Suit Challenges Virginia's Ban On LGBT Discrimination In Public Accommodations

Suit was filed on Tuesday in a Virginia federal district court by a wedding photographer challenging the Virginia Values Act which  prohibits businesses from discriminating on the basis of sexual orientation. The complaint (full text) in Chris Herring Photography, LLC v. Herring, (ED VA, filed 6/30/2020) alleges in part:

Virginia interprets this law to force Chris to do more than serve LGBT clients (which Chris already does). Virginia instead requires Chris to promote content he disagrees with—to create and convey photographs and blogs celebrating same-sex weddings because he does so for weddings between a man and a woman. The law even makes it illegal for Chris to hold a policy of photographing and blogging about weddings only between a man and woman or to post internet statements explaining his religious reasons for only creating this wedding content.

ADF issued a press release announcing filing of the lawsuit.

California Sues Cisco Alleging Caste-Based Discrimination

In a June 30 press release, the California Department of Fair Employment & Housing announced the filing of an unusual employment discrimination lawsuit against Cisco Systems, Inc. and two of its managers:

The lawsuit alleges that managers at Cisco’s San Jose headquarters campus, which employs a predominantly South Asian workforce, harassed, discriminated, and retaliated against an engineer because he is Dalit Indian, a population once known as the “untouchables” under India’s centuries-old caste system....

The lawsuit alleges that Complainant was expected to accept a caste hierarchy within the workplace where he held the lowest status within a team of higher-caste colleagues, receiving less pay, fewer opportunities, and other inferior terms and conditions of employment because of his religion, ancestry, national origin/ethnicity, and race/color.

The Print reports on the lawsuit.

White House Praises Espinoza Decision

The White House press secretary yesterday issued the following statement (full text) on the Supreme Court's decision in Espinoza v.Montana Department of Revenue:

We celebrate today’s Supreme Court decision on religious schools, which removes one of the biggest obstacles to better educational opportunities for all children.  States may no longer hide behind rules motivated by insidious bias against Catholics, known as Blaine Amendments, to exclude religious schools from public benefits.  Laws that condition public benefits, like need-based academic scholarships, on religious status demonstrate state-sanctioned hostility to religion, pressure people and institutions to censor their religious views, and stigmatize disfavored religions.  The Trump Administration believes that school choice is a civil rights issue, and that no parent should be forced to send their child to a failing school.  President Donald J. Trump will fight for school choice, and he will always defend our first freedom: the free exercise of religion.

Supreme Court Says Montana Cannot Exclude Religious Schools From Tax-Credit Program

In Espinoza v. Montana Department of Revenue, (US Sup. Ct., June 30, 2020), the U.S. Supreme Court in a 5-4 decision held that Montana's exclusion of religious schools from its scholarship tax credit program violates the Free Exercise clause of the U.S. Constitution.  The Montana Supreme Court had invalidated the entire scholarship program because it included religious schools, relying on the "no aid" provision of the Montana constitution.  Chief Justice Roberts majority opinion, joined by Justices Thomas, Alito, Gorsuch and Kavanaugh, said in part:

This case also turns expressly on religious status and not religious use. The Montana Supreme Court applied the no-aid provision solely by reference to religious status. The Court repeatedly explained that the no-aid provision bars aid to “schools controlled in whole or in part by churches,” “sectarian schools,” and “religiously-affiliated schools.”... Applying this provision to the scholarship program, the Montana Supreme Court noted that most of the private schools that would benefit from the program were “religiously affiliated” and “controlled by churches,” and the Court ultimately concluded that the scholarship program ran afoul of the Montana Constitution by aiding “schools controlled by churches.”... The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran, which excluded organizations “owned or controlled by a church, sect, or other religious entity.”...

...Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.

Justice Thomas filed a concurring opinion which was joined by Justice Gorsuch, saying in part:

I write separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights. Until we correct course on that interpretation, individuals will continue to face needless obstacles in their attempts to vindicate their religious freedom.

