on letterhead" as a precondition of granting him time off as a reasonable accommodation and imposed disciplinary points against the Messianic Jewish employee for his absences in observance of those religious holidays...

EEOC Suit Over Insults To Muslim Employees Settled

The EEOC announced  that a consent decree was signed on Tuesday settling a suit against Haliburton Energy Services. The suit charged that two Muslim workers were subjected to taunts and name calling over their religion and national origin. One was fired for complaining about his treatment.  In the consent decree, the company agreed to pay $275,000 in damages. The decree also enjoined future violations and requires training of human resource and managerial employees. (See prior related posting.)

Court Defers To Decisions of Parent Body In Dispute With Break-Away Presbyterian Congregation

In Presbytery of Seattle v. Schulz, (WA App., Oct. 7, 2019), a Washington state appellate court upheld a trial court's deference to decisions of the Administrative Commission set up by the Presbyterian Church USA's representative in connection with disputes regarding a break-away congregation.  Finding that the Presbyterian church is a hierarchical church, the court concluded that the trial court correctly deferred to the decisions of the Administrative Commission that the disaffiliation of the First Presbyterian Church of Seattle was invalid, any interest it had in church property was held in trust for the benefit of Presbyterian Church USA, and the church's severance agreements with its pastors were invalid.  The court rejected the argument by the local church that the national body no longer had ecclesiastical jurisdiction over it once it disaffiliated, so determinations after that date by the Administrative Commission should not binding.