5th Circuit Clarifies Test For Prior Restraints In Limited Public Forums

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., April 3, 2020), the U.S. 5th Circuit Court of Appeals remanded to the district court a lawsuit by Freedom From Religion Foundation which was denied the right to display its "Bill of Rights Nativity Scene" in the Texas State Capitol building.  The court rejected Texas' sovereign immunity defense and held that under the Ex part Young exception an injunction barring future conduct could be issued. However, it said, under the 11th Amendment the district court cannot grant retrospective relief. It went on:

Among out sister circuits, however, “there is broad agreement that, even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment.” ...

[W]e hold that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, we REVERSE and REMAND for the district court to apply the correct unbridled discretion analysis in the first instance.

New Jersey's COVID-19 Ban Enforced Against Religious Life-Cycle Events

Philadelphia Inquirer yesterday published this report on enforcement in Lakewood, New Jersey of the state's COVID-19 ban on large gatherings:

Fifteen men were charged with violating Gov. Phil Murphy’s ban on large gatherings during the coronavirus crisis after they attended an Orthodox Jewish funeral Wednesday in Lakewood, the Ocean County Prosecutor’s Office said Thursday.

The gathering was one of several in Lakewood in recent weeks in which police were called to break up large groups of people. Other events included a bat mitzvah over the weekend; four separate weddings in which four people who hosted them were charged with a disorderly person offense or with maintaining a nuisance; and a gathering of about 25 young men at a school in which the headmaster was charged with maintaining a nuisance.

Michigan Will Allow Secular Marriage Celebrants

In an April 2 press release, the Center for Inquiry reports:

Secular celebrants are now permitted to officiate and solemnize marriages in Michigan, after the state attorney general reversed the government’s opposition to a lawsuit brought by the Center for Inquiry (CFI). Promising that the state considers CFI-trained and certified Secular Celebrants to be covered by existing statutes regarding marriage solemnization, the presiding federal court brought the case to a close.

New Jersey's Aid In Dying Act Is Upheld

In Petro v. Grewal, (NJ Super., April 1, 2020), a New Jersey state trial court dismissed a suit challenging the constitutionality of New Jersey's Medical Aid in Dying for the Terminally Ill Act.  Plaintiffs challenged the law on numerous grounds, including under the free exercise clause. First the court held that plaintiffs lack standing to challenge the law, saying in part:

Their deeply felt religious, ethical or professional objections to the Act do not suffice to establish standing, even under New Jersey's liberal standard.

The court however went on to also reject plaintiffs' claims on the merits. In part of its opinion, the court rejected plaintiffs' free exercise objections to the obligation of a doctor who refuses to provide aid in dying to transfer health care records to a patient's new doctor. The court said that the law is a neutral law of general applicability, and that the obligation to transfer records is "minimally burdensome."  North Jersey.com reports on the decision.

Interesting RFRA Case Involving Proof of Infant's Citizenship

Sabra v. Pompeo, (D DC, April 2, 2020), is an unusual RFRA case.  Mohammed Sabra and his wife Ponn Sabra are United States Citizens.  Here are Mrs. Sabra's claims, as recounted by the court:

In September 2018, Mrs. Sabra moved from the United States to Gaza with her three daughters because her two eldest daughters attend college there.... After arriving in Gaza, Mrs. Sabra discovered that she was pregnant with Baby M....  Mrs. Sabra decided to stay in Gaza to be close to Mr. Sabra’s family there....

