4th Circuit Refuses To Stay Injunction Allowing Mifepristone By Mail

Last month, a Maryland federal district court issued a preliminary injunction against enforcement during the COVID-19 public health emergency of Maryland's in-person requirements that bar 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. (See prior posting.) Now in American College of Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (4th Cir., Aug. 13, 2020), the U.S. 4th Circuit Court of Appeals refused to grant a stay of the injunction pending appeal. Courthouse News Service reports on the court's order. [Thanks to Scott Mange for the lead.]

Churches Challenge Minnesota COVID-19 Limits On Worship Services

Three churches and their pastors filed suit this week in a Minnesota federal district court challenging the state's COVID-19 limits on worship services.  The complaint (full text) in Cornerstone Church of Alexandria v. Walz, (D MN, filed 8/13/2020), alleges in part:

The plaintiffs’ religious liberties under the Free Exercise Clause of the First Amendment of the United States Constitution have been violated by Governor Walz’s Executive Orders 20-74 and 20-81. Although during a pandemic, the ordinary constitutional test of strict scrutiny may not apply to the Governor’s regulation of church activities (although it is still argued here in Count I), the government’s regulations must still be “capable of a reasoned application” as they would be for a non-public forum....

Thomas More Society issued a press release announcing the filing of the lawsuit.

Suit Challenges California COVID-19 Limits On Worship Services

 A church and its pastor filed suit this week in a California state trial court challenging on state constitutional grounds California's COVID-19 restrictions on worship services. The complaint (full text) in Grace Community Church of the Valley v. Newsom, (CA Super. Ct., filed 8/12/2020) reads in part:

13. It is time for California to recognize that disfavored religious minorities are not second-class citizens. It is time for California to explain how it can justify banning worship to prevent the spread of a disease (with an overall mortality rate of 0.02%) while it is fine for protestors to spread that disease like wildfire.... In a society hostile to religion, banning worship might be justified to prevent deaths. But how can California—the land of the Missions—justify unfairly imposing the burden of lowering coronavirus infection rates (not death rates) on worshippers?

14. The California State Constitution ... specifically protects the individual right to free exercise of religion. The State would not be justified to place restrictions disparately and unequally in the manner it has even against a regular business or gathering; however, Grace Community Church and every other house of worship in California enjoy heightened protection because our Founders recognized that the church has throughout world history been the target of secular kings and tyrants, not unlike Gavin Newsom....

Thomas More Society issued a press release announcing the filing of the lawsuit.

Kamala Harris Has Varied Religious Background

 Religion News Service reports on the broad exposure to various religious faiths experienced by Kamala Harris, the presumptive Democratic nominee for vice-president. Her mother was Hindu, but she grew up attending predominately Black churches. She now considers herself a Black Baptist. Her husband Douglas Emhoff is Jewish.

Indian Tribe Sues To Stop Trump's Border Wall

 A California Indian tribe filed suit this week in a California federal district court challenging the construction of President Trump's border wall.  The complaint (full text) in La Posta Band of Diegueno Mission Indians v. Trump, (SD CA, filed 8/11/2020), alleges in part:

Since time immemorial, the Kumeyaay people have lived in the area ... surrounding what is now the United States-Mexico border. Since the arrival of Europeans in the region, the Kumeyaay territory, culture, religion, and very existence have been under attack to make way for non-Indian settlement. In the most recent episode of Indigenous erasure, the President of the United States and his administration are desecrating Kumeyaay ancestral burial and sacred sites to make way for a wall along the United States’ southern border. The La Posta Band of the Diegueño Mission Indians ... bring this complaint to halt the construction of the border wall—a project being funded and constructed without authorization from Congress and which is violating the constitutional rights of the La Posta citizens—until the Defendants can guarantee adequate consultation and protection of La Posta religious practices and cultural heritage....

The Defendants are excavating and desecrating Kumeyaay burials without allowing La Posta access to properly treat the exhumed remains....

The border wall has made and will continue to make Kumeyaay sacred sites that lie within and south of the Project Area inaccessible....

Times of San Diego reports on the lawsuit. 