Justice Alito filed a concurring opinion, saying in part:

Respondents argue that Montana’s no-aid provision merely reflects a state interest in “preserv[ing] funding for public schools,”... known as “common schools” during the Blaine era. Yet just as one cannot separate the Blaine Amendment from its context, “[o]ne cannot separate the founding of the American common school and the strong nativist movement.”  Spearheaded by Horace Mann, Secretary of the Massachusetts Board of Education from 1837 to 1848, the common-school movement did not aim to establish a system that was scrupulously neutral on matters of religion. (In a country like ours, that would have been exceedingly difficult, if not impossible.) Instead the aim was to establish a system that would inculcate a form of “least-common denominator Protestantism.”This was accomplished with daily reading from the King James Bible, a curriculum that, Mann said, let the book “speak for itself.” ... Yet it was an affront to many Christians and especially Catholics, not to mention non-Christians.

Mann’s goal was to “Americanize” the incoming Catholic immigrants. In fact, he and other proponents of the common-school movement used language and made insinuations that today would be considered far more inflammatory.

Justice Gorsuch filed a concurring opinion, saying in part:

 I was not sure about characterizing the State’s discrimination in Trinity Lutheran as focused only on religious status, and I am even less sure about characterizing the State’s discrimination here that way....

Maybe it’s possible to describe what happened here as status-based discrimination. But it seems equally, and maybe more, natural to say that the State’s discrimination focused on what religious parents and schools do—teach religion....

Most importantly, though, it is not as if the First Amendment cares. The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.

Justice Ginsburg filed a dissenting opinion, joined by Justice Kagan, saying in part:

[T]he Montana court remedied the state constitutional violation by striking the scholarship program in its entirety. Under that decree, secular and sectarian schools alike are ineligible for benefits, so the decision cannot be said to entail differential treatment based on petitioners’ religion.

Justice Breyer filed a dissenting opinion, joined in part by Justice Kagan, saying in part:

It is true that Montana’s no-aid provision broadly bars state aid to schools based on their religious affiliation. But this case does not involve a claim of status-based discrimination. The schools do not apply or compete for scholarships, they are not parties to this litigation, and no one here purports to represent their interests. We are instead faced with a suit by parents who assert that their free exercise rights are violated by the application of the no-aid provision to prevent them from using taxpayer-supported scholarships to attend the schools of their choosing. In other words, the problem, as in Locke, is what petitioners “‘propos[e] to do—use the funds to’” obtain a religious education. ....

I agree with the majority that it is preferable in some areas of the law to develop generally applicable tests. The problem, as our precedents show, is that the interaction of the Establishment and Free Exercise Clauses makes it particularly difficult to design a test that vindicates the Clauses’ competing interests in all—or even most—cases.That is why, far from embracing mechanical formulas, our precedents repeatedly and frankly acknowledge the need for precisely the kind of “‘judgment-by-judgment analysis’” the majority rejects.

Justice Sotomayor filed a dissenting opinion, saying in part:

Neither differential treatment nor coercion exists here because the Montana Supreme Court invalidated the tax-credit program entirely....

To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education. But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise....

[T]he Montana Supreme Court remedied a state constitutional violation by invalidating a state program on state-law grounds, having expressly declined to reach any federal issue....

NPR reports on the decision.

European Court Says Greece Should Not Have Indicated Non-Christening On Birth Record

In Stavropoulos and others v. Greece, (ECHR, June 25, 2020), the European Court of Human Rights, in a Chamber Judgment, held that Greece violated the religious freedom rights of parents when when their child's first name was entered into the birth record with an abbreviation in brackets next to it indicating that the parents had not christened the child.  The court, finding a violation of the European Convention on Human Rights, said in part:

[T]he Court shares the applicants’ view that the note “naming” next to the third applicant’s first name carries a connotation, namely that she was not christened and that her name was given by the civil act of naming. That conclusion is further reinforced by the section concerning christening that is included in the birth registration act which ... has been left blank. Such information appearing in a public document issued by the State constitutes an interference with the right of all of the applicants not to be obliged to manifest their beliefs, which is inherent in the notion of freedom of religion and conscience as protected by Article 9 of the Convention. That is because it implies that the first and second applicants, as the parents and legal guardians of the third applicant, chose not to have the third applicant christened.

