Recent Articles of Interest

From SSRN:

• Carl H. Esbeck, The Establishment Clause: What the Text and Record in the First Federal Congress Can Tell Us About Original Meaning, (University of Missouri School of Law Legal Studies Research Paper No. 2020-19 (2020)).
• Beatrice Jessie Hill, Reconsidering Hostile Takeover of Religious Organizations, (Washington University Law Review (forthcoming 2020)).
• Ian Huyett, How to Overturn Employment Division v. Smith: A Historical Approach, (Regent University Law Review, Vol. 32, 2020).
• Andrew M. Koppelman, Gay Rights, Religious Liberty, and the Misleading Racism Analogy, (BYU Law Review, forthcoming).
• Helen L. Norton, Discrimination, The Speech That Enables It, And The First Amendment, (University of Chicago Legal Forum, Forthcoming).
• Dyllan Taxman, What About Bob? The Continuing Problem of Federally-Subsidized LGB Discrimination in Higher Education, (Wisconsin Women's Law Journal, Vol. 33, No. 1, 2019).
• Putnam Barber, Megan Farwell & Brian D. Galle, Does Mandatory Disclosure Matter? The Case of Nonprofit Fundraising (June 12, 2020).

From SSRN (Non-U.S. Law):

• Eric Pichet, The Political and Economic Consequences of the BALDASSI Judgment of the European Court of Human Rights of 11 June 2020. (June 15, 2020).
• M. Mohsin Alam Bhat, Vidisha Bajaj & Sanjana Arvind Kumar, The Crime Vanishes: Mob Lynching, Hate Crime and Police Discretion in India, 11(1) Jindal Global Law Review (2020).
• Ihsan Yilmaz, The Rise of Islamist Fatwas in Erdogan’s Turkey, (October 1, 2019).
• Qurratul Minhas, Analysis of Circumspections of COVID19 in the Light of Islam, (July 8, 2020).
• Rosemary Teele Langford, Conflicts and Coherence in the Charities Sphere: Would a Conflict By Any Other Name Proscribe the Same?, ((2020) 14 Journal of Equity).

From SmartCILP:

• Yifat Monnickendam, The Exposed Child: Transplanting Roman Law into Late Antique Jewish and Christian Legal Discourse, 59 American Journal of Legal History 1-30 (2019).
• Britt P. Tevis, "The People's Judge": Jacob Panken, Yiddish Socialism, and American Law, [Abstract], 59 American Journal of Legal History 31-70 (2019).
• Natalia Brigagao Ferrer Alves Carvalho, Catholic Social Thought, Politics and Human Dignity in the Brazilian Constitutional Assembly of 1987-1988, [Abstract], 59 American Journal of Legal History 111-140 (2019).
• Stephanie H. Barclay, Brady Earley & Annika Boone, Original Meaning and the Establishment Clause: A Corpus Linguistics Analysis, 61 Arizona Law Review 505-560 (2019).
• Brigham Young University Law Review, Volume 2019, No.1 :  “To the Person”: RFRA’s Blueprint for a Sustainable Exemption Regime, Tanner Bean; Mormon Profit: Brigham Young, Tithing, and the Bureau of Internal Revenue, Samuel D. Brunson; Immigration Law’s Looming RFRA Problem Can Be Solved by RFRA, Stephanie Acosta Inks; The Broader Implications of Masterpiece Cakeshop, Douglas Laycock;  Native American Religious Freedom as a Collective Right, Michael D. McNally; Religion in Judicial Decision-Making: An Empirical Analysis, René Reyes, Jessica W. Reyes; The Case of the Exemption Claimants: Religion, Conscience, and Identity, Steven D. Smith.
• Mary Anne Case, Institutional Responses to #MeToo Claims: #VaticanToo, #KavanaughToo, and the Stumbling Block of Scandal, 2019 University of Chicago Legal Forum 1-36 (2019).

California COVID-19 Limits On Worship Services Challenged

Suit was filed last week in a California federal district court challenging Gov. Gavin Newsom's various COVID-19 restrictions on indoor worship services. The complaint (full text) in Harvest Rock Church, Inc. v. Newsom, (CD CA, filed 7/17/2020), points to the total prohibition on indoor worship services in 30 counties, numerical and capacity limits on worship services in other counties, a ban on singing or chanting during indoor worship services, a ban on small-group Bible studies in private homes, and discriminatory limits on the kinds of activities that can be carried on in church buildings. The complaint alleges violations of free exercise, freedom of assembly and free speech rights, as well as of the Establishment Clause, Equal Protection, and Guarantee Clause. Liberty Counsel issued a press release announcing the filing of the lawsuit.

