Appeals Court Dismisses Suit To Enforce Board's Suspension of Church Pastor

In Stewart v. McCray, (IN App., Dec. 11, 2019), an Indiana state appellate court dismissed a suit seeking to enforce a suspension imposed by the Board of Directors of a Baptist church on its pastor. The trial court had found the pastor in contempt a the court's order enforcing the suspension.  As the court of appeals explained:

This matter stems from a years-long dispute between certain members of the congregation of the Canaan Baptist Church, in Elkhart, Indiana ... and its pastor, Reverend McNeal Stewart, III ... involving allegations that Rev. Stewart usurped the authority of the Church’s board of directors and disregarded the constitution and bylaws of the Church.....

The instant matter arises from Rev. Stewart’s suspension from his pastoral duties for his alleged failure to act in accordance with the Church’s Bylaws. Regardless of whether the parties, at times, failed to adhere to the Church’s Bylaws, at bottom, this is a dispute over the Church’s leadership. As such, this matter, at its core, is purely ecclesiastical and one which the trial court lacked subject matter jurisdiction to adjudicate.

Catholic School Principal's Retaliatory Discharge Claim Dismissed

In Rehfield v. Diocese of Joliet, (IL App., Dec. 10, 2019), an Illinois state appeals court dismissed a suit by the former principal of a Catholic school who contended that she was the victim of a retaliatory discharge. Her suit raised both common law and Whistleblower Act claims. Plaintiff's firing came after controversy over her contacting the police about a threatening phone call from a parent to the parish priest. In dismissing the suit, the court said in part:

[T]he ecclesiastical abstention doctrine applied to Rehfield’s claims. Further, since this case involved the Diocese’s subjective decision to terminate Rehfield’s employment and did not involve church charters, constitutions and bylaws, deeds, State statutes, or other evidence that would resolve the matter the same as it would a secular dispute, we decline to employ the neutral principals of law approach.... Last, because we find the ecclesiastical abstention doctrine applied to Rehfield’s claims, we need not address ... whether claims for common law retaliatory discharge are available to contractual employees.

Trump Signs Executive Order On Title VI and Anti-Semitism

President Trump yesterday issued an Executive Order on Combating Anti-Semitism. The Order reads in part:

Title VI of the Civil Rights Act of 1964 (Title VI), 42 U.S.C. 2000d et seq., prohibits discrimination on the basis of race, color, and national origin in programs and activities receiving Federal financial assistance.  While Title VI does not cover discrimination based on religion, individuals who face discrimination on the basis of race, color, or national origin do not lose protection under Title VI for also being a member of a group that shares common religious practices.  Discrimination against Jews may give rise to a Title VI violation when the discrimination is based on an individual’s race, color, or national origin.

It shall be the policy of the executive branch to enforce Title VI against prohibited forms of discrimination rooted in anti-Semitism as vigorously as against all other forms of discrimination prohibited by Title VI....

The Executive Order goes on to provide that in enforcing Title VI, executive departments shall consider the definition of anti Semitism adopted ... by the International Holocaust Remembrance Alliance, and "the 'Contemporary Examples of Anti-Semitism' identified by the IHRA, to the extent that any examples might be useful as evidence of discriminatory intent."

The White House issued a Fact Sheet on the Order which, as reported by AP, was signed during a White House Hanukkah reception.

Methodist Parent Body Sues SMU Over Attempted Split From Church Control

Suit was filed last week in a Texas state trial court by the regional parent body of the Methodist Church against Southern Methodist University alleging that SMU last month filed invalid amendments to its Articles of Incorporation purporting to eliminate the parent body's control over SMU's board of trustees, over amendments to SMU's Articles of Incorporation, and over sale of SMU's property.  The complaint (full text) in South Central Jurisdictional Conference of the United Methodist Church v. Southern Methodist University, (TX Dist. Ct., filed 12/4/2019), alleges:

The November 2019 Articles make no mention of SCJC, much less any mention of the rights permanently guaranteed to SCJC by SMU’s governing documents. Instead, by deleting any mention of SCJC and its rights, the November 2019 Articles attempt to terminate all of SCJC’s rights and relationship with SMU without approval or authorization of SCJC for the amendment in Violation of SMU’s governing documents and the Trustees’ fiduciary duties to SCJC.

RNS, reporting on the lawsuit, says that the moves by SMU are "part of the latest fallout over the global denomination's decision earlier this year to strengthen language in its rulebook barring LGBTQ members from marriage and ordination."

