No Action Under Color of Law In Refusing To Rent Meeting Space To Speaker

In Pasadena Republican Club v. Western Justice Center, (CD CA, Dec. 30, 2019), a California federal district court dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC. In rejecting the Republican Club's civil rights claims, the court said in part:

The court will grant the Center’s and [its former executive director] Chirlin’s motion to dismiss because the complaint does not plausibly allege that the Center and Chirlin were acting under color of state law, as § 1983 requires, or that the City was involved in the alleged conspiracy, as § 1985(3) requires. Although a symbiotic relationship existed to some degree between the Center and the City, this case is distinguishable from Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), upon which the Club relies....

Space Force General Sworn In On Bible Blessed In Controversial Ceremony

As reported by NPR, yesterday, Air Force Gen. John "Jay" Raymond was sworn in as head of the recently created United States Space Force. The swearing-in was unusually controversial because Raymond was sworn in by Vice President Mike Pence using a Bible that was blessed for that purpose at a ceremony last Sunday at the Washington National Cathedral. (Washington Post). Maj. Gen. Steven A. Schaick, chief of chaplains for the U.S. Air Force, held the Bible as it was being blessed.

Yesterday, the Military Religious Freedom Foundation filed a strongly worded letter of complaint (full text) with Secretary of Defense Mark Esper, calling the National Cathedral ceremony "a horrid example of DoD-endorsed, fundamentalist Christian supremacy, ...exclusivity ... and triumphalism...." God and Country blog also has coverage of the controversy.

Attorney Has Standing To Challenge Judge's Prayer Practices

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 13, 2010), a Texas federal district court held that an attorney has standing to challenge a Texas Justice of the Peace's practice of having his court sessions opened with a prayer. The attorney, who is non-religious, has declined clients in order to avoid the judge's courtroom. The court said in part:

Here, Attorney Roe has offered testimony that he practices law in Montgomery County, Texas, has appeared in Judge Mack’s courtroom on several occasions, and that he avoids the courtroom because of Judge Mack’s practice. The harm alleged does not occur only because he enters the courtroom, but also because he must avoid the courtroom since the practice continues. Therefore, there is a substantive risk that were he to accept a case in Judge Mack’s court, he will be exposed to the prayer practice. Hence, Attorney Roe has satisfied the standing requirements.

Judge Mack also challenges the FFRF’s standing. Because the Court has determined that Attorney Roe has standing, the FFRF has associational standing.

Court Upholds Removal of Mosque's Finance Director

In Islamic Center of Passaic, Inc. v. Salahuddin, (NJ App.,Jan. 13, 2020), a New Jersey appellate court upheld the removal of defendant as finance director and member of the governing Shura Board of a New Jersey Islamic Center. Defendant was the wife of the founder and long-time spiritual leader of the Center. She clashed with the Center's new imam, refusing to allow him or the Shura Board to oversee her financial transactions on behalf of the organization.  The court said in part:

Here, the parties' claims arise from Islamic Center's constitution and bylaws and do not involve religious doctrine or practices. The trial court's findings of fact and conclusions of law concern whether Islamic Center complied with the procedures set forth in its organizational documents. Judge LaConte applied neutral principles of law to determine if Salahuddin was lawfully removed from office. Resolution of the parties' purely secular claims did not trespass on their religious freedoms.

With respect to Salahuddin's substantive claims, our scope of review of the judge's findings in this nonjury case is limited. We must defer to the judge's factual determinations, so long as they are supported by substantial credible evidence in the record....

[W]e are convinced there is substantial, credible evidence supporting Judge LaConte's findings of fact. We also agree with his legal conclusion Islamic Center complied with its constitution and bylaws when removing Salahuddin as finance director and Shura Board member.