Transgender Man Sues Catholic Hospital For Refusing Hysterectomy

A suit filed in a Maryland federal district court last week raises the question of whether a corporation created by the Maryland legislature to operate the University of Maryland Medical Center is a state actor for purposes of the 1st and 14th Amendments.  The corporation acquired St. Joseph Hospital in 2012 and continued to operate it under Catholic Directives for healthcare.  This resulted in the hospital refusing to allow a scheduled hysterectomy on a transgender man undergoing treatment for gender dysphoria.  The complaint (full text) in Hammons v. University of Maryland Medical System Corporation, (D MD, filed 7/16/2020). alleges in part:

Defendants are instrumentalities of the State of Maryland and subject to the First Amendment’s Establishment Clause and the Fourteenth Amendment’s Equal Protection Clause. But, in violation of those constitutional obligations, Defendants operate University of Maryland St. Joseph Medical Center as a Catholic institution, guided by “Catholic health care values” and bound by the “Ethical and Religious Directives for Catholic Health Care Services” established by the U.S. Conference of Catholic Bishops (the “Catholic Directives”)....

By purchasing the St. Joseph hospital and signing an agreement to operate the hospital as a Catholic institution and in accordance with the Catholic Directives, UMMS has violated the Establishment Clause by, among other things, (a) creating an impermissible fusion of governmental and religious functions; (b) impermissibly delegating government authority to be exercised in accordance with religious criteria; (c) impermissibly endorsing religion; (d) taking government action that has the primary purpose and effect of advancing religion; (e) creating unconstitutional governmental entanglement with religion; (e) favoring one set of religious beliefs over others; and (f) impermissibly coercing individuals to act in accordance with particular religious beliefs.

ACLU issued a press release announcing the filing of the lawsuit. Washington Post reports on the lawsuit. [Thanks to Scott Mange for the lead.]

5th Circuit Says Fired Employee's Suit Does Not Necessarily Require Deciding Ecclesiastical Questions

In McRaney v. North American Mission Board of the Southern Baptist Convention, Inc., (5th Cir., July 16, 2020), the U.S. 5th Circuit Court of Appeals reversed the dismissal of a suit by the former executive director of the General Mission Board of the Baptist Convention for Maryland/Delaware ("BCMD").  He alleged that the North American Mission Board ("NAMB") intentionally made false statements about him that led to his termination. He also claimed that NAMB posted his picture at their headquarters to tell people that he was not to be trusted.  The district court relied on the ecclesiastical abstention doctrine to dismiss the case.  The 5th Circuit, reversing, said in part:

In order to resolve McRaney’s claims, the court will need to determine (1) whether NAMB intentionally and maliciously damaged McRaney’s business relationships by falsely claiming that he refused to meet with Ezell,... (2) whether NAMB’s statements about McRaney were false, defamatory, and at least negligently made ...; and (3) whether NAMB intentionally caused McRaney to suffer foreseeable and severe emotional distress by displaying his picture at its headquarters.... At this early stage of the litigation, it is not clear that any of these determinations will require the court to address purely ecclesiastical questions.

Vatican Issues New Guide To Clergy On Handling Sex Abuse Cases

The Vatican, through the Congregation for the Doctrine of the Faith, yesterday issued a detailed guide for clerics on handling clergy sex abuse cases.  Titled Vademcum: On Certain Points of Procedure In Treating Cases of Sexual Abuse of Minors Committed By Clerics (full text). The guide provides in part:

17. Even in cases where there is no explicit legal obligation to do so, the ecclesiastical authorities should make a report to the competent civil authorities if this is considered necessary to protect the person involved or other minors from the danger of further criminal acts.

The Vatican also issued a press release summarizing the Vademcum. The New York Times, reporting on these developments, said in part:

[T]he new instructions are not binding and were not enshrined in the church’s canon law, prompting criticism that the Vatican still gives bishops too much leeway in judging the conduct of their priests.