Challenge To Anti-Discrimination Exemptions For Foster Care Agencies Moves Ahead

 In Maddonna v. U.S. Department of Health and Human Services, (D SC, Aug. 10, 2020), a South Carolina federal district court allowed a prospective foster parent to challenge state and federal exemptions from anti-discrimination requirements that allowed a Catholic foster care agency to work only with families that share the agency's religious beliefs.  Even though the case had once been dismissed, without prejudice, for lack of standing (see prior posting), the court now found standing.  The court then refused to dismiss plaintiff's Establishment Clause claim, saying in part:

Plaintiff has plausibly alleged that Defendants conveyed a message endorsing religion by allowing state-licensed, government-funded CPAs to reject prospective foster parents based on religious criteria....

“[T]he core rationale underlying the Establishment Clause is preventing ‘a fusion of governmental and religious functions[.]’” ... According to the Complaint, the system which Defendants’ “accommodations” have created “does not by its terms require that [religiously affiliated CPAs’] power be used in a religiously neutral way.” ... Rather, under the Executive Order and the HHS Waiver, religiously-affiliated CPAs’ power to accept or reject prospective foster parents is completely “standardless, calling for no reasons, findings, or reasoned conclusions.”

Christian Post reports on the decision.

Suit Claims Mask Requirement At Church Services Violates Free Exercise Protections

 A suit filed last week in a Florida state trial court contends that a Florida county's COVID-19 face covering requirement violates, among other things, the free exercise rights of plaintiff, a pastor.  The complaint (full text) in Tillis v. Manatee County, (FL Cir. Ct., filed 8/2/2020) contends that the mask requirement violates the state constitution's free exercise clause, as well as the Florida Religious Freedom Restoration Act because it:

requires both clergy members like Plaintiff and churchgoers to wear masks during service or face government civil fines and punishment.... [T]he requirement to wear a mask ... infringes upon the free exercise of Plaintiff's religion by making it more difficult for him to preach and for members of the choir at his church to sing.

The Conversation reports on the lawsuit.

11th Circuit: Ecclesiastical Abstention Doctrine Covers Church Leadership Dispute

In Eglise Baptise Bethanie De Ft. Lauderdale, Inc. v. Seminole Tribe of Florida, (11th Cir., Aug. 19, 2020) the U.S. 11th Circuit Court of Appeals affirmed a Florida federal district court's dismissal of a suit filed to settle a dispute over church leadership between the church's board of directors and the widow of its deceased pastor. One faction enlisted tribal police to evict worshipers supporting the other faction during a worship service. The court said in part:

The plaintiffs claim that the district court erred in dismissing the claims against Auguste because their claim—rather than involving ecclesiastical disputes—is merely a property dispute. That framing ignores two threshold issues. Before reaching the plaintiffs’ § 248 claim, a court would need to determine whether Auguste was the rightful successor to the church’s leadership and, if she was, whether Auguste had the authority to exclude the plaintiffs from the church’s property. Answering these questions would require us to inquire into church rules, policies, and decision-making and questions of church governance are manifestly ecclesiastical.

Nigerian Court Sentences Musician To Death For Blasphemy

 BBC News reports:

A musician in Nigeria's northern state of Kano has been sentenced to death by hanging for blaspheming against the Prophet Muhammad.

An upper Sharia court in the Hausawa Filin Hockey area of the state said Yahaya Sharif-Aminu, 22, was guilty of committing blasphemy for a song he circulated via WhatsApp in March.

Mr Sharif-Aminu did not deny the charges.

Judge Khadi Aliyu Muhammad Kani said he could appeal against the verdict....

Only one of the death sentences passed by Nigeria's Sharia courts has been carried out since they were reintroduced in 1999.

8th Circuit Vacates Injunction Against Arkansas Abortion Regulations

 In Hopkins v. Jegley, (8th Cir., Aug. 7, 2020), the U.S. 8th Circuit Court of Appeals in a 7-page per curiam opinion vacated an Arkansas federal district court's preliminary injunction against four Arkansas statutory provisions restricting abortions. At issue were 2017 enactments: (1) the Arkansas Unborn Child Protection from Dismemberment Abortion Act; (2) the Sex Discrimination by Abortion Prohibition Act, (3) requirements regarding the disposition of fetal remains, and (4) a requirement to maintain forensic samples from abortions performed on a child. The court remanded the case for consideration in light of Chief Justice Roberts’s separate opinion in June Medical Services v. Russo. The court said in part:

According to Chief Justice Roberts, the appropriate inquiry under Casey is whether the law poses “a substantial obstacle” or “substantial burden, not whether benefits outweighed burdens.”...

Here, the district court—without the benefit of Chief Justice Roberts’s separate opinion in June Medical—applied the Whole Woman’s Health cost-benefit standard to the challenged laws....