The court awarded damages of €10,000, plus costs, to petitioners.

Supreme Court Invalidates Louisiana Abortion Law Requiring Clinic Doctors To Have Hospital Admitting Privileges

The U.S. Supreme Court today in June Medical Services L.L.C. v. Russo, (U.S. Sup. Ct., June 29, 2020), by a 5-4 vote, struck down Louisiana's law that requires doctors at abortion clinics to hold active admitting privileges at a hospital within 30 miles of the clinic.  At issue in the case were (1) whether abortion providers have standing to assert their patients' abortion rights, and (2) whether the Louisiana statute is constitutional.  The Court in 2016 in Whole Women's Health v. Hellerstedt struck down a similar Texas statute.

Justice Breyer wrote today's plurality opinion which was joined by Justices Ginsburg, Sotomayor and Kagan.  As to standing, the plurality held:

The State did not mention its current objection until it filed its cross-petition—more than five years after it argued that the plaintiffs’ standing was beyond question.

The State’s unmistakable concession of standing as part of its effort to obtain a quick decision from the District Court on the merits of the plaintiffs’ undue-burden claims bars our consideration of it here.

On the merits, the plurality said in part:

The District Court found that enforcing the admitting privileges requirement would “result in a drastic reduction in the number and geographic distribution of abortion providers.” ... In light of demographic, economic, and other evidence, the court concluded that this reduction would make it impossible for “many women seeking a safe, legal abortion in Louisiana . . . to obtain one” and that it would impose “substantial obstacles” on those who could....

The District Court found that there was “‘no significant health-related problem that the new law helped to cure.’” ...

We conclude, in light of the record, that the District Court’s significant factual findings—both as to burdens and as to benefits—have ample evidentiary support. None is “clearly erroneous.” Given the facts found, we must also uphold the District Court’s related factual and legal determinations. These include its determination that Louisiana’s law poses a “substantial obstacle” to women seeking an abortion; its determination that the law offers no significant health-related benefits; and its determination that the law consequently imposes an “undue burden” on a woman’s constitutional right to choose to have an abortion.

Chief Justice Roberts filed a concurring opinion, saying in part:

I joined the dissent in Whole Woman’s Health and continue to believe that the case was wrongly decided. The question today however is not whether Whole Woman’s Health was right or wrong, but whether to adhere to it in deciding the present case.....

The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore Louisiana’s law cannot stand under our precedents.

Justice Thomas filed a dissenting opinion, saying in part:

Despite the fact that we granted Louisiana’s petition specifically to address whether “abortion providers [can] be presumed to have third-party standing to challenge health and safety regulations on behalf of their patients,” ... a majority of the Court all but ignores the question. The plurality and THE CHIEF JUSTICE ultimately cast aside this jurisdictional barrier to conclude that Louisiana’s law is unconstitutional under our precedents. But those decisions created the right to abortion out of whole cloth, without a shred of support from the Constitution’s text. Our abortion precedents are grievously wrong and should be overruled.

Justice Alito filed a dissenting opinion, joined by Justice Gorsuch, and joined in part by Justices Thomas and Kavanaugh, saying in part:

The plurality concludes that the Louisiana law does nothing to protect the health of women, but that is disproved by substantial evidence in the record. And the plurality upholds the District Court’s finding that the Louisiana law would cause a drastic reduction in the number of abortion providers in the State even though this finding was based on an erroneous legal standard and a thoroughly inadequate factual inquiry....

Both the plurality and THE CHIEF JUSTICE hold that abortion providers can invoke a woman’s abortion right when they attack state laws that are enacted to protect a woman’s health. .... [T]he idea that a regulated party can invoke the right of a third party for the purpose of attacking legislation enacted to protect the third party is stunning. Given the apparent conflict of interest, that concept would be rejected out of hand in a case not involving abortion.

