Alabama's Voter Registration Oath Is Challenged

Yesterday four Alabama residents filed suit challenging language in Alabama's voter registration form. The oath in the form ends with "so help me God." No secular alternative is available.  The complaint (full text) in Cragun v. Merrill, (ND AL, filed 10/01/2020) contends that the absence of a secular alternative violates the Establishment, Free Exercise, Free Speech and Equal Protection Clauses. Freedom From Religion Foundation issued a press release announcing the filing of the lawsuit.

Denial of Church's Sewer Extension Application Did Not Violate RLUIPA or Constitution

 In Canaan Christian Church v. Montgomery County, Maryland, (D MD, Sept. 30, 2020), a Maryland federal district court, in a 54-page opinion, rejected challenges to the county's refusal to extend public sewer lines to a site on which plaintiffs wished to build a 2000-seat church. The court rejected plaintiff's "substantial burden" claim under RLUIPA, finding that the church had no reasonable expectation that the sewer extension would be approved.  The court also rejected RLUIPA "unreasonable limits" and "unequal terms" claims. It went on to reject equal protection and free exercise challenges.

No Fault Divorce Does Not Infringe Husband's Free Exercise Rights

 In Melki v. Melki,(MD App., Sept. 29, 2020), the Maryland Court of Special Appeals rejected a husband's claim that granting his wife a no-fault divorce violates his free exercise rights. In addition to rejecting jurisdictional and contract clause challenges, the court said in part:

Because the Orthodox faith does not permit divorces absent fault, Husband claims that the dissolution of the marriage on the grounds of a twelve-month separation would unconstitutionally force him to commit a mortal sin according to his religion.... Because a trial court granting a divorce merely dissolves a civil contract between the spouses, courts universally hold that no-fault divorce statutes do not infringe on the right to the free exercise of religion, even if a spouse’s religious beliefs prohibit no-fault divorces....

 Husband "still has [his] constitutional prerogative to believe that in the eyes of God, [he] and [his] estranged [wife] are ecclesiastically wedded as one...." ... In fact, it might well violate the Establishment Clause of the First Amendment to compel Wife to remain married to Husband because of Husband’s religious beliefs, for the court would then be preferring one spouse’s beliefs over the other spouse’s.

Court Temporarily Halts Enforcement of Tennessee's Mandated Abortion Reversal Disclosures

 In Planned Parenthood of  Tennessee and North Mississippi v. Slatery, (D TN, Sept. 29, 2020), a Tennessee federal district court issued a temporary restraining order barring enforcement of a Tennessee law scheduled to take effect Oct. 1 which requires abortion providers to tell patients that medication abortions, once started, can be reversed. Plaintiffs claim that this violates their 1st Amendment rights by forcing them to provide patients with inaccurate information. In temporarily restraining enforcement of the law, the court said in part:

The Court is unable to assess fully the competing expert opinions as to whether the mandated message is “truthful and not misleading,” in the absence of the experts’ testimony, adduced through direct and cross examination. That assessment must await the preliminary injunction hearing....

Nevertheless, the Court does not need to await the hearing to determine that another aspect of the mandated message is “misleading.” The statute gives the Department of Health a period of up to 90 days in which to publish information, on its website and in printed materials, about the possibility of reversing the effects of a chemical abortion.... Section 218 requires abortion providers to tell patients that “information on and assistance with reversing the effects of a chemical abortion” is available on the Department of Health website, when in fact, such information and assistance may not be available.

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

Vermont's Town Tuition Program Challenged

In Vermont, school districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved private high school. Suit was filed this week in a Vermont federal district court challenging the exclusion of private religious schools from participating in this program, alleging that the exclusion violates free exercise, free speech and equal protection rights.  The complaint (full text) in A.H. v. French, (D VT, filed 9/28/2020) alleges in part:

Denying a public benefit based on the religious status of a child's school penalizes families who choose to exercise their faith by sending their children to religious schools. The school district's denial also discriminates against religious private schools because although the school board categorically refuses to fund tuition to religious schools, it regularly provides such funds to secular private schools. This discrimination violates the Free Exercise Clause's neutrality principle.