Sudan Liberalizes Its Laws On Apostasy, Alcohol, Criminal Sanctions and Women's Rights

Al Jazeera reported earlier this week on important legal reforms being implemented in Sudan:

Sudan approved wide-ranging amendments to its criminal law including repealing the death penalty for apostasy as well as no longer requiring women to need a permit from male family members to travel with their children....

Public flogging will also be ended and the consumption of alcohol by non-Muslims will now be permitted. ...

The new laws will also ban female genital mutilation (FGM)....

California's COVID-19 Ban On Worship Singing and Chanting Is Challenged

On Wednesday, a suit was filed in a California federal district court challenging California Governor Gavin Newsom's COVID-19 Order relating to restrictions on reopened church services.  The state's Guidance document requires that places of worship discontinue singing and chanting.  No similar requirement is placed on other reopened activities. The complaint (full text) in Calvary Chapel of Ukiah v. Newsom, (ED CA, filed 7/15/2020), alleges that the selective ban violates plaintiffs' 1st and 14th Amendment rights. It says in part:

The Worship Ban, on its face and as applied, impermissibly burdens Plaintiffs’ sincerely held religious beliefs, compel Plaintiffs to either change those beliefs or to act in contradiction to them, and force Plaintiffs to choose between the teachings and requirements of their sincerely held religious beliefs or the mandates in Defendants’ Worship Ban.

The Hill reports on the lawsuit.

British Court Says Foster Care Agency Can Serve Only Christians, But Cannot Exclude Gay Couples

In Cornerstone (North East) Adoption and Fostering Service Ltd. v. Office for Standards in Education, Children's Services and Skills, (England & Wales High Ct., July 7, 2020), a British judge ruled that a Christian adoption and foster care agency does not violate the Equality Act or the European Convention on Human Rights by recruiting only Evangelical Christians to be foster carers. However it does violate both the Equality Act and the Convention when it refuses to place children with Evangelical Christian same-sex couples. Christian News reports on the decision.

9th Circuit Hears Arguments In Hindu Challenge To California Curriculum Standards

Yesterday, the U.S. 9th Circuit Court of Appeals heard oral arguments (video of full oral arguments) in California Parents for the Equalization of Educational Materials v. Torlakson. In the case, a California federal district court dismissed the claim that California public schools' History-Social Science Content Standards adopted in 1998 and its History-Social Science Framework adopted in 2016 violate the Establishment Clause by demonstrating hostility toward Hinduism. (See prior posting.) Courthouse News Service reports on yesterday's oral arguments.

Poway Rabbi Pleads Guilty To Fraud Charges

Under a Plea Agreement (full text) in United States v. Goldstein, (SD CA, 7/14/2020), a California rabbi plead guilty to one count of conspiracy to defraud the United States and commit wire fraud. As set out in the Information (full text) filed at the same time as the plea agreement, Rabbi Yisroel Goldstein was charged with a scheme to help at least five other taxpayers evade income taxes and fraudulently received other benefits.  Goldstein would generate receipts for charitable donations, but funnel 90% of the contributions back to donors. Taxpayers would also use the receipts to generate matching contributions from their employers.  He would also assist other in obtaining fraudulent grants or loans, and falsely generate community service records for individuals sentenced to community service.

Rabbi Goldstein obtained public notice in 2019 when an attack on his synagogue in Poway resulted in one death and injuries to others including Goldstein.  Courthouse News Service reports on the case:

U.S. Attorney Robert Brewer said during a press conference Tuesday Goldstein had personally made off with $620,000 in kickback payments for helping five Chabad of Poway donors evade paying personal income taxes....

“There is no doubt Rabbi Yisroel Goldstein was the victim of a horrific hate crime which terrorized him and the Chabad community. That event was a significant mitigating factor in the final plea agreement,” Brewer said....

Brewer said when Goldstein is sentenced later this year, the U.S. Attorney’s Office will recommend probation. He cited Goldstein’s past and ongoing cooperation, community contributions and “exemplary” example as “a significant advocate for peace and the elimination of violence and religious hatred” following the 2019 shooting.

Goldstein will pay $2.5 million in restitution as part of the plea agreement, Brewer said.