Justice Gorsuch filed a dissenting opinion, saying in part:

The judicial power is constrained by an array of rules. Rules about the deference due the legislative process, the standing of the parties before us, the use of facial challenges to invalidate democratically enacted statutes, and the award of prospective relief. Still more rules seek to ensure that any legal tests judges may devise are capable of neutral and principled administration. Individually, these rules may seem prosaic. But, collectively, they help keep us in our constitutionally assigned lane, sure that we are in the business of saying what the law is, not what we wish it to be.

Today’s decision doesn’t just overlook one of these rules. It overlooks one after another....

Justice Kavanaugh filed a dissent, saying in part:

[I]n my view, additional fact finding is necessary to properly evaluate Louisiana’s law. As JUSTICE ALITO thoroughly and carefully explains, the factual record at this stage of plaintiffs’ facial, pre-enforcement challenge does not adequately demonstrate that the three relevant doctors ... cannot obtain admitting privileges or, therefore, that any of the three Louisiana abortion clinics would close as a result of the admitting-privileges law.

New York Times reports on the decision.

Recent Articles of Interest

From SSRN:

• Claudio Antonio Klaus Junior, Religious Freedom as a Human Right: An International Overview Focusing on Brazil, (May 7, 2019).
• Eli Wald, Jewish Lawyers and the Legal Profession: The End of the Affair?, (Touro Law Review, Vol. 36, No. 299, 2020).
• Anver M. Emon & Aaqib Mahmood, Canada v. Asad Ansari: Avatars, Inexpertise, and Racial Bias in Canadian Anti-Terrorism Litigation , (Michael Nesbitt and Kent Roach, eds. Toronto 18 Terrorism Trials. Calgary: University of Calgary (Forthcoming)).
• Kalyani Abhyankar, Lynching: A Threat to Democracy, (May 29, 2020).
• Marc Spindelman, The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, Part I, (81 Ohio State Law Journal Online 81 (2020)); Part III, (81 Ohio State Law Journal Online 101 (2020).
• Zachary B. Pohlman, Catholic Social Teaching and the Role of the Prosecutor, (54 Creighton Law Review, Forthcoming 2021).
• Caroline Mala Corbin, Religious Liberty in a Pandemic, (June 23, 2020).
• Andrew M. Koppelman, Bostock, LGBT Discrimination, and the Subtractive Moves, (Minnesota Law Review Headnotes, Forthcoming).

From SSRN (Islamic Law);

• Aisha Saad, The Corporate Waqf in Law and Practice, (10 Berkeley J. Middle E. & Islamic L. (2019)).
• Aziz Z. Huq, Illiberalism and Islam, (Routledge Handbook of Illiberalism, 2020).
• Muhammad Munir, Does a Compromise Blot out Both Guilt and Punishment? Analyzing Qiṣāṣ and Diyat Provisions of Criminal Law in Pakistan under the Injunctions of Islam, (Islamic Studies, Vol. 59:1 (2020), pp. 1-16).
• Md Tasnimul Hassan, Basics of Muslim Family Law, (May 31, 2020).

From SmartCILP and elsewhere:

• Journal of Law & Religion, Vo. 35, Issue 1, (April 2020).
• Jeremiah Bourgeois, The Tribulations of Miller's Children: How Cruel and Unusual Punishments Produced Establishment Clause Violations, [Abstract], 46 American Journal of Criminal Law 1-12 (2019).
• William N. Eskeridge, Jr., Ohio's 2004 Super-DOMA: Popular Constitutionalism and Normalization in the Marriage Equality Debate, 47 Capital University Law Review 695-754 (2019).