In addition, the district court relied on Whole Woman’s Health’s “holding that the ‘statement that legislatures, and not courts, must resolve questions of medical uncertainty is . . . inconsistent with this Court’s case law.’” ... Chief Justice Roberts, however, emphasized the “wide discretion” that courts must afford to legislatures in areas of medical uncertainty.

Courthouse News Service reports on the decision. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

From SSRN:

• Robert F. Cochran, Jesus and the Mosaic Law: Agapic Love as the Foundation and Objective of Law, (Touro Law Review, Vol. 36, No. 1, 2020).
• James M. Oleske, Jr., In the Court of Koppelman: Motion for Reconsideration, (2020 BYU Law Review, Forthcoming).
• Nicholas Aroney, Law, Education and Religion — Pathways to the Good Society?,(July 8, 2020).
• Itzchak E. Kornfeld, Equity in American and Jewish Law, (Touro Law Review, 2020).
• Jack M. Balkin, Obergefell v. Hodges: A Critical Introduction, (to appear in Jack M. Balkin, ed., What Obergefell v. Hodges Should Have Said: The Nation's Top Legal Experts Rewrite America's Same-Sex Marriage Decision (Yale University Press 2020).
• Rigel Christine Oliveri, Sexual Orientation and Gender Identity Discrimination Under the Fair Housing Act After Bostock v. Clayton County, (University of Missouri School of Law Legal Studies Research Paper No. 2020-23).
• Ryan T. Anderson & Robert George, The Unfairness of the Misnamed 'Fairness For All' Act, (Notre Dame Journal of Legislation Online Supplement, 2020).
• Nan D. Hunter, Reconstructing Liberty, Equality, and Marriage: The Missing Nineteenth Amendment Argument, (Georgetown Law Journal, Vol. 108, Issue 7, Nineteenth Amendment Special Edition, pp. 73-104 (2020).
• Jacob Russell, For Whom Are Non-Profit Managers Trustees? The Contractual Revolution in Charity Governance, (Laby & Russell, eds., Fiduciary Obligations in Business (Cambridge University Press, Forthcoming)).
• David M. Schizer, Enhancing Efficiency at Nonprofits with Analysis and Disclosure , (Columbia Journal of Tax Law, Volume 11, Number 2, Pgs. 76 - 134 (July 30, 2020)).

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

• Faizan Kirmani, A New Theory on the Quraanic Term Hadd (pl.Hudood), (Journal of Legal Studies And Research, 2020).
• Adnan Zulfiqar, Pursuing Over-Criminalization at the Expense of Islamic Law, (Harvard Journal of Islamic Law, Forthcoming).
• Dimitry Kochenov & Uladzislau Belavusau, After the Celebration: Marriage Equality in EU Law post-Coman in Eight Questions and Some Further Thoughts, (Forthcoming in 27 Maastricht Journal of European and Comparative Law 2020).
• Reza Hasmath, Future Responses to Managing Muslim Ethnic Minorities in China: Lessons Learned from Global Approaches to Improving Inter-Ethnic Relations, (2020).
• Augustine Arimoro & Abba Elgujja, When Dissent by Football Fans On Social Media Turns to Hate: Call for Stricter Measures, (University of Maidguri Journal of Public Law Vol. 6 Iss. 1 (2019)).
• Charlotte Ku, What Can Islamic Law Practice Tell Us About the Peaceful Resolution of International Disputes, (International Studies Review, Forthcoming).
• Phillip Morgan, Judgment-Proofing Voluntary Sector Organisations from Liability in Tort, ((2020) 6 Canadian Journal of Comparative and Contemporary Law).

From SmartCILP:

• Stephen M. Krason, The Constitutional Jurisprudence of William Bentley Ball and Charles E. Rice, [Abstract], 16 Ave Maria Law Review 1-35 (2018).
• Michael Quinlan, The Twenty-First Century Catholic Lawyer, [Abstract], 16 Ave Maria Law Review 36-61 (2018).

Weddings In Restaurant Cannot Be Limited More Than Dining

 In DiMartile v. Cuomo, (ND NY, Aug. 7, 2020), a New York federal district court preliminarily enjoined enforcement of a COVID-19 50-person limit on weddings when they are held in a restaurant which is allowed to seat more people when operating for dining. The court said in part:

The Court is not persuaded by the State Defendants’ argument that the fact that part of the purpose of a wedding is for the married couple to interact with friends and family is sufficient to justify finding that weddings are practically dissimilar from ordinary dining and thus do not merit to be treated the same as an ordinary dining use of the venue.