ADF issued a press release announcing the filing of the lawsuit.

Preliminary Injunction Denied In Suit Targeting Colorado's COVID-19 Limits On Size of Religious Gatherings

On Monday, a challenge to Colorado's COVID-19 orders was filed.  In a 98-page complaint, a religious conference center and affiliated Bible college claim that Colorado's limitation on the number of persons who can attend in-person religious services violates its 1st and 14th Amendment rights. The complaint (full text) in Andrew Wommack Ministries, Inc. v. Polis, (D CO, filed 9/28/2020), alleges unconstitutional discrimination between religious gatherings and non-religious gatherings, as well as between the Ministries' religious and nonreligious gatherings in the same facilities, giving examples such as:

178. Under the Governor’s Orders, AWMI’s volunteers may provide nonreligious counseling, social services, and other necessities of life for women constituents of Life Network’s Colorado Springs Pregnancy Center and Choices Pregnancy Center may be administered in unlimited numbers, provided only that social distancing is satisfied.

179. But, if volunteers associated with AWMI and Charis Bible College students transition from providing these women with counseling, social services, food, clothing, and other necessities of life to providing them spiritual counseling, spiritual food in the form of communion, or otherwise transitions to a religious worship service with the same women in the same room, the Governor’s Orders would automatically subject them to criminal penalties for hosting an impermissible worship service if there is more than 175 women in the room.

The complaint says that speedy relief is required:

4. The Governor’s Orders interfere with and place a cloud of potential criminal and civil legal action over AWMI’s upcoming Pastor’s Conference scheduled to begin at 7:00 PM on October 5, 2020. In addition to outside pastors and ministers who are invited to the conference, attendance at the conference is a required part of the education program for all 652 students at Charis Bible College.

Liberty Counsel issued a press release announcing the filing of the lawsuit.

On Tuesday, in a 7-page order (full text), a Colorado federal district judge denied a preliminary injunction, pointing out:

United States District Judge Raymond Moore recently rejected Plaintiff’s arguments in High Plains Harvest Church v. Polis.... Additionally, the Seventh Circuit recently rejected a church’s argument that similar public health laws unconstitutionally favored secular activity

Plaintiff immediately filed a Notice of Appeal.

Recent Virginia Anti-Discrimination Statutes Challenged

 Two lawsuits filed this week challenge two recently enacted Virginia statutes-- SB 868 prohibiting discrimination in public accommodations and employment, and HB 1429 that prohibits discrimination against transgender individuals in health insurance policies.

The complaint (full text) in Calvary Road Baptist Church v. Herring, (VA Cir. Ct., filed 9/28/2020) was filed by churches, Christian schools and pregnancy centers and alleges that the laws require plaintiffs to hire employees, provide insurance coverage and offer services that violate their religious beliefs on marriage, sexuality and gender.

The complaint (full text) in Updegrove v. Herring, (ED VA, filed 9/28/2020) was filed by a photographer who will "not provide wedding photography that celebrates any marriage not between one man and one woman, such as same-sex, polygamous, or open engagements or marriages, because [he] believes that God created marriage to be an exclusive union between one man and one woman."

ADF issued a press release announcing the filing of the lawsuits.