Court Allows Most of Abused Plaintiff's Claims Against Diocese To Proceed

In Doe v. Norwich Roman Catholic Diocesan Corp., 2020 Conn. Super. LEXIS 616 (CT Super. Ct., May 26, 2020), a Connecticut trial court refused to dismiss many of the allegations in a lawsuit alleging that a Catholic diocese acted negligently and recklessly in a manner leading to sexual abuse of the plaintiff by two Catholic priests between 1978 and 1988. According to the court:

The challenged allegations include the plaintiff's claims alleging the defendants' failure to immediately remove Charles Many or J. Lawrence Ouimet from their assigned roles, provide training and/or educational programs as it pertains to proper conduct toward parishioners, promulgate policies and rules proscribing priests from taking children into private rooms when the defendants knew or should have known that priests in the defendant Diocese had sexually assaulted children under such circumstances, develop and implement a program or policy with regard to the issue of improper sexual conduct, and police the activities of the priests, particularly Charles Many and J. Lawrence Ouimet, upon the premises that the defendants owned and controlled. 

... [T]the majority of the plaintiff's challenged allegations involve a factual inquiry and do not require an interpretation or weighing of a religious belief, doctrine or practice that is undertaken for religious reasons.... These allegations concern child sex abuse by a Catholic priest, and whether the Diocesan Corporation knew or should have known of the same, about which there would be no need for the court to evaluate the proprieties of scripture or religious teachings.

The court did dismiss a portion of the allegations which involve religious decisions or religion-based obligations.

New York Enjoined From Enforcing Stricter Limits Against Worship Services

In Soos v. Cuomo, (ND NY, June 26, 2020), a New York federal district court granted a preliminary injunction barring New York from enforcing COVID-19 orders that impose stricter limits on worship services than on other activities. The suit was brought by two Catholic priests and three Orthodox Jews.  The court said in part:

Assuming, without deciding, that the challenged laws are neutral, plaintiffs have demonstrated a likelihood of success on the merits with respect to their free exercise claim because it appears that the challenged laws are not generally applicable, and that they would fail strict scrutiny....

On its face, the 25% indoor capacity limitation applies only to houses of worship... Indeed, that limitation is the only one of its kind in the tangle of executive orders and the Guidance Document that have been issued in response to the pandemic; in other words, no other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, are limited to only 25% capacity. The “nonessential businesses,” dubbed “Phase 2 industries” by executive order, that enjoy a 50% capacity limitation are, however, not justifiably different than houses of worship.

The court enjoined the state:

(1) from enforcing any indoor gathering limitations against plaintiffs greater than imposed for Phase 2 industries, provided that plaintiffs follow social distancing requirements as set forth in the applicable executive orders and guidance; and

(2) from enforcing any limitation for outdoor gatherings provided that participants in such gatherings follow social distancing requirements as set forth in the applicable executive orders and guidance.

Thomas More Society issued a press release announcing the decision.

Suit Challenges Rollback of Health Care Anti-Discrimination Rule

Suit was filed today in a New York federal district court by two transgender women of color challenging the Department of Health and Human Services' recent rule revisions that roll back health care anti-discrimination coverage for gay and transgender individuals. The complaint (full text) in Walker v. Azar, (ED NY, filed 6/26/2020), alleges in part:

2. The 2020 Rule directly contravenes the Supreme Court of the United States’ recent holding in Bostock v. Clayton Cty., Georgia ... (June 15, 2020), that discrimination “on the basis of sex” includes, without reservation, discrimination based on an individual’s gender identity, including transgender status, or sexual orientation.

3. If allowed to take effect, the 2020 Rule will directly threaten the ability of members of the LGBTQ community to access medically necessary, potentially life-saving medical and health care by removing clear prohibitions against discrimination. And even if members of the LGBTQ community are able to access such health care, the 2020 Rule puts them at grave risk of inadequate care wrought with discrimination solely on account of their identities, which the 2020 Rule makes permissible.

Human Right Campaign issued a press release announcing the filing of the lawsuit and providing additional background.