New USCIRF Report on Apostasy, Blasphemy and Hate Speech Laws In Africa

Yesterday, he U.S. Commission on International Religious Freedom released a 50-page report titled Apostasy, Blasphemy, and Hate Speech Laws in Africa: Implications for Freedom of Religion or Belief (full text of report). The Executive Summary reads in part:

The freedoms of opinion and expression and of religion or belief are intricately intertwined—where violations occur against one, there are often violations against the other. Although these human rights are protected under articles 18 and 19 of the Universal Declaration of Human Rights (UDHR), states around the world continue to pass and enforce laws that restrict both freedoms. This paper provides a survey and analysis of speech restrictions in Africa that have, or may, limit FoRB. Laws that restrict apostasy (the public renunciation of one’s religion), blasphemy (the insult of a religion or religious objects or places), and hate speech (generally encompassing communication that prejudices a particular group based on race, religion, ethnicity, or other factor) all limit freedom of expression. Such laws also have unique implications for citizens’ abilities to express and practice their faith. These laws are prevalent throughout Africa, where at least 9 countries have apostasy laws, at least 25 criminalize blasphemy, and at least 29 have laws against hate speech.

Misunderstanding of RFRA Not A Defense To Willful Failure To File Tax Returns

The Oregonian reports that an Oregon federal district court yesterday found a tax protester guilty on four counts of willful failure to file tax returns.  The verdict came in a second trial on stipulated facts after defendant's first trial ended in a hung jury. The court ruled that while a good faith misunderstanding of the tax law is a defense to "willfulness", that defense was unavailable here. As reported by The Oregonian:

Bowman’s lawyer had argued during Bowman’s jury trial that Bowman’s reliance on another federal law, the Religious Freedom [Restoration] Act, led to his "good faith’' misunderstanding of his obligations under the federal tax code. The judge threw out that defense before Bowman’s second trial, ruling that any "good faith'' misunderstanding had to be of the tax code itself, not another law.

The court's ruling was presumably based on its reading of the U.S. Supreme Court's decision in Cheek v. United States (1991).  An appeal of the conviction is planned.

Court Dismisses Challenges To NY Repeal of Religious Exemption From Vaccination Requirement

In F.F. on behalf of her minor children v. State of New York, (Albany Cty NY Sup. Ct., Dec. 3, 2019), a New York state trial court upheld New York's repeal of the religious exemption to the state's compulsory vaccination requirement for school children.  The court rejected Free Exercise, Free Speech and Equal Protection challenges to the repeal.  The suit was brought by some 55 families of school children. In rejecting free exercise claims by plaintiffs, the parents of school children, the court rejected their argument that the object of the law was to target religion rather than protect public health.  The court went on to say in part:

[P]lainitffs most strenuous argument for applying strict scrutiny is that the repeal of the legislation was infected by statements made by individual legislators whose comments, they say, demonstrate unconstitutional hostility toward plaintiffs' sincerely held religious beliefs.  For this argument, Plaintiffs cite Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Comm'n., (138 S Ct 1719 [2018]), where the Supreme Court relied on the comments of individual members of the Colorado Civil Rights Commission, which sanctioned a baker for his refusal to make a wedding cake for a same sex couple....

This Court declines to extend that part of the Supreme Court's analysis in Masterpiece Cakeshop, which probed the comments of individual members of a decision-making body to the collective decision-making of New York State's Legislature and Executive.... [I]n Masterpiece Cakeshop, the Court considered the remarks of a seven-member administrative body, not a state legislature.

The trial court had previously denied a preliminary injunction against the exemption repeal (see prior posting), and the state appellate court summarily affirmed that decision. Albany Times-Union reports on the trial court's latest decision.

Supreme Court Denies Review Of Kentucky Ultrasound Informed Consent Law

The U.S. Supreme Court today denied review in EMW Women’s Surgical Center v. Meier, (Docket No. 19-417, certiorari denied 12/9/2019). (Order List). In the case, the U.S. 6th Circuit Court of Appeals, in a 2-1 decision, rejected a 1st Amendment free speech challenge to Kentucky's Ultrasound Informed Consent Law. The law requires a doctor to make the fetal heartbeat audible, and to display and describe ultrasound images, to a woman seeking an abortion. (See prior posting.) CNN reports on the Court's action.