Recent Articles of Interest

From SSRN:

• Yuval Shany, The Road Taken: ICCPR and discriminatory restrictions on religious freedom, (Harvard Human Rights Journal (forthcoming in 2021)).
• Anthony Aladekomo, Analysis of Intersection between Law and Religion, (July 13, 2020).
• Audra Savage, The Religion of Race: The Supreme Court as Priests of Racial Politics, (Utah Law Review, Forthcoming).
• Christopher C. Lund, Reconsidering Thornton v. Caldor,  (Washington University Law Review, Vol. 97, p. 1687, 2020 (symposium)).
• Hiroshi Fukurai, The Decoupling of the Nation and the State: Constitutionalizing Transnational Nationhood, Cross-Border Connectivity, Diaspora, and 'National' Identity-Affiliation in Asia and Beyond, (Asian-Pacific Law & Policy Journal, Forthcoming).
• Kareem Olatoye &Abubakri Olakulehin Yekini, Islamic Law in Southern Nigerian Courts: Constitutional and Conflict of Laws Perspectives, ((2019) 6 Benin Journal of Public Law).
• Steven Semeraro, We’re All Originalists Now . . . Or Are We?: Bostock’s Misperceived Quest to Distinguish Title VII’s Meaning From the Public’s Expectations, (Hofstra Law Review, Forthcoming).
• Justin Driver, Freedom of Expression within the Schoolhouse Gate, (Arkansas Law Review, Vol. 73, No. 1, 2020).
• Elyssa Spitzer, Pregnancy's Risks and the Health Exception in Abortion Jurisprudence, (Georgetown Journal of Gender and the Law, Forthcoming).
• Ediberto Roman & Ernesto Sagás, Fear and Loathing in Trump's America: The Consequences of Inspiring Hate and Violence, (Florida International University Legal Studies Research Paper No. 20-20 (2020).
• Jeffrey A. Redding, Review of Damian A. Gonzalez Salzberg, Sexuality and Transsexuality Under the European Convention on Human Rights: A Queer Reading of Human Rights Law, (83 Modern Law Review 702-07 (2020)).

From SmartCILP:

• Xavier Bothwell & Anthony Peirson, International Standards for Protection of Religious Freedom, 23 Annual Survey of International & Comparative Law 49-78 (2018).

Parents' Suit Against Christian High School Dismissed On Ecclesiastical Abstention Grounds

 In In re Prince of Peace School, (TX App., Sept. 23, 2020), a Texas state appellate court dismissed on ecclesiastical abstention grounds a suit by parents whose children were expelled from a Lutheran high school after the parents accused school personnel of harassing and bullying their children in connection with disciplinary issues. The court said in part:

Parents’ claims are premised on allegations that Prince of Peace failed to hire qualified staff and appropriately supervise its staff’s interactions with Students, including by failing to report suspected abuse of Students by its staff. Defense of these claims rests on Prince of Peace’s internal and religiously-informed policies and code of conduct. Judicial resolution of the claims would thus require impermissible intrusion in Prince of Peace’s management of these matters.

Trump Sends Message To "The Return"

 As reported by CBN News, thousands of Christians gathered on the National Mall today for The Return: National and Global Day of Prayer and Repentance.  The event was organized by Messianic Jewish pastor Jonathan Cahn and featured numerous Christian speakers, including Anne Graham Lotz, daughter of evangelist Billy Graham. (CBN News). President Trump sent a written message (full text) to the event, which read in part:

On this inaugural National Day of Prayer and Return, the First Lady and I join millions of Christians here in the United States and around the world in prayer, as we turn our hearts to our Lord and Savior....

The trials and tribulations the American people have faced over the past several months have been great.  Yet, as we have seen time and again, the resolve of our citizenry—fortified by our faith in God—has guided us through these hardships and helped to unite us as one Nation under God.

11th Circuit Grants En Banc Review In Case of Religious Statement By Juror

As reported by Florida News Service, yesterday the U.S. 11th Circuit Court of Appeals granted en banc review (full text of order) in United States v. Corrine Brown. In the case, a 3-judge panel, in a 2-1 decision, affirmed the trial court's dismissal of a juror in the fraud case of former Florida representative Corrine Brown. At issue was a statement made by one of the jurors during deliberations that "A Higher Being told me Corrine Brown was Not Guilty on all charges." (See prior posting.)