In 2019, Baby M was born at home in Gaza just after intense bombing was going on in Gaza City.  In June 2019, Mrs Sabra contacted the U.S. embassy in Israel seeking an emergency appointment at the Erez Crossing to obtain a Counselor Report of Birth Abroad and a passport for Baby M.  The parents indicated that they needed to seek medical treatment for Baby M in the United States.  Because Mrs. Sabra was 46 years old, the consulate insisted on additional evidence establishing that she was in fact the baby's mother.  The embassy ultimately insisted on photos of Mrs. Sabra during her pregnancy and DNA testing of Baby M.  However the Sabra's, who are Muslim, objected:

... Mr. Sabra has a “strong religious hesitation” to DNA testing, whereas Mrs. Sabra has an “absolute religious objection” to the DNA testing of Baby M.... With respect to the photographs, Plaintiff’s counsel confirmed that there are two photographs of Mrs. Sabra during the pregnancy, but Mr. and Mrs. Sabra refuse to provide those photographs to the Embassy based on religious objections..... The basis ... is that the photographs are “very personal,” they were “taken in an intimate in-house setting with just the family,” and “for religious views, [they] should [not] be seen by anyone outside of the family ever.”

In an 87-page opinion that deals with a number of other issues as well, the court refused to dismiss plaintiffs' RFRA claims, saying in part:

There is a genuine dispute as to whether the Embassy’s request for the DNA testing and Mrs. Sabra’s pregnancy photographs served a compelling interest by the least restrictive means.

Court Dismisses Claims That Mormon Doctrines Are Fraudulent

In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, March 31, 2020), a Utah federal district court dismissed on 1st Amendment grounds a suit alleging fraud by the LDS Church.  In the suit, a former LDS Church member alleged that several basic teachings of the Church involve misrepresentations.  The court said in part:

Each of these alleged misrepresentations directly implicates the Church’s core beliefs. Because a statement’s falsity is an essential element of fraud claims, adjudicating these claims would require the court to do exactly what the Supreme Court has forbidden—evaluate the truth or falsity of the Church’s religious beliefs. This court can no more determine whether Joseph Smith saw God and Jesus Christ or translated with God’s help gold plates or ancient Egyptian documents, than it can opine on whether Jesus Christ walked on water or Muhammed communed with the archangel Gabriel. The First Amendment prohibits these kinds of inquiries in courts of law.

Courthouse News Service reports on the decision.

Challenge To School Bible Program Is Dismissed After Program Is Terminated

In Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV. March 31, 2020), a West Virginia federal district court in a 25-page opinion dismissed as moot a suit to enjoin Mercer County's Bible in the Schools program.  The Board terminated the 70-year old program after litigation challenging it had continued for two years.

Courts Grapple With State Abortion Bans In COVID-19 Responses

As previously reported, Texas and Ohio have included abortions as non-essential medical procedures which are banned to preserve resources for treatment of COVID-19 patients. Alabama has also imposed a similar ban. Wall Street Journal reports that district court judges in each of those states have blocked the bans. However yesterday in In re Abbott, (5th Cir., March 31, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision temporarily stayed the Texas federal district court's injunction, allowing the ban on abortions to remain, at least for the time being. The state however was directed to file an initial response by 8:00 a.m. today.

Suit Challenges Colorado Stay-At-Home Order Partly On Free Exercise Grounds

A suit was filed on Monday by a pro se plaintiff in a Colorado federal district court seeking a preliminary injunction to bar enforcement of the COVID-19 stay-at-home orders issued by the state and local officials.  The complaint (full text) in Lawrence v. State of Colorado, (D CO, filed 3/30/2020) alleges in part:

As a result of the Orders listed above that restrict the gathering of more than ten people at a time, the plaintiff's parish has ceased conducting weekly Mass, has ceased offering the Eucharist, and has ceased hearing confessions. The defendants' conduct has impaired the plaintiff's ability to freely exercise his religious faith, in violation of the First Amendment.

Colorado Politics reports on the lawsuit.

7th Circuit Upholds Prison Rule Limiting Off-Bunk Prayers

In Larry v. Goldsmith, (7th Cir., March 30, 2020), the U.S. 7th Circuit Court of Appeals upheld as reasonably related to a legitimate penological interest a prison rule that prohibits inmates from praying off their bunks after 9:00 pm. The policy was challenged by a Muslim inmate who was disciplined for praying next to his bunk at a prohibited time.