Charter School May Not Exclude Vendor That Expresses Religious Views On Its Website

In Our Peculiar Family v. Inspire Charter Schools, (CD CA, June 23, 2020), a California federal district court refused to dismiss a free exercise challenge to the refusal by a publicly funded charter school to contract with an art instruction business because of the business' espousal of religious views on its website. The court said in part:

Defendants argue that their obligation to be “nonsectarian” in administering a school program required them to exclude any vendor that publicly espoused religious views.... Defendants are incorrect. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)....

Defendants’ policies here are even more preclusive than the unconstitutional policies in Trinity Lutheran. Not only do Defendants’ policies exclude all churches from providing services, they apparently preclude all services by any potential vendor with religious statements on their website. Defendants do not explain how institution of such a categorical requirement is in keeping with their obligation to facilitate “nonsectarian” services, nor do they offer facts to support that Plaintiffs’ application implicated Establishment Clause concerns. 

Supreme Court Rejects Asylum Seeker's Challenge To Limits On Review Of Claims

The U.S. Supreme Court today in Department of Homeland Security v. Thuraissigiam, (US Sup. Ct., June 25, 2020) upheld against constitutional attack a provision in the immigration law that prevents applicants for asylum from appealing to federal courts through a habeas corpus petition an immigration judge's conclusion that the applicant lacks a "credible fear of persecution".  The court rejected arguments that the limitation violates the Constitutional ban on suspending habeas corpus and violates due process. Justices Breyer and Ginsburg concurrd, but would limit the holding to the facts of this case. Justices Sotomayor and Kagan dissented. NPR reports on the decision.

Executive Order Encourages State Cooperation With Faith-Based Child Welfare Agencies

President Trump yesterday signed an Executive Order (full text) on Strengthening the Child Welfare System. The Order encourages "close partnerships between State agencies and nongovernmental organizations, including public, private, faith-based, and community groups." (HHS press release).

Iowa Abortion Waiting Period Challenged On State Constitutional Grounds

Suit was filed this week in an Iowa state trial court challenging a provision enacted earlier this month requiring women seeking an abortion to first visit a health center to receive an ultrasound and specified information, and then wait at least 24 hours before returning to have an abortion.  The complaint (full text) in Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., filed 6/23/2020) challenges the provision only on state constitutional grounds.  It focuses on the Iowa Constitution's single subject, due process, equal protection and inalienable rights provisions, and alleges in part:

The Amendment will be especially harmful during the current COVID-19 pandemic....

[B]y requiring an additional, medically unnecessary visit for abortion patients, despite the overwhelming consensus that providers should be reducing medically unnecessary medical visits during the pandemic, the Amendment puts patients and medical providers at increased risk of COVID-19 transmission....

By imposing a delay on abortion—a delay that the Legislature does not impose on any other medical procedure—the Amendment conveys that the Legislature believes women are not competent to make considered, appropriate medical decisions for themselves and their families, and must instead be forced by the state to reconsider their medical decisions....

[Thanks to Scott Mange for the lead.]

Courthouse News Service reports on the lawsuit.

Saudi Arabia Limits Hajj To Residents To Limit COVID Spread

Saudi Arabia's Ministry of Hajj and Umrah announced on Monday that because of COVID-19 the Hajj this year will be extremely limited, saying in part:

in light of the continuation of the pandemic and the risks of Coronavirus spreading in crowded spaces and large gatherings, and its transmission between countries,  and the increase in average infections globally, it has been decided that Hajj for this year (1441 H/ 2020 AD) will be held whereby a very limited number of pilgrims from various nationalities who already reside in Saudi Arabia, would be able to perform it.  This decision is taken to insure Hajj is performed in a safe manner from a public health perspective while observing all preventative measures and the necessary social distancing protocols....

Georgia Enacts Hate Crime Law

As reported by the Atlanta Journal Constitution, the Georgia legislature yesterday gave final passage (legislative history) to HB 426 (full text) which provides enhanced criminal penalties for assault, battery, theft and criminal trespass motivated by the victim's actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability.  The bill also provides for enhanced reporting of bias-motivated crimes. Gov. Brian Kemp says he will sign the bill.