Recent Articles and Books of Interest

From SSRN:

• Zalman Rothschild, Free Exercise's Outer Boundary: The Case of Hasidic Education, (119 Colum. L. Rev. F. 200 (2019)).
• Helen Pausacker & Amanda Whiting, Special Issue: Legal Regimes of Sexual Orientation and Gender Identity in Asia, (Australian Journal of Asian Law, Vol. 20, No. 1, Article 1, 2019).
• Stephen Mark Bainbridge, Christianity and Corporate Purpose, (UCLA School of Law, Law-Econ Research Paper No. 19-10 (2019).
• John Makdisi, Aquinas's Prohibition of Killing Reconsidered, (57 J. Cath. Leg. Stud. 67 (2018)).
• Ricardo Perlingeiro & Amanda da Fonseca de Oliveira, 'Laicidade' in Brazil as a Booster to Religious Freedom, (2019).
• Kathryn Chan, Constitutionalizing the Registered Charity Regime: Reflections on Canada Without Poverty v Canada (AG), (Forthcoming in Canadian Journal of Comparative and Contemporary Law, summer 2020).
• James Fishman, The Private Foundation Rules at Fifty: How Did We Get Them and Do They Meet Current Needs?, (Pittsburgh Tax Review, Forthcoming).

From SSRN (Islamic Law):

• Mushtaq Ahmad, Revisiting the Discourse on Islam and Human Rights, (November 21, 2019).
• Muhtaq Ahmad, Discovering the Law without a Coherent Legal Theory: The Case of the Council of Islamic Ideology, (November 19, 2019).
• Ashraf Booley, Progressive Realisation of Muslim Family Law: The Case of Tunisia, (Potchefstroom Electronic Law Journal, Vol. 22, 2019).

Recent Books:

• Nathan Walker, The First Amendment and State Bans on Teachers' Religious Garb: Analyzing the Historic Origins of Contemporary Legal Challenges in the United States, (Routledge, September 4, 2019).
• Jianlin Chen, The Law and Religious Market Theory: China, Taiwan and Hong Kong, (Cambridge Univ. Press, December 2019).

Prison's Denial of Access To Religious Services As Discipline Is Invalid

In Greenhill v. Clarke, (4th Cir., Dec. 6, 2019),the U.S. 4th Circuit Court of Appeals held that, absent further justification, a prison disciplinary policy which denied a Muslim inmate television access to view weekly Jum'ah services violates his free exercise rights protected by RLUIPA and the 1st Amendment. The court said in part:

The VDOC’s Step-Down Program appears to be a sophisticated, well-conceived program to better inmates’ behavior and their confinement, as well as to improve safety and the overall operation of the prison. But holding inmates’ religious exercise hostage to incentivize their participation in the Program is impermissible under RLUIPA. Access to bona fide religious exercise is not a privilege to be dangled as an incentive to improve inmate conduct, and placing such religious exercise in the category of privilege to be earned is fundamentally inconsistent with the right to religious exercise that RLUIPA guarantees to prisoners.....

The court also held that the prison's grooming policy that precludes growing of a 4-inch beard imposes a substantial burden on the Muslim inmate's religious exercise. [Thanks to Will Esser via Religionlaw for the lead.]

3rd Circuit Affirms Dismissal of Title VII Religious Discrimination Suit

In Darby v. Temple University, (3d Cir., Dec. 4, 2019), the U.S. Third Circuit Court of Appeals affirmed the dismissal of plaintiff's claim under Title VII that he was fired by Temple University because of his religion.  The court said in part:

[Plaintiff] states that he wore a cross on a chain around his neck, that he read the bible on breaks, that he spoke openly about attending church services, and that he was employed at Temple for a lengthy period of time. But none of the evidence he produced is sufficient to reasonably infer that his coworkers knew his Baptist identity. More important, none of it relates directly to the person, Thomas Johnston, who terminated his employment. He does not proffer any evidence to show that Johnston knew of his religious affiliation.

Penn Live reports on the decision.

Missouri AG Supports High School Football Coaches' Prayer Practices

Missouri Attorney General Eric Schmitt this week released a letter (full text) which he sent on Dec. 3 to the superintendent of the Cameron, Missouri School District supporting high school football coaches against charges in a letter (full text) from the Freedom From Religion Foundation . In its Oct. 28 letter, FFRF said in part:

It is our understanding the Cameron High School's head football coach, Jeff Wallace, and assistant football coach, David Stucky, have been holding religious "chapel" services for players before and after football games where coaches pray with players and read and discuss bible verses.  We understand that after games, Coach Wallace holds religious services with players on the fifty-yard line and leads players in prayer.  We understand that Coach Wallace often brings in outside preachers to proselytize to players as well.