Pastor Arrested For Holding Church Services In Violation of Health Department Order

AP reports that in Hernando County,  Florida, police arrested Tampa (FL) megachurch pastor Rodney Howard-Browne for holding two Sunday church services with hundreds of people in violation of a county emergency health department order to limit all gatherings to less than ten people. The pastor turned himself into authorities and he was released on $500 bond. The church claims it enforced the 6-foot distancing rule between families and took other precautions as well. Howard-Browne has said the church is an essential services and suggested he would fight the issue in court. [Thanks to Tom Rutledge for the lead.]

8th Circuit: Catholic Hospital Retirement Plan Is Exempt From ERISA

In Sanzone v. Mercy Health, (8th Cir., March 27, 2020), the U.S. 8th Circuit Court of Appeals held that the retirement plan of a Catholic-affiliated hospital qualifies for the "church plan" exemption under ERISA. The court however remanded the case for consideration of whether deprivation of ERISA protections created sufficient injury to confer standing to challenge the church plan exemption as an Establishment Clause violation.  Reuters reports on the decision.

Suits In NY and Texas Say Stay-At-Home Orders Infringe Religious Rights

New York Post reports that a lawsuit was filed last Friday in a New York federal district court against the state of New York and Gov. Andrew Cuomo challenging the constitutionality of Cuomo's stay-at-home order imposed to limit the spread of COVID-19. Among other things, plaintiff, a Brooklyn lawyer, alleges that the ban violates his rights to free speech and to observe his Jewish faith.

A mandamus action filed in the Texas Supreme Court similarly challenges a Harris County, Texas stay-at-home order. Houston Chronicle reports that the challenge filed by three pastors and a conservative Republican activist claims that the order violates the 1st Amendment by ordering the closure of churches and also violates the Constitution by failing to classify gun shops as essential businesses.

UPDATE: Here is the full text of the complaint in the Texas case, In re Hotze, (TX Sup. Ct., filed 3/30/2020).

UPDATE 2: Front Porch News reports on an April 21 updated version of Texas' “Guidance to Houses of Worship During the COVID-19 Crisis.”

Recent Articles of Interest

From SSRN:

• Ibrahim Adewumi Adeyemi, Comparative Analysis of Capital Punishment in the Hadd Offence of Riddah Vis-a-Vis the Offence of Espionage, (August 15, 2018).
• Loren F. Selznick, Mangers and Turbans: Nonverbal Religious Expression in a Diverse Workplace, (University of Baltimore Law Review, Vol. 49, No. 2, 2020).
• Orazio Condorelli & Rafael Domingo Osle, Introduction to Law and the Christian Tradition in Italy: The Legacy of the Great Jurists, (January 31, 2020).
• Md Tasnimul Hassan, Gujarat under Narendra Modi: Sangh Terror, Failure of Governance and Complicity within the Judicial System, (January 21, 2020).
• Md Tasnimul Hassan, Islamic Jurisprudence: Apropos to the Indian Legal System, (International Journal of Socio-Legal Research, Volume 6-Issue 1, Page 27-40, 2019).
• Larissa M. Katz, Conscience With a Filter, (Jerusalem Review of Legal Studies, 2020).

From SmartCILP:

• Rabea Benhalim, Religious Courts in Secular Jurisdictions: How Jewish and Islamic Courts Adapt To Societal and Legal Norms, 84 Brooklyn Law Review 745-800 (2019).
• Barnette at 75: The Past, Present, and Future of the "Fixed Star in Our Constitutional Constellation." Introduction by Howard M. Wasserman. Articles by Ronald K. L. Collins, Erica Goldberg, Abner S. Greene, Paul Horwitz, Leslie Kendrick, Genevieve Lakier, Aaron Saiger, Steven D. Smith; keynote address by John Q. Barrett. 13 Florida International University Law Review 585-873 (2019).