Suit Challenges City's Ban On Religious Christmas Displays On Public Property

The Knights of Columbus filed suit in a Delaware federal district court yesterday challenging Rehoboth Beach's policy adopted in 2018 of allowing only secular Christmas displays at the city's Bandstand Circle. The complaint (full text) in Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, filed 6/23/2020), alleges that since the 1930's a nativity scene had been displayed there during the Christmas season. It contends that the city, in allowing private groups to still erect secular displays, but insisting that the K of C display be placed on private property, violates plaintiff's free speech, free exercise and equal protection rights. First Liberty Institute issued a press release announcing the filing of the lawsuit.

South Carolina Episcopal Parishes All Win Title To Their Property

In Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (SC Common Pleas, June 19, 2020), a South Carolina trial court was called upon to interpret a confusing decision by the South Carolina Supreme Court in a long-running property dispute that arose after a split in the Episcopal Church in South Carolina.  In a 2017 decision, the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages purported to resolve the factional property dispute. The trial court concluded that, under the state Supreme Court's decision, 36 parishes are the owners of their parish real estate and accompanying personal property. The court said in part:

This Court must distill the five separate opinions, identify the Court’s intent, and produce a logical directive. It must harmonize these opinions and find common ground among them. The issue is whether the 1979 Dennis Canon or any parish’s alleged accession to that Canon created a legally cognizable trust under South Carolina law....

At issue is ownership of real property, purchased and managed exclusively by the Plaintiff Parishes including land and buildings, considerable funds, and other personal property such as books, silver, and historical archives. The crux of the disagreement rests upon the Dennis Canon and its legal effect on whether this property was ever held in trust for TEC or TECSC....

This Court finds that the Plaintiffs merely promised allegiance to TEC and without more, this promise cannot deprive them of their ownership rights in their property. This Court finds no Parish expressly acceded to the 1979 Dennis Canon. The Dennis Canon was not mentioned by name in any of the evidence, and Defendants admitted that the Dennis Canon is not referenced in any of the deeds of parish property.... As a result, there is no trust created in favor of the Defendants, TEC and TECSC.

Christian Post reports on the decision.

Suit Challenges Roll-Back of Health Care Protections For Transgender Individuals

Suit was filed yesterday in the D.C. federal district court challenging the Trump Administration's recent rule change that rolled back health care anti-discrimination protection for transgender individuals. The complaint (full text) in Whitman-Walker Clinic, Inc. v. U.S. Department of Health and Human Services, (D DC, filed 6/22/2020) alleges in part:

[T]he Revised Rule imports broad and sweeping exemptions for discrimination based on personal religious or moral beliefs from the identified statutes in Section 1557 [of the Patient Protection and Affordable Care Act] and other statutes, including the Religious Freedom Restoration Act ... which Section 1557 does not reference. These exemptions invite individual health care providers, health care entities, and insurers across the country to opt out of treating patients, including many transgender patients, if they believe doing so would compromise their faith....

HHS’s attempt to create new religious exemptions in Section 1557 is contrary to law and endangers patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them—a result sharply at odds with HHS’s stated mission to “enhance and protect the health and well-being of all Americans” and to “provid[e] for effective health and human services.”

 The Hill reports on the filing of the lawsuit.

DOJ Sues Virginia County Over Restrictions On Creating Muslim Cemetery

Last week, the U.S. Department of Justice filed a federal RLUIPA lawsuit against Stafford County, Virginia. The complaint (full text) in United States v. Stafford County, Virginia, (ED VA, filed 5/19/2020) alleges in part that the county has imposed:

restrictive zoning requirements that preclude the All Muslim Association of America ... from establishing an Islamic cemetery on land it owns, thereby impeding its religious practice of providing low-cost burial services to persons of the Islamic faith. The County’s actions constitute a substantial burden on the free exercise of the religion of the All Muslim Association, in violation of the  Religious Land Use and Institutionalized Persons Act of 2000....

The Justice Department issued a press release announcing the filing of the lawsuit.