2nd Circuit Enjoins Pending Appeal Vermont's Exclusion of Catholic High School Students From Dual Enrollment Program

As previously reported, earlier this year a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program that pays for high schoolers to take college courses. This week, in E.M. v. French, (2d Cir., Aug. 5, 2020), the U.S. 2nd Circuit Court of Appeals in a brief order granted an emergency injunction pending appeal, saying:

In light of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), Appellants have a strong likelihood of success on the merits of their claims.

ADF issued a press release  announcing the 2nd Circuit's action.

Catholic Group Threatens Litigation Over BLM Attempts To Remove References To Famous California Priest

One of the historical figures now seen as problematic by the Black Lives Matter Movement is the 18th century Catholic priest Father Junipero Serra, who was canonized in 2015 by Pope Francis during his trip to the United States. As explained by an RNS article earlier this year:

While Serra is credited with spreading the Catholic faith across what is now California, critics say Serra was part of an imperial conquest that beat and enslaved Native Americans.

Serra, who was born in Spain, came to the Americas in 1749, and in 1769 he founded the first of what would become 21 missions along the California coast.

Native Americans brought into the mission to be evangelized were not allowed to leave the grounds. Many labored for no pay. There is evidence of beatings, imprisonment and other abuse at the hands of the missionaries.

In light of this, the city of San Buenaventura last month voted to remove a statue of Serra that stands in front of City Hall. Recently efforts have been made to remove Serra from the city's police badges and the Ventura County seal. The Thomas More Society contends that these moves are anti-Catholic, and this week it sent a demand letter (full text) to the city and county, saying in part:

should Ventura remove Fr. Serra from its Seal, its Police Badges, or any other similar prominent municipal location, we will bring a claim seeking to enjoin such conduct under the Establishment Clause of the U.S. Constitution, and seek our attorneys’ fees. Our firm was lead counsel in defending the Mt. Soledad Cross in San Diego—which proudly still stands today—and we have extensive experience in ensuring that our attorneys’ fees are paid when we prevail. Thank you for considering the below as you take subsequent action during these times of national and local anti-Catholic sentiment....

For California Catholics generally, Fr. Serra is “the Apostle of California,” “the first saint to be canonized on U.S. soil and by the first pope from the Americas.” ... For them, the attacks on Fr. Serra “call[] to mind very similar activities at earlier stages of American history. In the mid to late nineteenth century, anti-Catholicism was rampant in the United States, due in part to prejudices inherited from Protestantism but also due to the arrival of large groups of immigrants from Catholic countries,  who were considered inferior.”... For them, “how can [they] not see the ugly specter of anti-Catholicism raising its head” again?

For all Catholics, the only reasonable way to view the attacks on Fr. Serra are as attacks on a psychological mascot, or a “convenient scapegoat and whipping boy,” for those who hate Catholics and who hate that they evangelized native peoples.

Life Site News reports on these developments.

County Sues Church For Violation of COVID Orders

The county of Ventura, California filed suit in a state trial court yesterday seeking a temporary restraining order and an injunction against a church and its pastor for holding indoor worship services in violation of state and local COVID-19 orders.  The complaint (full text) in County of Ventura v. Godspeak Calvary Chapel, (CA Super. Ct., file 8/5/2020), alleges in part:

The wrongful conduct of defendants ..., unless and until enjoined and restrained by the court, will cause and continue to cause great and irreparable injury to the general public ... by creating a significant risk of further community spread of COVID-19, including hospitalizations and deaths, which in turn is likely to result in continued and further restrictions on businesses and other operations and activities within Ventura County, detrimentally affecting the quality of life of the entire community.

Ventura County Star reports on the lawsuit.

Trump Campaign Circumvents Nevada Church Limits By Holding Evangelical Rally At Casino

As previously reported, last month the U.S. Supreme Court refused to grant an injunction pending appeal to a Nevada church challenging the differential treatment of churches and casinos under the Governor's COVID-19 orders. Now according to Microsoft News:

President Trump's campaign is holding an "Evangelicals for Trump" event on Thursday at a Las Vegas hotel and casino, amid a controversial ban in the state on gatherings of more than 50 people in houses of worship while places like casinos are subject to a less stringent 50 percent capacity limit.