EEOC Sues On Behalf of Seventh Day Adventist

 The EEOC announced yesterday that it has filed suit in a Texas federal district court against Quest Diagnostics for refusing to accommodate the religious beliefs of a long-time employee. The EEOC said in part:

[T]he employee, a phlebotomist, is a practicing Seventh-day Adventist who began working for Quest Diagnostics in 2008. The phlebotomist’s religious beliefs prevent her from working on her Sabbath from sundown on Friday to sundown on Saturday. Quest honored her request for religious accommodation not to work on her Sabbath for the first 10 years of her employment. But in her 11th year with the company, Quest told her it would no longer accommodate her. After the revocation of her accommodation, she was forced to call “out” on each Saturday shift she was scheduled to work until she was ultimately fired by Quest.

Trump and Barr Speak At National Catholic Prayer Breakfast

Yesterday both President Trump (in a pre-recorded address-- full text) and Attorney General William Barr spoke at the National Catholic Prayer Breakfast, held online this year (video of entire breakfast). In his remarks, President Trump said in part:

Today I am announcing that I will be signing the Born Alive Executive Order to ensure that all precious babies born alive, no matter their circumstances, receive the medical care that they deserve. This is our sacrosanct moral duty. We are also increasing federal funding for the neonatal research to ensure that every child has the very best chance to thrive and to grow.

Attorney General Barr was presented the Christifideles Laici Award. In his acceptance speech (full text), he said in part:

That crucial link between religion and liberty, so well understood at the Founding, is all too often forgotten today.  In American public discourse, perhaps no concept is more misunderstood than the notion of “separation of church and state.”  Militant secularists have long seized on that slogan as a facile justification for attempting to drive religion from the public square and to exclude religious people from bringing a religious perspective to bear on conversations about the common good.

Yet as events like this one remind us, separation of church and state does not mean, and never did mean, separation of religion and civics... 

Unfortunately, in the last half century, that foundation of our free society has increasingly been under siege.  Traditional morality has eroded, and secularists have often succeeded not only in eliminating religion from schools and the public square, but in replacing it with new orthodoxies that are actively hostile to religion.  The consequences of this hollowing out of religion have been predictably dire....

Wherever we are in life, it is never too late to work in the Lord’s vineyard.  Our spiritual renewal, and the renewal of our national character, depend on it.

Irish Court Focuses On Importance of Witness Oath

 N.D. (Albania) v. International Protection Appeals Tribunal, (High Ct. Ireland, Sept. 22, 2020), was a suit brought by an Albanian woman who is challenging her order of deportation from Ireland. The suit seeks review of a decision of Ireland's International Protection Appeals Tribunal. The High Court dismissed the challenge on procedural grounds, while, however, also dealing with petitioners' claim that the Appels Tribunal decision was invalid because no oath was administered to her in the proceeding. The court said in part:

[W]hile the ongoing secularisation of society makes oaths, with their emphasis on religious beliefs, look like a pre-Enlightenment anachronism and an embarrassment, the unfortunate reality is that the oath still has a powerful role in bringing out the truth. There are people who are relatively untroubled about the theoretical civil and criminal consequences of lies to a court or tribunal, but who nonetheless hesitate if asked to call down their deity as a witness to such lies. The rational, bureaucratic, mind fails to appreciate that merely stiffening the criminal penalties for perjury has no effect whatever on that viewpoint.

Irish Legal News Reports on the decision.

Church Challenges D.C.'s COVID-19 Orders

The first suit by a church challenging the District of Columbia's COVID-19 Orders was filed last week by an 850-member evangelical congregation.  The D.C. Orders limit the number of persons who can gather for religious services. The complaint (full text) in Capitol Hill Baptist Church v. Bowser, (D DC, filed 9/22/2020), alleges in part:

For nearly 2,000 years, Christians have gathered each Sunday throughout the year in observance of Christ’s resurrection from the dead on the first day of the week, and the physical gathering of the church is central to that celebration. Indeed, the Greek word translated as “church” in our English versions of the Christian scriptures is “ekklesia,” which literally means “assembly.”... 