Clergy Cannot Get Inmates' Executions Delayed Because of COVID Fears

In Hartkemeyer v. Barr, (SD IN, July 14, 2020), an Indiana federal district court refused to delay the execution of prisoners in two separate cases where the prisoners' ministers of record argued that scheduling the execution during the COVID-19 epidemic violates the clergy's rights under  RFRA.  Each of the clergymen had a sincerely held religious belief that they needed to attend to the spiritual needs of the prisoner facing execution.  The court rejected the argument, saying n part:

The mere scheduling of an execution imposes no obligation or restriction on the religious advisor whom the condemned prisoner has selected to attend.

CNA reports on the decision.

Court Rejects Church's Claim That Its Free Exercise Rights Include Cockfighting

In Plumbar v. Perrilloux, (MD LA, July 13, 2020), a Louisiana federal district court refused to issue a preliminary injunction against enforcement of Louisiana's statute that bans cockfighting.  Members of Holy Fight Ministries claim that cockfighting is an integral and essential part of their religious faith. In denying the injunction, the court said in part:

Defendants have provided satisfactory evidence to show that the state has a compelling interest in enacting a law banning cockfighting and because the evidence casts doubt upon the type of institution operated by Plaintiffs. In other words, the evidence suggests that the cockfighting activities were more commercial in nature than a bona fide religious ritual.

Court Upholds New Mexico's COVID-19 Limits On Church Services In Lengthy Opinion

In a 268-page opinion in Legacy Church, Inc. v. Kunkel, (D NM, July 13, 2020), Legacy Church lost its challenges under the Free Exercise Clause and the Freedom of Assembly Clause to New Mexico Department of Health Kathyleen Kunkel’s Public Health Emergency Orders imposing various restrictions on gatherings for religious services. Summarizing its holdings, the court concluded that the Public Health Orders "are neutral with respect to religion and generally applicable;" and they "are unrelated to the suppression of speech or religion, serve a compelling state, interest, and less restrictive alternatives are not available."

Abortion Rights Proponents Win In 4 Cases

A series of abortion rights rulings were handed down in the last few days:

In Sistersong Women of Color Reproductive Justice Collective v. Kemp, (ND GA, July 13, 2020), a Georgia federal district court permanently enjoined enforcement of Georgia's Living Infants Fairness and Equality (“LIFE”) Act which prohibits abortions after detection of a fetal heartbeat and recognizes unborn children as "natural persons."  Courthouse News Service reports on the decision.

In Memphis Center for Reproductive Health v. Slatery, (MD TN, July 13, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of two bans on pre-viability abortions. One bans abortions when a fetal heartbeat is detectable. The other bans pre-viability abortions sought because of the race or sex of the fetus, or because of a Down syndrome diagnosis. ACLU issued a press release announcing the decision.

In American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (D MD, July 13, 2020), a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of in-person requirements that barred women seeking a medical abortion from obtaining mifepristone through a mail-order or retail pharmacy or to receive the medication by mail from their healthcare provider. The court concluded:

in light of the COVID-19 pandemic, the In-Person Requirements cause an undue burden in violation of the Constitution, imposing a substantial obstacle on a large fraction of the relevant women seeking a medication abortion.

AP reports on the decision.

In Planned Parenthood of Maryland, Inc. v. Azar, (D MD, July 10, 2020), a Maryland federal district court enjoined implementation of HHS' "separate billing rule" which would have complicated the billing for abortion coverage in health insurance policies offered through state exchanges. As explained by the court:

HHS proposed that issuers would need to send two separate bills to the policyholder to comply with § 1303 (one bill for the portion of the premium attributable to non-Hyde abortion coverage and one for the rest of the premium), and instruct the policyholder to pay the premium attributable to non-Hyde abortion coverage in a separate transaction.

Health Affairs reports on the decision.

Recent Articles of Interest

From SSRN:

• Ananya Singh, The Dichotomy of the Sabarimala Verdict and Its Juxtaposition With the Private Law, Indian Secularism and Western Secularism, (June 7, 2020).
• Teresa Stanton Collett, Saints, Sinners, and Scoundrels: Catholic Law Faculty and A Light Unseen: A History of Catholic Legal Education in the United States, (St. John's Law Review , Forthcoming).
• Marc Spindelman, The Shower’s Return: A Serial Essay on the LGBT Title VII Sex Discrimination Cases, Part IV,  Part V, (81 Ohio State Law Journal Online 117, 133 (2020)).
• Dorit Rubinstein Reiss & Madeline Thomas, More Than a Mask: Stay-at-Home Orders and Religious Freedom, (San Diego Law Review, Vol. 57, No. 4, 2020).
• Zalman Rothschild, Free Exercise's Lingering Ambiguity, (11 Calif. L. Rev. Online 282 (July 2020)).
• Muhammad Pervaiz Khan, A Shariah and Legal Appraisal of the Financial Institutions (Recovery of Finances) Ordinance, 2001, (2017).
• Brian D. Galle, The Quick (Spending) and the Dead: The Agency Costs of Forever Philanthropy, (June 11, 2020).