Pennsylvania Archdiocese Can Be Sued In New Jersey Courts For Priest's Abuse In New Jersey

Doe I v. Archdiocese of Philadelphia, (NJ Super. Ct., Jan. 8, 2020) is a case in which plaintiff sued the Archdiocese of Philadelphia (PA) in a New Jersey court alleging that in the 1970's he was sexually abused by a now-deceased priest who was assigned to a Pennsylvania parish.  The abuse, however, took place in New Jersey.  The suit claims that the Archdiocese was negligent in hiring, supervising and investigating complaints against the priest. Apparently the suit was brought in New Jersey because the state had extended its statute of limitations in child sex abuse cases, while Pennsylvania's statute of limitations would bar the lawsuit.  The New Jersey trial court rejected the Archdiocese's claim that the suit should be dismissed either for lack of jurisdiction or on forum non conveniens grounds. As to jurisdiction, the court said in part:

Here, the alleged conduct by the defendants’ agent ..., while in New Jersey ... caused serious injury – in the form of sexual abuse – to plaintiff. Once the abuse began, Brugger purposely transported plaintiff from Pennsylvania to New Jersey on two additional occasions to continue the abuse....

[P]laintiff is now, and was at all relevant times, a resident of Pennsylvania. Thus, plaintiff’s choice of forum in New Jersey is granted substantially less deference.... Additionally, the majority of potential witnesses are domiciled in Pennsylvania.... The Archdiocese’s principal office is located in ... Pennsylvania.... [However] the Archdiocese previously owned two properties in ... Atlantic County, New Jersey – the very county where the instant litigation pends....The New Jersey property ownership took place during the times relevant to this litigation, although no alleged abuse by Brugger occurred at either location....

Under this set of facts, it would not be a violation of defendants’ due process rights to subject them to the long-arm jurisdiction of the Courts of New Jersey, given their contacts with this State.....

Denying defendants' forum non conveniens defense, the court said in part:

the alternate forum, Pennsylvania, is inadequate as there remains no remedy there for the plaintiff due to its strict statute of limitations.

Brazil's Supreme Court Head Allows Video Satirizing Jesus to Be Shown On Netflix

AFP and AP report that the President of Brazil's Supreme Federal Court last Thursday overturned a lower court's preliminary injunction against the Netflix film The First Temptation of Christ. The film depicts Jesus in a gay relationship. In his decision last Thursday,  Judge Antonio Dias Toffoli said in part:

One cannot suppose that a humorous satire has the ability to weaken the values of the Christian faith, whose existence is traced back more than two thousand years, and which is the belief of the majority of Brazilian citizens.

On Christmas Eve, the Brazilian headquarters of Porta dos Fundos -- the company that produced the film-- were pelted with Molotov cocktails.

British Criminal Prosecution of Husband For Coercive Behavior Used To Obtain Jewish Divorce ("Get")

Britain's Serious Crime Act 2015, Sec. 76, criminalizes controlling or coercive behaviour in an intimate or family relationship. Jewish Chronicle yesterday reported that for the first time the law has been used in a private prosecution brought by a wife to obtain a get (Jewish divorce document) from her husband. According to the paper:

The husband was due to face a crown court trial in July and, if convicted, could have been jailed for up to five years.

But she has discontinued the case after her ex-husband finally gave the get last month.

Challenge To Missouri Vaccination Exemption Form Is Dismissed

Reiterating his reasoning in a November preliminary injunction decision, a Missouri federal district judge in W.B. v. Crossroads Academy- Central Street, (WD MO, Jan. 10, 2020), dismissed a challenge to the form that Missouri requires to be completed in order to claim a religious exemption for a school child from vaccination requirements. The form contains language strongly encouraging parents to obtain vaccinations for their children. The court said in part:

I again conclude that if the State wishes to require vaccination of school children, there is an unbroken collection of cases confirming that it can do so. It can also advocate vaccination... Such advocacy (right or wrong) deals with public health issues. It is entirely secular in nature and motive, not “hostile to religion.” For instance, it would not be hostile to a religious objection to eating pork for an agency to certify that pork is safe to eat. The certification, like the DHSS language here, is religiously neutral.... There is also no case-law cited by plaintiffs tending to show that parents are subject to a compelled speech regime when the DHSS message appears at the top of the exemption form that they are required to fill out. The text is in no way ambiguous as to the source of the vaccination recommendation.

NPR reports on the decision.