It is illegal for public school athletic coaches to lead their teams in prayer or religious worship.

Responding to this, Attorney General Schmitt in his letter said in part:

FFRF is an extreme anti-religion organization that seeks to intimidate local governments into surrendering their citizens' religious freedom and to expunge any mention of religion from the public square....

Our understanding is that no coach or other Cameron official has forced any football player to participate in prayer or taken any action against any player who chose not to participate.   The prayer occurs outside of the football game.  The prayer is not broadcast over stadium loudspeakers, and fans evidently cannot hear any part of the prayer.  The school district reports that it received no complaints from anyone about the prayer, and FFRF does not reference any complainant in their letter.   Evidently, FFRF's threat does not reflect any discomfort with the prayers in the local community.  Rather, it reflects only FFRF's radical agenda. And without a complainant, FFRF lacks standing to sue the school district, no matter how strongly it objects to this voluntary prayer.

 Friendly Atheist blog reports on these developments.

Priest Sues Archdiocese Over Inclusion In List of Accused Clergy

A lawsuit was filed last month in a Missouri state trial court by a former priest who claims that the Archdiocese of St. Louis defamed him when it included his name on a widely circulated list of clergy for whom there are substantiated allegations of sexual abuse of a minor. The complaint (full text) in Toohey v. Archdiocese of Saint Louis, (MO Cir. Ct., filed 11/3/2019) contends that the allegations against plaintiff are false, that the Archdiocese never notified plaintiff of the allegations and never gave him an opportunity to rebut the charges. St. Louis Post Dispatch reports on the lawsuit.

Congress Passes Uyghur Human Rights Policy Act

On Tuesday, Congress gave final passage to S.178, the Uyghur Human Rights Policy Act of 2019 (full text). In part, the bill finds that:

The Government of the People’s Republic of China has a long history of repressing approximately 13,000,000 Turkic, moderate Sunni Muslims, particularly Uyghurs, in the nominally autonomous Xinjiang region. These actions are in contravention of international human rights standards, including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights.

The bill goes on to express the sense of Congress that, among other steps:

the President should condemn abuses against Turkic Muslims by Chinese authorities in Xinjiang and call on Chinese President Xi Jinping to recognize the profound abuse and likely lasting damage of China’s current policies, and immediately close the “political reeducation” camps, lift all restrictions on and ensure respect for internationally guaranteed human rights across the region, and allow for reestablishment of contact between those inside and outside China;....

the Secretary of State should fully implement the provisions of the Frank Wolf International Religious Freedom Act ... and consider strategically employing sanctions and other tools under the International Religious Freedom Act....

The bill will now go to the President for his signature.

A New Wave of Clergy Sex Abuse Cases Is Expected

An AP investigative report published on Tuesday highlights the rash of new clergy sex abuse cases being pursued as 15 states have extended or suspended their statutes of limitations to allow even decades-old child sex abuse claims to be filed:

It's a financial reckoning playing out in such populous Catholic strongholds as New York, California and New Jersey, among the eight states that go the furthest with "lookback windows" that allow sex abuse claims no matter how old. Never before have so many states acted in near-unison to lift the restrictions that once shut people out if they didn't bring claims of childhood sex abuse by a certain age, often their early 20s....

AP interviews with more than a dozen lawyers and clergy abuse watchdog groups offered a wide range of estimates but many said they expected at least 5,000 new cases against the church in New York, New Jersey and California alone, resulting in potential payouts that could surpass the $4 billion paid out since the clergy sex abuse first came to light in the 1980s.

Controversy Over Army Licensed Items With Religious Theme

First Liberty Institute yesterday sent a letter (full text) to the U.S. Army complaining about the Army's order to a private faith-based company that is licensed to produce Army-themed products. (Press release). The Army instructed the company to remove Biblical verses from its popular Shields of Strength (SoS) dog tags. Since 9-11, SoS has produced over 4 million dog tags, the most popular carrying the words of Joshua 1:9: "Have I not commanded you? Be strong and courageous. Do not be afraid; do not be discouraged, for the Lord your God will be with you wherever you go."

The Army's action follows a complaint from the Military Religious Freedom Foundation about the religious content of the Army-licensed products.  First Liberty argues, however:

once the Army creates a limited public forum via a trademark licensing regime and allows private entities such as SoS to obtain licenses, the Army cannot “discriminate against speech on the basis of its viewpoint” in the administration of the trademark licensing regime. The Army is therefore prohibited from discriminating against SoS because of its inclusion of biblical references on its products, in its advertisements, or on its website.....