4th Circuit: Rastafarian Inmate Can Move Ahead With His Suit Over Solitary Confinement

Smith v. Collins, (4th Cir., July 10, 2020), is a suit by a Rastafarian inmate who spent over four years in solitary confinement for refusal to cut his hair. The inmate, Elbert Smith, says that his religion does not permit him to do so. The court, vacating the district court's dismissal of the lawsuit, said in part:

we hold that there is at least a genuine dispute of material fact as to whether Smith’s conditions of confinement imposed a significant and atypical hardship in relation to the ordinary incidents of prison life. Therefore, we vacate the district court’s summary judgment order and remand the case for further proceedings consistent with this opinion. Specifically, on remand, the district court should consider in the first instance, and after further discovery, whether the process that Smith received was constitutionally adequate and whether the Defendant-Appellees are nevertheless entitled to qualified immunity.

Turkey's President Converts Hagia Sophia Museum Back Into A Mosque

AP reports on the controversial move by Turkey's President to change the status of a UNESCO World Heritage site:

The president of Turkey on Friday formally reconverted Istanbul’s sixth-century Hagia Sophia into a mosque and declared it open for Muslim worship....

The decision sparked deep dismay among Orthodox Christians. Originally a cathedral, Hagia Sophia was turned into a mosque after Istanbul's conquest by the Ottoman Empire but had been a museum for the last 86 years, drawing millions of tourists annually.....

Turkey's high administrative court threw its weight behind a petition brought by a religious group and annulled the 1934 Cabinet decision that turned the site into a museum. Within hours, President Recep Tayyip Erdogan signed a decree handing over Hagia Sophia to Turkey's Religious Affairs Presidency.

Certiorari Granted In College Student Religious Speech Case

Yesterday the U.S. Supreme Court granted review in Uzuegbunam v. Preczwski, (Docket No. 19-968, certiorari granted 7/9/2020). (Order List). The case grows out of a challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. Subsequently, the school changed its policies.  The U.S. 11th Circuit Court of Appeals held that the change mooted plaintiff's claim for nominal damages. (Full text of 11th Circuit opinion.) Appellants challenge that conclusion. ADF issued a press release on the grant of review.

RLUIPA Protects Religious Transition Home

In City Walk - Urban Mission Inc. v. Wakulla County Florida, (ND FL, July 9, 2020), a Florida federal district court granted a preliminary injunction requiring county officials to allow a church to operate a religious transition home for 3 to 6 unrelated adults. Neighbors had begun to complain when they learned that the home included registered sex offenders. The court said in part:

Defendant amended its Land Use Development Code, limiting Plaintiff to housing only two unrelated adults in the three-bedroom home at a given time....  The Religious Land Use and Institutionalized Persons Act ... provides broader protection for religious exercise than is available under the First Amendment. RLUIPA prohibits, among other things, a government from imposing a substantial burden on an entity’s or person’s religious exercise unless the government demonstrates that the imposition of the burden is in furtherance of a compelling interest and is the least restrictive means of furthering that compelling interest.

This Court finds Defendant’s two-adult limitation amounts to a substantial burden on Plaintiff’s religious exercise and that Defendant has failed to show that the burden imposed is the least restrictive means of furthering a compelling interest.

Supreme Court GVR's 3 Challenges To Contraceptive Mandate Exemptions

Today the U.S. Supreme Court summarily granted certiorari, vacated the judgment below and remanded to the U.S. 9th Circuit Court of Appeals three cases involving challenges to the Trump Administration's broadened contraceptive mandate exemptions.  The Court remanded for further consideration in light of its decision yesterday in Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania. The cases involved in today's GVR Order are Department of Health and Human Services v. California (Docket No. 19-1038), March for Life Education v. California (Docket No. 19-1040), and Little Sisters of the Poor v. California (Docket No. 19-1053). (Order List).