Catholic Hospital Is Within Title VII Exemption

In Boydston v. Mercy Hospital Ardmore, Inc., (WD OK, March 25, 2020), an Oklahoma federal district court held that a Catholic hospital and its parent bodies are religious entities that are exempt under (42 USC §2000e-1(a)) from the religious discrimination prohibitions of Title VII.  Based on that conclusion, the court dismissed the Title VII (and parallel state anti-discrimination law) claims of religious discrimination brought by a power plant technician at the hospital.

10th Circuit Reverses Dismissal Of Inmate's 1st Amendment Claims

In Khan v. Barela, (10th Cir., March 26, 2020), the U.S. 10th Circuit Court of Appeals in a 35-page opinion reversed a New Mexico federal district court's sua sponte dismissal of a federal pre-trial detainee's pro se 1st and 4th Amendment claims. Erik Khan was a pre-trial detainee for some four years. His 1st Amendment free speech claims involved a prohibition on his reading hard-cover books, newspaper and newspaper clippings. His 1st Amendment free-exercise claims revolved around prison chaplains' refusal to allow him a clock, prayer schedule, and Muslim calendar to track the timing of Ramadan, and his inability to obtain Ramadan-compliant meals.

Student Who Objects To Reciting Pledge May Move Ahead On Compelled Speech Claim Against Teacher

In Oliver v. Klein Independent School District, (SD TX, March 25, 2020), a Texas federal district court, while dismissing a number of plaintiff's claims, allowed a high school student to move ahead with her 1st Amendment compelled speech claim against her sociology teacher Benji Arnold.  Plaintiff Mari Oliver  objected to reciting the Pledge of Allegiance. As described by the court:

Arnold played the Bruce Springsteen song “Born in the U.S.A.,” and told the class to write down how the song made them feel.... He then gave the students a timed assignment to transcribe the Pledge of Allegiance, stating that, because the assignment was written, the students were not actually pledging allegiance to the United States.... Oliver refused, drawing a “squiggly line” instead.

The court held:

The parties disagree about whether Arnold was hostile to those who abstain from the pledge and refuse to assimilate into American society. The complaint alleges that Arnold compared people who abstain from the pledge to Soviet communists, supporters of Sharia, and people who condone pedophilia.... The parties’ interpretations of Arnold’s remarks inform their arguments about whether the pledge assignment had an impermissible patriotic intent. Oliver and Arnold also dispute whether Oliver’s refusal to write the pledge was protected speech or a mere refusal to do coursework.... Granting summary judgment for Arnold on the compelled-speech claim is clearly inappropriate. Granting partial summary judgment for the plaintiffs is a closer question, but the full record at trial will provide a more secure basis for an accurate ruling.

Cert. Filed In Pittsburgh Abortion Clinic Buffer Zone Ordinance

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Bruni v. City of Pittsburgh. In the case, the U.S. 3rd Circuit Court of Appeals upheld a Pittsburgh ordinance that creates a 15-foot buffer zone outside any health care facility, including a Planned Parenthood clinic. In Bruni v. City of Pittsburgh, (3d Cir., Feb. 6, 2019), the court upheld the ordinance by interpreting it to not cover sidewalk anti-abortion counseling. ADF issued a press release announcing yesterday's filing of the petition for review.

Sioux Tribes Get Delay In Dakota Access Pipeline

In Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, (D DC, March 25, 2020), the D.C. federal district court held that the Army Corps of Engineers needs to prepare an environmental impact statement on the proposed Dakota Access Pipeline route under Lake Oahe in North and South Dakota.  Sioux tribes rely on Lake Oahe water for, among other things, sacred religious and medicinal practices. Inside Climate News reports on the decision.

Canadian Province's School Funding of Catholic School Upheld

In Government of Saskatchewan v. Good Spirit School Division No. 204, (SK Ct. App., March 25, 2020), the Saskatchewan (Canada) Court of Appeal in a 133-page opinion, upheld the province's funding for non-Catholic students enrolled in a government-funded Catholic school. Global News reports on the decision.