More recently, in Iancu v. Brunetti the Supreme Court ...  invalidated the Lanham Act’s “immoral or scandalous” clause as viewpoint discrimination.....

Clearly, if a prohibition against trademarking offensive, immoral, or scandalous speech constitutes viewpoint discrimination, then certainly the Army’s prohibition against using religious speech in conjunction with its trademark does, too. This is especially true because the Army routinely grants licenses to similar, non-religious speech.

Former Cardinal McCarrick and Newark Archdiocese Sued By Sex Abuse Victim

Just minutes after a new New Jersey law went into effect opening a 2-year window in which previously time-barred sex abuse cases can be filed, suit was filed in a New Jersey state trial court against former Cardinal Theodore McCarrick and the Catholic Archdiocese of Newark. The complaint (full text) in Bellocchio v. Roman Catholic Archdiocese of Newark, (NJ Super. Ct., filed 12/1/2019), states claims for sexual battery against McCarrick, and for negligence against the Archdiocese. It alleges in part:

31. In approximately 1995 or 1996, when Plaintiff was approximately 13 or 14 years old, McCarrick engaged in unpermitted sexual contact with Plaintiff.

32. McCarrick engaged in a similar course of conduct and pattern of sexual predation of devout Catholic youth under his control.

Washington Post and America report on the lawsuit.

Texas Justice of the Peace Warned Over Her Refusal To Perform Same-Sex Weddings

Last month, the Texas State Commission on Judicial Conduct issued a Public Warning (full text) to Justice of the Peace Dianne Hensley. The Nov. 12 warning reads in part:

Beginning on about August 1, 2016, Judge Hensley and her court staff began giving all same-sex couples wishing to be married by Judge Hensley a document which stated "I'm sorry, but Judge Hensley has a sincerely held religious belief as a Christian, and will not be able to perform any same sex weddings." The document contained a list of local persons who would officiate a same-sex wedding....

... Judge Hensley testified that she would recuse herself from a case in which a party doubted her impartiality on the basis that she publicly refuses to perform same-sex weddings.....

... [T]he Texas State Commission on Judicial Conduct has determined that the Honorable Judge Dianne Hensley ... should be publicly warned for casting doubt on her capacity to act impartially to persons appearing before her as a judge due to the person's sexual orientation in violation of Canon 4A(l) of the Texas Code of Judicial Conduct.

Connecticut Rabbi Sentenced To 12 Years In Prison For Sex Abuse of High Schooler

According to the New Haven Independent, a Connecticut trial court judge yesterday sentenced Rabbi Daniel Greer, a once-prominent New Haven religious leader, to 12 years in prison, with 8 years after that on probation. He will also be required to register as a sex offender.  The 79-year old rabbi was convicted on four counts of risk of injury to a minor. The convictions grew out of a series of rapes of a male high school student from 2002 to 2005 while the student was enrolled at Rabbi Greer's New Haven yeshiva. Originally a jury found Greer guilty on four felony counts of child endangerment, but the judge reduced the charges to a lower felony class. Other sexual assault charges were dismissed on technical grounds.  In 2017, a civil jury awarded $21 million in damages against Greer and his yeshiva in a suit by the rape victim.  Little of that has been paid so far.

State Insurance Regulators Target Trinity Health-Care Sharing Ministry

NPR reported earlier this week on enforcement actions by insurance regulators in Texas, Colorado, Washington and New Hampshire against Aliera and its affiliate Trinity HealthShare for violating rules relating to health-care sharing ministries. These plans for sharing health care costs of members are significantly cheaper than standard health insurance policies. Most of the Christian affiliated ministries will not cover abortion services, and offer prayer hotlines for members. The October 30 press release from the New Hampshire Insurance Department announcing its enforcement action states in part:

Trinity represents itself as a health care sharing ministry, which would be exempt from state insurance regulation. A legal health care sharing ministry is a nonprofit organization in existence since December 31, 1999, whose members share a common set of ethical or religious beliefs and share medical expenses among members. [Trinity was not formed until 2018 and did not show it is faith based and limited its membership to those with common beliefs.]

The Department’s Consumer Services Division received dozens of complaints and concerns from consumers. Some people believed they were buying health insurance and did not know they had joined a health care sharing ministry. Many people discovered this when their claims were denied because their medical conditions were considered pre-existing under the plan, or were not covered because they were deemed inappropriate for a “Christian lifestyle.” 

[Thanks to Scott Mange for the lead.]