Religion Clause

Monday, December 23, 2019

Catholic Agency Charges County With Retaliation

Suit was filed in a Michigan federal district court last week by St. Vincent Catholic Charities of Ingham County, Michigan challenging the county's refusal to renew a grant for services to refugees, The complaint (full text) in St. Vincent Catholic Charities v. Ingham County Board of Commissioners, (WD MI, filed 12/16/2019) contends that the county's action was in retaliation for a lawsuit by St Vincent's challenging a state requirement that Catholic adoption and foster care agencies place children with same-sex couples, (See prior posting.) The current lawsuit claims that the county's action amounts to unconstitutional retaliation, and violates its free speech and free exercise rights. Detroit News reports on the lawsuit.

Sunday, December 22, 2019

Free Exercise Challenge To Vermont's Dual Enrollment Program Moves Ahead

In A.M. v. French, (D VT, Dec. 29, 2019), a Vermont federal district court refused to dismiss plaintiffs' claim that Vermont's administration of its Dual Enrollment Program for high school students violates their right to free exercise of religion. Vermont pays tuition for high school students to take a limited number of courses at colleges. While public school, home schooled and private non-sectarian school students may participate in the program, students at religious high schools are not eligible. The court held in part:

Because Plaintiffs have plausibly alleged that the DEP Provision is not neutral and generally applicable, the burden shifts to Defendant to prove that the State's enforcement of the DEP Provision withstands strict scrutiny....

The State's intent appears to be ... the avoidance of using public fundes to subsidize religious worship. A state's "policy preference for skating as far as possible from religious establishment concerns" is not a state interest of the highest order because "achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution ... is limited by the Free Exercise Clause." Trinity Lutheran, 137 S. Ct. at 2024....

The court also rejected as adequate other justifications offered by the state for the exclusion of religious school students. (See prior related posting.)

2nd Circuit: Rabbinical College Prevails In Part of Its Zoning Law Challenge

In Congregation Rabbinical College of Tartikov, Inc. v. Village of Pomona, (2d Cir., Dec. 29, 2019), the U.S. 2nd Circuit Court of Appeals in a 104-page opinion affirmed in part the judgment in favor of those supporting construction of a rabbinical school ("TRC") in a New York village. The court found that plaintiffs had standing to bring their equal protection claim. It summarized its holding:

TRC and future students and faculty (collectively, “Tartikov”) filed this action against the Village and its board of trustees seeking to declare unconstitutional the two amendments enacted after its plans became known. In addition, it challenged two other amendments that had been passed earlier. After a bench trial, the district court found that all four zoning law amendments were tainted by religious animus, enjoined their enforcement, and entered a broad injunction sweeping away or modifying for these plaintiffs New York State and local laws that otherwise would apply. The Village challenges the decision below. Its central contention is that the findings of religious animus were clearly erroneous. Tartikov cross appeals from a number of pretrialrulings that limited the scope of its claims.

After careful consideration of the extensive record, we decline to overturn the district court’s findings that religious animus motivated the two zoning amendments passed after the plaintiffs’ wishes became known and thus affirm the injunction barring their enforcement. But we respectfully conclude that there was insufficient evidence to support such a finding as to either of the two earlier zoning amendments and therefore reverse that portion of the judgment. We conclude also that the injunctive relief went further than was appropriate and modify those aspects of the judgment as well. We affirm as to the cross-appeal.

Friday, December 20, 2019

USCIRF Reauthorized By Congress

Congress yesterday gave final passage to HR1865, Further Consolidated Appropriations Act, 2020 (full text). Title VIII of the Act reauthorizes the United States Commission on International Religious Freedom for three more years. The reauthorization bill makes a number of other changes to USCIRF's operations, including:

(1) requiring election of a Chair and Vice Chair at the first meeting of the Commission after May 30 each year, and requiring that they be of different political parties, with chair and vice chair's party rotated each year.

(2) USCIRF is to track the implementation of its recommendations and the effectiveness of such implementation.

(3) Commissioners invited to speak on behalf of USCIRF must notify other Commissioners of the invitation and must reflect Commission views in their remarks. Commissioners who are speaking in their private capacities must make this clear.