The event is scheduled to take place at ... one of the many joint hotels and casinos in Las Vegas. It will feature Trump spiritual adviser Pastor Paula White ... and others. The full event title is "Evangelicals for Trump: Praise, Prayer and Patriotism."

"In a time when many Nevadans can’t go to church because of overreaching restrictions, President Trump’s campaign is bringing together evangelicals from across the community to pray, worship and discuss key issues facing Americans in the November election," Trump 2020 deputy national press secretary Ken Farnaso said in a statement.

Suit Says Chicago Schools Program Promoted Hindu Beliefs

Organizations comprised of parents, students and churches this week filed suit in an Illinois federal district court challenging on Establishment Clause and free exercise grounds the "Quiet Time" program that has been implemented in a number of Chicago public schools. the complaint (full text) in Separation of Hinduism From Our Schools v/ Chicago Public Schools, (ND IL, filed 8/3/2020), alleges in part:

3. Although all named Defendants have made statements to the contrary, the “Quiet Time” program is based in Hindu beliefs and the practice of “Transcendental Meditation” is fundamentally religious in nature.

4. Plaintiffs’ rights under the First Amendment were violated when Defendants created environments within public schools where Hindu beliefs and the practice of “Transcendental Meditation” were being endorsed and students were coerced to engage in religious practices against their wills.

Christian News reports on the lawsuit.

New York Child Victims Act Filing Window Is Extended

Yesterday New York Governor Andrew Cuomo signed into law S7082 (full text) which extends the window for Child Victims Act lawsuits until August 14, 2021. (Press release). Originally, the window was for a one-year period ending this month. CNA, reporting on the new legislation, says that the change in the law was motivated by concern that the Covid pandemic has deterred many victims from coming forward in time to meet the prior deadline.

Anti-Kapparot Group Renews Attempt To Get NYC Police Enforcement of Health Code

As previously reported, in 2018 New York's highest court refused a writ of mandamus to require enforcement of public health and animal cruelty laws against the Jewish pre-Yom Kippur religious practice of kaporos using live chickens. The court held that mandamus cannot be used to order discretionary enforcement action.  Now a motion to renew the request for a mandamus petition has been filed, alleging that the COVID-19 pandemic has revealed new evidence relevant to the claim. In Alliance to End Chickens as Koporos v. New York City Police Department, (NY Ct. Sup. Ct.) a motion and affidavit (full text) filed 7/6/2020, focuses in large part on the animal-to-human spread of COVID-19, saying in part:

99. In light of the health, economic, and financial devastation caused [by] Covid-19, in light of how this pandemic [has] caused our lives to come to a grinding halt, in light of the hundreds of thousands of lives lost worldwide, and in light of the fact that Covid-19 originated from a live animal wet market, we cannot allow our police department to pick and choose what lows to enforce when it comes to the health code. Too much is at stake, which we all so painfully are currently aware of.

JTA reports on these developments. Attorney for plaintiffs issued a press release on the filing.

Attack On Connecticut COVID-19 Orders Rejected

In Murphy v. Lamont, (D CT, Aug. 3, 2020), a Connecticut federal district court rejected a wide-ranging constitutional attack, including 1st Amendment challenges, on the COVID-19 orders of Connecticut Governor Ned Lamont. The court found that plaintiffs lack standing, saying in part:

... Barnes asserts that he is “impeded from attending church.”... However, because no Executive Order prohibits religious worship, Barnes cannot show that the conduct he wishes to engage is “proscribed by statute.” ... Furthermore, Barnes alleges no facts as to his intention to attend religious services or any specific occurrence where he was prevented from doing so.

Murphy also asserts an injury to his religious liberty, along with his freedom of association. He alleges that, “[b]efore the illegal lock down orders, my family participated in a homeschooling group, in which we met in a church. We have not met since this lock down.”... Like Barnes’ allegations, these allegations are too vague to establish an injury-in-fact.

The court also found that plaintiffs were unlikely to succeed on the merits, saying in part:

Executive Order 7TT limits attendance of places of worship to 25% of building capacity or a maximum of 100 attendees, whichever is fewer.... In South Bay United Pentecostal Church, 140 S. Ct. at 1613, the Chief Justice, in his concurrence in the judgment denying a temporary injunction, found that those same restrictions (in California) did not violate the Free Exercise Clause. The court reaches the same conclusion here. The challenged Executive Orders are plainly neutral, and plaintiffs have not proffered any evidence to suggest that the Governor has any animus towards religious organizations. Indeed, more severe restrictions apply to secular gatherings.