Challenge To Form 990 Rules Is Dismissed

In Nonbelief Relief, Inc. v. Rettig, (D DC, Jan. 10, 2020), the D.C. federal district court dismissed a challenge by a non-profit organization to the exemption which excuses churches from filing an annual form 990 with the Internal Revenue Service.  NonBelief Relief was formed to assist atheists and other non-religious individuals.  It contributes funds to other charitable organizations. When NonBelief Relief failed to file its Form 990 for three years, its tax-exempt status was revoked.  It then sued seeking an injunction reinstating its status, and a declaratory judgment that the church exemption violates the Establishment Clause.  The court first held that the Anti-Injunction Act and the Declaratory Judgment Act bar granting relief:

... the award of an injunction or declaratory judgment on NonBelief Relief’s behalf would restrain the government’s collection of taxes against NonBelief and its donors.

The court went on to hold that once NonBelief Relief's tax exempt status was revoked, it lost standing to challenge the constitutionality of the church exemption from filing Form 990:

NonBelief Relief alleges that it suffered an injury when, as a 501(c)(3) tax-exempt organization, it was required to file a Form 990, while churches and other religious institutions were not. But assuming that is so, that injury is neither ongoing nor imminent, because NonBelief Relief is no longer a tax-exempt organization and has expressed no intent to reapply for that status..... [I]t is being treated the same as all other non-501(c)(3) organizations.

3rd Circuit: Deprivation of Chaplain Visits Did Not Substantially Burden Inmate's Free Exercise

In Quiero v. Ott, (3rd Cir., Jan. 9, 2020), the U.S. 3rd Circuit Court of Appeals held that a prisoner's free exercise of religion was not substantially burdened by being deprived of chaplain visits for ten days.

Recent Articles of Interest

From SSRN:

• Nathan S. Chapman, The Weight of Judgment, (Christianity and the Criminal Law, eds. Norman Doe, Dick Helmholz, Mark Hill, John Witte, Jr. (London: Routledge), Forthcoming).
• David A. Skeel, Christianity and Bankruptcy, (Forthcoming In Christianity and Market Regulation (Daniel Crane & Samuel Gregg eds., Cambridge University Press 2020).
• Carlo Pedrioli, Is Incitement on the Internet Easier to Punish than Incitement on Television? A Case Study of the Koran-Burning of Florida Pastor Terry Jones, (Free Speech, Privacy and Media: Comparative Perspectives 49 (Russell L. Weaver, Mark D. Cole, Steven I. Friedland, Duncan Fairgrieve, András Koltay & Arnaud Raynouard eds., 2019)).
• Richard F. Duncan, Defense Against the Dark Arts: Justice Jackson, Justice Kennedy and the No-Compelled-Speech Doctrine, (December 19, 2019).
• David S. Cohen, The Promise and Peril of a Common Law Right to Abortion (Symposium Review of Anita Bernstein's The Common Law Inside the Female Body), (Northwestern University Law Review, Vol. 114, 2019).
• Meghan Boone, Reproductive Due Process, (The George Washington University Law Review, 2020 (Forthcoming)).
• Kathy L. Cerminara, Cruzan's Legacy in Autonomy, (SMU Law Review, Forthcoming).

From SSRN (Non-US Law):

• Iqra Saleem Khan, Consent in Marriage: A Radical Feminist Analysis of Pakistani Law, (William & Mary Journal of Women and the Law, Vol. 26, No. 3, 2020).
• Derek Ross & Deina Warren, Religious Equality: Restoring Section 15's Hollowed Ground, (91 Supreme Court Law Review (2d), 2019).
• Assaf Likhovski, A Colonial Legal Laboratory? Jurisprudential Innovation in the British Empire, (American Journal of Comparative Law (Forthcoming)).
• Sahar F. Aziz, 'Whosoever Sees An Evil' - Muslim Americans' Human Rights Advocacy, (Oxford Research Encyclopedia of Religion (Spring 2020)).
• P. Y. Lo, Hong Kong Courts and Same-Sex Marriage: Could Judicial Recognition of Spouse of Same-Sex Marriage Celebrated in Foreign Jurisdictions Be the Prelude for Judicial Recognition of Same-Sex Marriage Locally? (December 21, 2019).
• Alessio Romarri, Do Far-Right Mayors Increase the Probability of Hate Crimes? Evidence From Italy, (December 19, 2019).

UPDATE: Vol. 34, Issue 2 of the Journal of Law and Religion has been published online and is available without charge until Feb. 15.