(4) If the government makes a payment to settle a harassment claim against a Commission member, the member shall be removed from the Commission.

Separately, on Dec. 18, the Senate approved the appointment of Rabbi Sharon A. Kleinbaum as a USCIRF commissioner.

Settlement Reached In Suit Over Homeless Shelter

A settlement has been reached in the RLUIPA lawsuit filed last month (see prior posting) by the Shawnee Mission Unitarian Universalist Church against the city of Lenexa, Kansas over denial of zoning approval for an overnight winter homeless shelter. According to a press release from the church's law firm, the settlement agreement allows the shelter to operate from Dec. 13 to April 1, with various conditions. In addition the city has agreed to work with the Church to produce an ordinance within the next 3 years to allow homeless ministries in city.

Thursday, December 19, 2019

New Law & Religion Bibliography

The AALS Section on Law and Religion has issued its 2019 Newsletter which includes a 17-page Law and Religion bibliography. Access the full Newsletter here.

British Court Says Sikh Challenge To Census Proposal Is Premature

In Gill, R (on the application of) v UK Statistics Authority, (EWHC, Dec. 12, 2019), a High Court judge in England dismissed as premature a challenge to a proposal by the UK Statistics Authority not to include a Sikh ethnic group tick box response in the 2021 census. Under the proposal there would be a specific "Sikh" response under "Religion", but those wishing to list themselves as Sikh under ethnicity would need to check the "Other, specify" box. The court agreed with the government's claim, which the court described as follows:

[T]his claim is a pre-emptive challenge to the exercise of the Queen's powers ... before the Minister has made a final decision on the form of the census questionnaire, or laid the draft delegated legislation before Parliament, and before Parliament and the Queen in Council have had an opportunity to consider it. The Defendant submits that the claim is premature, and in breach of Parliamentary privilege, as a declaration in the terms sought would not respect the separation of powers between the legislature and the judiciary.

Law & Religion UK has more on the decision.

Another Ruling On Business Refusal To Serve Same-Sex Weddings

In Country Mills Farms, LLC v. City of East Lansing, (WD MI, Dec. 18, 2019), a Michigan federal district court refused to grant summary judgment to either side on most of plaintiff's claims growing out of plaintiff's refusal rent his farm venue for same-sex wedding ceremonies. That refusal led to plaintiff being excluded from participating in the city's farmer's market, The court summarized:

Plaintiffs used Facebook to announce both their religious beliefs and their business practices. The City reacted to the Facebook post, culminating in the denial of Country Mill’s application to participate in the East Lansing Farm’s Market. The parties disagree whether City’s actions were because of Plaintiffs’ statement about their religious beliefs or whether the City’s actions were because of Plaintiffs’ statement about their business practices. Because the record contains evidence from which the finder of fact could conclude that the City reacted to Plaintiffs’ statements about their religious beliefs, the cross motions for summary judgment must be denied for many of the claims. The trier of fact must decide what the City’s motivation was.

The court, however, did hold that a portion of the city's non-discrimination ordinance is overbroad. The court also dealt at length with plaintiff's free exercise claims. In part, the court rejected plaintiff's argument that the Supreme Court's Trinity Lutheran decision precludes the city from denying him a public benefit because of his religious belief, saying: "the Trinity Lutheran opinion does not clearly extend beyond religious institutions "

Wednesday, December 18, 2019

Supreme Court Grants Cert. In 2 Ministerial Exception Cases

The U.S, Supreme Court today granted review in two cases involving the scope of the "ministerial exception" doctrine. The Court consolidated the two cases for review. One of the cases is St. James School v. Biel, (Docket No. 19-348, certiorari granted 12/18/2019). In the case, the U.S. 9th Circuit Court of Appeals in a 2-1 decision held that a 5th grade teacher at a Catholic elementary school is not a "minister" for purposes of the ministerial exception doctrine. At issue was a suit under the Americans for Disability Act brought by a teacher whose contract was not renewed. (See prior posting.) The 9th Circuit over 9 dissents denied en banc review. (See prior posting.) The second case in which the Supreme Court granted review is Our Lady of Guadalupe School v. Morrissey-Berru, (Docket No. 19-267, certiorari granted 12/18/2019). In the case, the U.S. 9th Circuit Court of Appeals held that a teacher in a Catholic school is not a "minister" for purposes of the ministerial exception doctrine. (Full text of 9th Circuit decision).