As with other communities of Christian faith around the country, CHBC believes that a central part of following Christ is worshipping together in the same physical space.

The suit alleges violations of the 1st Amendment, the 5th Amendment and RFRA. Washington Post reports on the lawsuit.

8th Circuit Hears Oral Arguments On Qualified Immunity In Suit By Christian Student Group

 The U.S. 8sth Circuit Court of Appeals yesterday heard oral arguments in Business Leaders in Christ v. University of Iowa. (Audio of full oral arguments.) In the case, an Iowa federal district court granted a permanent injunction to a Christian student group that was denied Registered Student Organization status. The denial was based on the University's Human Rights Policy that prohibits discrimination, among other things, on the basis of sexual orientation. The court concluded that this violated plaintiff's free expression rights. However the court held that individual defendants in the case had qualified immunity in an action for damages against them because "the Court cannot say the constitutional issues were established 'beyond debate.'." (See prior related posting.)

Israel's High Court Says Disciplinary Panel Required For Municipal Rabbi's Comments

 A 3-judge panel of Israel's High Court of Justice ruled yesterday that the country's Chief Rabbinate must convene a disciplinary panel to try Safed's Chief Rabbi Shmuel Eliyahu. Jerusalem Post and Haaretz report on the decision. At issue are a number of statements by Eliyahu critical of Arabs and of the LGBTQ community. Also at issue are political statements by Eliyahu. The judges each wrote about the balance between free speech and limits on what a state-funded municipal rabbi may say. Now, according to Jerusalem Post:

Justice Minister Avi Nissenkorn of the Blue and White Party now needs to request that Chief Rabbi Yitzhak Yosef form a disciplinary panel for Eliyahu.

Yosef needs to form that panel, consisting of a rabbinical court judge or emeritus judge and two municipal chief rabbis, within 30 days. The panel can record a note in Eliyahu’s file, issue him with a warning, reprimand him or dismiss him from his position.

Religion, Law and Justice Ruth Bader Ginsburg-- A Tribute

Justice Ruth Bader Ginsburg's body will lie in repose at the Supreme Court on Wednesday and Thursday of this week (Supreme Court press release), and then will lie in state on Friday at the U.S. Capitol. (NBC News). The Supreme Court courtroom has been draped in black in accordance with Supreme Court custom. According to the Supreme Court's press release announcing her death, a private burial service will take place at Arlington National Cemetery. Here are the statements of other Supreme Court justices on Justice Ginsburg's death.  Justice Breyer began his statement: "I heard of Ruth’s death while I was reciting the Mourner’s Kaddish at the Rosh Hashanah service." Interesting insights into Justice Ginsburg's life are found in an RNS article titled Ruth Bader Ginsburg Was Shaped by Her Minority Faith.

During her 27 years on the Court, Justice Ginsburg authored a number of opinions on church-state and religious liberty issues, including:

• Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, 591 U.S. ___ (2020)- (dissenting opinion).
• Espinoza v. Montana Department of Revenue, 591 U.S. ___ (2020)- (dissenting opinion).
• American Legion v. American Humanist Association, 588 U.S. ___ (2019)- (dissenting opinion).
• Fort Bend County v. Davis, 587 U.S. ___ (2019)- (opinion of the Court).
• Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 584 U.S. __ (2018)- (dissenting opinion).
• Holt v. Hobbs, 574 U.S. 352 (2015)- (concurring opinion).
• Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682 (2014)- (dissenting opinion).
• Christian Legal Soc. Chapter of Univ. of Cal., Hastings College of Law v. Martinez, 561 U.S. 661 (2010)- (opinion of the Court).
• Cutter v. Wilkinson, 544 U.S. 709 (2005)- (opinion of the Court).
• Agostini v. Felton, 521 U.S. 203 (1997)- (dissenting opinion).
• Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753 (1995)- (dissenting opinion).

An interesting liturgical tribute to Justice Ginsburg was developed by Rabbi Marc Katz and Cantor Meredith Greenberg of Temple Ner Tamid, Bloomfield, NJ.