11th Circuit OKs Disqualification of Juror Who Heard From A Higher Being

In United States v. Brown, (11th Cir., Jan. 9, 2020), the U.S. 11th Circuit Court of Appeals affirmed the trial court's dismissal of a juror in the fraud case of former Florida representative Corrine Brown. At issue was a statement made by one of the jurors during deliberations. He told the other jurors:

A Higher Being told me Corrine Brown was Not Guilty on all charges.

Judge Rosenbaum agreed with the district court that the juror was not capable of reaching a verdict based only on the evidence at trial. Judge Conway concurred specially

Judge Pryor filed a 62-page dissent, saying in part:

One persistent confusion that has plagued this appeal is the notion that a juror’s belief that he has received divine guidance reflects a form of improper outside influence.... This confusion cannot withstand scrutiny. Indeed, it betrays a failure to reflect on the nature of prayer. ...

Juror No. 13’s statement that God had communicated with him described an internal mental event, not an external instruction.

[Thanks to Doug Velardo for the lead.]

5th Circuit: Firefighter Was Offered Reasonable Accommodation of His Anti-Vaccination Beliefs

In Horvath v. City of Leander, Texas, (5th Cir., Jan. 9, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit brought by Brett Horvath, a Baptist minister who was employed as a driver/ pump operator by the Leander, Texas Fire Department.  As recounted by the court:

In 2016, the Fire Department began requiring TDAP vaccinations, to which Horvath objected on religious grounds. He was given a choice between two accommodations: transfer to a code enforcement job that did not require a vaccination, or wear a respirator mask during his shifts, keep a log of his temperature, and submit to additional medical testing  He did not accept either accommodation and was fired by Fire Chief Bill Gardner for insubordination. Horvath filed suit against Chief Gardner and the City, alleging discrimination and retaliation in violation of Title VII and the Texas Commission on Human Rights Act (TCHRA), and violations of 42 U.S.C. § 1983 premised on violations of his First Amendment Free Exercise rights.

The majority concluded that the city had offered Horvath reasonable accommodations of his religious beliefs, and that the respirator alternative did not burden his religious beliefs.

Judge Ho filed a lengthy opinion dissenting in part. He was very critical of both the Supreme Court's Smith precedent and the current jurisprudence on qualified immunity.

Wife of Sex Offender Sues Church For Reporting Confessed Abuse

The Salem (OR) Statesman Journal reports on a suit filed recently in an Oregon state trial court by the wife of convicted sex offender Timothy Johnson. She claims that leaders of the Turner, Oregon Latter Day Saints congregation breached their duty to her husband in reporting his confessed sex abuse to authorities. According to the report, Johnson followed church doctrine by confessing and repenting his sins in front of clergy and the church court:

The clergy portrayed that such a confession and repentance was dictated by church doctrine, and church doctrine required strict confidence of such confessions, according to the lawsuit.....

But what leaders failed to advise Johnson of is that if he confessed to the abuse, they would report his actions to local law enforcement, according to the lawsuit. 

The lawsuit filed in Oregon singled out a man who served as a counselor to Johnson's bishop, claiming the church failed to properly supervise him and train him of his obligations as a member of the clergy.

The suit seeks damages of $9.5 million on behalf of Johnson's wife and four children.

Retaliation Suit Over Nursing School Hiring Decision Moves Ahead In Part

In Isabell v. Trustees of Indiana University, (ND IN, Jan. 7, 2020), an Indiana federal district court allowed a nursing school adjunct professor to move ahead with her First Amendment retaliation claim against the chair of the school's hiring committee.  Plaintiff claims that she was not hired for a regular faculty position that was open because of her pro-life views. The court however dismissed plaintiff's claim against the University under Indiana's Conscience Act. because of 11th Amendment immunity. Indiana Lawyer reports on the decision. [Thanks to Steven Coleson for the lead.]