India's Supreme Couirt Will Review Controversial Citizenship Law Amendments

On Dec. 12, India's Citizenship (Amendment) Act, 2019 (full text) that was passed by Parliament received assent of the President. The controversial new law allows migrants who came into India from Afghanistan, Bangladesh, or Pakistan on or before December 31, 2014, and who belong to the Hindu, Sikh, Buddhist, Jain, Parsi, or Christian religious communities, to become citizens. It does not include Muslims from those nations. (Background), Muslims fear that the new law is part of Home Minister Amit Shah's plan to create a nationwide citizens' register to weed out illegal immigrants. Now, according to Bloomberg, India's Supreme Court, in response to more than 50 petitions, will review the constitutionality of the new law. An initial hearing is scheduled for January 22.

Settlement Approved In Muslim Woman's Suit Over Booking Procedures

Minneapolis Star-Tribune reports that a Minnesota federal district court last month approved a $120,000 settlement of a suit brought by a Muslim woman, Aida Shyef Al-Kadi, who was required by Ramsay County jail officials to remove her hijab after she was arrested on a traffic offense.The report goes on:

Along with the $120,000 payout, the settlement includes having the jail put specific rules in place on how to accommodate inmates with religious headwear during the booking photo process.

The county, while not required by the settlement to admit wrongdoing, further agreed to destroy all hard copies and delete any electronic versions of Al-Kadi’s booking photo. Also, the Sheriff’s Office must train its corrections officers on policies concerning inmates and the religious accommodations they require. County Board Chairman Jim McDonough called the terms “fair and in the best interests of our citizens.”

Russian Court Liberalizes Allowed Religious Use of Residences

Forum 18 reports this week on a November 2019 decision by Russia's Constitutional Court liberalizing the permissible religious uses of buildings that are zoned for residential purposes. The report explains:

The case followed a fine imposed on Olga Glamozdinova, a Seventh-day Adventist in Rostov Region, for granting free use of a room in her house to her Church and allowing them to use it as its legal address, when the land is designated for personal part-time crop cultivation. This land use permits the construction of a dwelling, but not of a religious building.

Glamozdinova argued that the house is also occupied as a dwelling by an acquaintance who also tends the crops on the plot, and the congregation uses the room for only four hours per week. The fine was upheld on appeal at both district and regional courts, but the Constitutional Court has now ruled that Glamozdinova's fine is subject to review because the law had been incorrectly applied in her case....

The Court stated, however, that religious use of residential premises must take into account the rights and legitimate interests of residents and neighbours, and the requirements of health and safety and environmental protection legislation. The Court also stated that it would be "unacceptable" for a dwelling to lose the features of residential premises and acquire those of a religious or administrative building....

This November 2019 Constitutional Court ruling may lead to fewer fines being imposed on religious organisations and individuals, but this will depend on Federal Service for State Registration, Cadastre and Cartography (Rosreestr) and other officials....

Tuesday, December 17, 2019

Cert. Denied In Boise Ban On Sleeping Outdoors

Yesterday the U.S. Supreme Court denied review in Boise, ID v. Martin, (Docket No. 19-247, certiorari denied 12/16/2019). (Order List.) In the case the U.S. 9th Circuit Court of Appeals held that the ban on cruel and unusual punishment in the 8th Amendment bars a city from criminalizing sleeping outdoors on public property when homeless people have no option to sleep indoors, including where their access to a shelter is conditioned on their participating in religious programs. (See prior posting.) Los Angeles Times has an Opinion piece on the case.

WAPO: IRS Whistleblower Says Mormon Church Misled Regarding Charitable Accounts

The Washington Post reports today:

A former investment manager alleges in a whistleblower complaint to the Internal Revenue Service that the Church of Jesus Christ of Latter-day Saints has amassed about $100 billion in accounts intended for charitable purposes, according to a copy of the complaint obtained by The Washington Post.