Recent Articles of Interest

 From SSRN:

• Michael Conklin, Andrew Koppelman's Proposal: A Lose-Lose Solution for Religious Liberty and Gay Rights (August 2020).
• Nelson Tebbe & Micah Schwartzman, Re-upping Appeasement: Religious Freedom and Judicial Politics in the 2019 Term, Virginia Public Law and Legal Theory Research Paper No. 2020-68 (2020)).
• Netta Barak Corren, Taking Conflicting Rights Seriously,  (Villanova Law Review, Vol. 65, No. 2, 2020).
• John Ip, The Travel Ban, Judicial Deference, and the Legacy of Korematsu, ((2020) 63 Howard Law Journal 153).
• Leonore Carpenter & Ellie Margolis, One Sequin at a Time: Lessons on State Constitutions and Incremental Change from the Campaign for Marriage Equality, (75 N.Y.U. Ann. Surv. Am. L. 255 (2020)).
• Michael J. Higdon, (In)Formal Marriage Equality, (July 19, 2020).
• Cynthia Conti-Cook, Surveying the Digital Abortion Diary: A Preview of How Anti-Abortion Prosecutors Will Weaponize Commonly-Used Digital Devices As Criminal Evidence Against Pregnant People and Abortion Providers in a Post-Roe America, (University of Baltimore Law Review, Forthcoming).
• Alyssa Bryant & Ezra Young, Transgender Politics: The Civil Rights of Transgender Persons, (Transgender and Gender Diverse Persons: A Handbook for Service Providers, Educators, and Families (Routledge 2019)).
• Ezra Young, Demarginalizing Trans Rights, (Deploying Intersectionality: Legal, Intellectual, and Activist Interventions (Kimberlé Crenshaw et al. eds., New Press 2021, Forthcoming).
• Eza Young, What the Supreme Court Could Have Heard in R.G. & G.R. Harris Funeral Homes v. EEOC and Aimee  Stephens,  (California Law Review Online, 2020).

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

• Ronli Sifris, Tania Penovic & Caroline Henckels, Advancing Reproductive Rights through Legal Reform: The Example of Abortion Clinic Safe Access Zones, (University of New South Wales Law Journal, Vol. 43, No. 3, 2020).
• Kriti Aeron, Triple Talaq – a Battle towards Gender Justice with Reference to Shayara Bano, (March 5, 2019).
• Taiyba Khan, The Citizenship Amendment Act, 2019: A Religion Based Pathway to Indian Citizenship, (April 21, 2020).
• Peter Ottuh & Akpotor Eboh, A Philosophical Assessment of Tithing as a Tool for Tax Avoidance and Evasion in Nigeria, (August 5, 2020).
• Patrick Quirk, Protecting Religious Freedom and Conscience: What Australia Might Learn from Germany, (Fordham International Law Journal, Vol. 43, No. 163, 2019).
• Harsh Mahaseth, The Non-enforcement of Singapore’s Anti-gay Law Is Not a Good ‘Compromise’, (Economic and Political Weekly, Vol. 55, Issue No. 13, 28 Mar, 2020).

From elsewhere:

• Journal of Law & Religion, Vol. 35, Issue 2 (Aug. 2020).

EEOC Sues Over Failure To Accommodate Seventh Day Adventist

The EEOC announced this week that it has filed a Title VII lawsuit against Texas-based Frito-Lay, Inc. for failing to accommodate the religious needs of a Seventh Day Adventist employee working in Florida. The Commission explained:

[A] West Palm Beach Frito-Lay warehouse employee applied for and received a promotion to route sales representative. The employee completed approximately five weeks of training without having to train on Saturdays. However, despite learning he could not work on Saturdays be­cause of his Seventh-day Adventist religious beliefs, Frito-Lay sched­uled him to train on Saturdays and terminated him after he failed to report to training on two consecutive Saturdays.