Jehovah's Witness Practices Are Within Confidentiality Exception To Mandatory Abuse Reporting

In Nunez v. Watchtower Bible and  Tract Society of New York, Inc., (MT Sup. Ct., Jan. 8, 2020), the Montana Supreme Court reversed a jury award of $35 million in compensatory and punitive damages against the Jehovah's Witnesses for violating Montana's statute mandating reporting of child abuse.  The court concluded that Jehovah's Witnesses came within an exception in the statute for communications required to be confidential under church law or established practice. The court said in part:

[W[e decline to conduct further inquiry into the validity of Jehovah’s Witnesses’ tenets and doctrines, including its canon and practice for adherence to a requirement of confidentiality in handling child abuse reports. Jehovah’s Witnesses representatives testified that its process for addressing these reports is strictly confidential, notwithstanding the involvement of numerous church clergy and congregants.... 

We hold accordingly that the undisputed material facts in the summary judgment record demonstrate as a matter of law that Jehovah’s Witnesses were not mandatory reporters under § 41-3-201, MCA, in this case because their church doctrine, canon, or practice required that clergy keep reports of child abuse confidential, thus entitling the Defendants to the exception of § 41-3-201(6)(c), MCA. The reporting statute as written accommodates Jehovah’s Witnesses’ definition and practice of confidentiality.

[Thanks to James Phillips for the lead.]

Teacher Can Pursue Title VII Claims In Dispute Over Transgender Student Policy

Kluge v. Brownsburg Community School Corp., (SD IN, Jan. 8, 2020), involved a suit by a former high school music teacher who was forced to resign for resisting the school's policy that required teachers to address transgender students by their preferred names and pronouns.Plaintiff claimed that the requirement violates his sincerely held religious beliefs. The court dismissed plaintiff's 1st and 14th Amendment claims, but allowed him to move forward on his claims of failure to accommodate in violation of Title VII, and his Title VII retaliation claim.

Challenge To Hospital's Reliance on Church Plan Exemption From ERISA Dismissed

In Sheedy v. Adventist Health System Sunbelt Healthcare Corp., 2020 U.S. Dist. LEXIS 2131 (MD FL, Jan. 7,2020), a Florida federal district court dismissed a suit challenging the Seventh Day Adventist Hospital Retirement Plan's reliance on the "church plan" exemption from ERISA, The suit claimed various ERISA violations and violation of the Establishment Clause.  The court dismissed plaintiff's claims on standing and other grounds.

State Senator's Threats Were Not Religious Speech

In Boquist v. Oregon State Senate President Peter Courtney, (D OR, Jan. 7, 2020), an Oregon federal district court rejected claims by Oregon state senator Brian Boquist that his constitutional rights, including his 1st Amendment rights, were violated when state Senate leaders imposed a requirement that he give 12-hours notice before entering the Capitol building. The notice requirement was imposed in reaction to statements made by Boquist that others saw as threatening.  All of this occurred during a political battle in which Republican senators left the Capitol in order to prevent a quorum from being present in the Senate, and the governor ordered state police to arrest them and bring them back. Rejecting Boquist's 1st Amendment claims, the court said in part:

While both sides can point fingers and complain that the other is overreacting to a political situation, Plaintiff’s chosen words on the Senate floor were those of a bully on the playground. As such, they are unprotected fighting words. See Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942).... Remarkably, Plaintiff argues that his statement to Defendant Courtney— “if you send the [S]tate [P]olice to get me, Hell’s coming to visit you personally”—was a statement of religious expression.... But here, Plaintiff seems to overlook the fact that he sounds more like a character out of a Clint Eastwood movie than he does Mother Theresa.... Plaintiff made this statement in anticipation of his potential arrest, not during a religious discussion. Plaintiff also said that if the State Police were to arrest him, they should “send bachelors and come heavily armed.”... These statements, apart and together, resonate more as threats than the expression of theological ideas.

The Oregonian reports on the decision.

India Supreme Court: State Commission Can Choose Teachers For Madrassas

In Rafique v. Managing Committee, Contai Rahamania High Madrasah,(India Sup. Ct., Jan. 6, 2020), a 2-judge panel of India's Supreme Court in a 151-page opinion upheld a law in the state of West Bengal under which a government appointed Commission selects teachers for Islamic Madrassas. The Court held that the Act does not infringe on the right of minority institutions to choose their own teachers, saying in part:

the composition of the Commission with special emphasis on persons having profound knowledge in Islamic Culture and Theology, would ensure that the special needs and requirements of minority educational institutions will always be taken care of...

Times of India reports on the decision.