The confidential document, received by the IRS on Nov. 21, accuses church leaders of misleading members — and possibly breaching federal tax rules — by stockpiling their surplus donations instead of using them for charitable works. It also accuses church leaders of using the tax-exempt donations to prop up a pair of businesses.

Judge Who Refused To Perform Same-Sex Ceremonies Sues Over Reprimand

As previously reported, in November the Texas State Commission on Judicial Conduct issued a Public Warning to Justice of the Peace Dianne Hensley because of her refusal to perform same-sex marriage ceremonies. Now a lawsuit has been filled challenging the Commission's action. The complaint (full text) in Hensley v. Texas State Commission on Judicial Conduct, (TX Dist. Ct., filed 12/16/2019) contends that the Commission's action violates Judge Hensley's rights under the Texas Religious Freedom Restoration Act. The complaint also seeks a class-wide declaratory judgment. Fox 44 News reports on the lawsuit.

Monday, December 16, 2019

Cert. Denied In Suit Against Priest Over Baptism Ritual

The U.S. Supreme Court today denied review in Fermin v. Priest of St, Mary- Marfa, Texas, (Docket No. 19-471, certiorari denied 12/16/2019) (Order List). In the case, the U.S, 5th Circuit Court of Appeals (full text of opinion) affirmed the dismissal of a suit in which a Texas man claimed that an unnamed priest used a crucifix during his baptism in 1925 "in violation of God's law" (including the Second Commandment's prohibition of idolatry).

Sunday, December 15, 2019

Lighting Regulations Limiting Use of Catholic School's Baseball Field Do Not Violate RLUIPA

In Marianist Province of the United States v. City of Kirkwood, (8th Cir., Dec. 13, 2019), the U.S. 8th Circuit Court of Appeals rejected a claim by Vianney High School in Kirkwood, Missouri that the city's lighting and sound regulations which limit use of its baseball field at night violate its rights under RLUIPA and state law. The court said in part:

Vianney asserts that various forms of religious exercise “motivate the school’s use” of its baseball field at night. The school emphasizes that athletics is part of the “formation of young men” in the Catholic Marianist tradition and that nighttime sports games allow it to reach out to the community and engage in religious fellowship.... Assuming Vianney’s uses of its baseball field at night ... constitute religious exercise, we examine its claim that the regulations substantially burden this exercise.

Vianney has not demonstrated that its religious exercise is substantially burdened, rather than merely inconvenienced, by its inability to use its baseball field at night.

The court also rejected the school's RLUIPA "equal terms" claim, and held that its state law claims should be dismissed as well.

Saturday, December 14, 2019

5th Circuit Strikes Down Mississippi's Anti-Abortion Law

The U.S. 5th Circuit Court of Appeals yesterday struck down a Mississippi statute that prohibits abortions, with limited exceptions, after 15 weeks' gestational age. In Jackson Women's Health Organization v. Dobbs, (5th Cir., Dec. 13, 2019), Judge Higginbotham writing for himself and Judge Dennis said in part:

In an unbroken line dating to Roe v. Wade, the Supreme Court’s abortion cases have established (and affirmed, and re-affirmed) a woman’s right to choose an abortion before viability. States may regulate abortion procedures prior to viability so long as they do not impose an undue burden on the woman’s right, but they may not ban abortions. The law at issue is a ban. Thus, we affirm the district court’s invalidation of the law, as well as its discovery rulings and its award of permanent injunctive relief.

Judge Ho filed a separate opinion concurring in the judgment, but criticizing the district court's opinion. He said in part:

[W]hat distinguishes abortion from other matters of health care policy in America—and uniquely removes abortion policy from the democratic process established by our Founders—is Supreme Court precedent. The parties and amici therefore draw our attention not to what the Constitution says, but to what the Supreme Court has held.

A good faith reading of those precedents requires us to affirm..... I am nevertheless deeply troubled by how the district court handled this case. The opinion issued by the district court displays an alarming disrespect for the millions of Americans who believe that babies deserve legal protection during pregnancy as well as after birth, and that abortion is the immoral, tragic, and violent taking of innocent human life.

UPI reports on the decision.