Hypothetical Religious Objections On LGBTQ Issues Cannot Disqualify Foster Parents

In Blais v. Hunter, (ED WA, Oct. 8, 2020), a Washington federal district court held that the Washington Department of Children, Youth and Families cannot use its policy to protect LGBTQ+ foster children as the sole determining factor in rejecting a foster family that expresses sincere religious beliefs that would preclude them from supporting gender transition in hypothetical future situation.  Plaintiffs in the case were a Seventh Day Adventist family that wanted to care for their great-granddaughter who might be removed from her home. The court concluded that the Department’s policies “operate as a religious gerrymander and are thus not neutral as applied to the Blaises and others similarly situated.” [Thanks to Eugene Volokh via Religionlaw for the lead.]

Seminary May Expel Students For Entering Same-Sex Marriages

In Maxon v. Fuller Theological Seminary, (CD CA, Oct. 7, 2020), a California federal district court held that the Religious Organization Exemption in Title IX applies to a seminary controlled by its own board of directors rather than by an outside religious organization. Thus, while Title IX was interpreted by the court to include a ban on discrimination on the basis gender stereotypes, the exemption allowed it to expel two students because they had entered same-sex marriages. Washington Times reports on the decision.

Supreme Court Sends Case On Medical Abortion Access Back To District Court

In Food and Drug Administration v. American College of Obstetricians and Gynecologists, (Sup. Ct., Oct. 8, 2020), the U.S. Supreme Court decided to hold in abeyance pending further District Court review the FDA's motion to stay an injunction that had been issued against it.  In the case, 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. The 4th Circuit refused to stay the injunction pending appeal. (See prior posting.) The Supreme Court said: 

The Government argues that, at a minimum, the injunction is overly broad in scope, given that it applies nationwide and for an indefinite duration regardless of the improving conditions in any individual State. Without indicating this Court’s views on the merits of the District Court’s order or injunction, a more comprehensive record would aid this Court’s review. The Court will therefore hold the Government’s application in abeyance to permit the District Court to promptly consider a motion by the Government to dissolve, modify, or stay the injunction, including on the ground that relevant circumstances have changed. ...  The District Court should rule within 40 days of receiving the Government’s submission.

Justice Alito, joined by Justice Thomas, dissented, saying in part:

In response to the pandemic, state and local officials have imposed unprecedented restrictions on personal liberty, including severe limitations on First Amendment rights. Officials have drastically limited speech, banning or restricting public speeches, lectures, meetings, and rallies. The free exercise of religion also has suffered previously unimaginable restraints, and this Court has stood by while that has occurred.

SCOTUSblog reports on the decision.

Another Religious Challenge To California's COVID-19 Orders

 In a suit filed late last month, a Catholic priest has challenged California Governor Gavin Newsom's COVID-19 emergency orders.  the 77-page complaint (full text) in Burfitt v. Newsom, (CA Super. Ct., filed 9/29/2020) charges that the Governor's orders violate various provisions of the California state constitution, including free exercise, equal protection, liberty of speech and equal protection.  Thomas More Society issued a press release announcing the filing of the lawsuit.

Church Says Eminent Domain Proceeding Violates It Religious Freedom Rights

 In Duncanville, Texas, the city has filed a condemnation petition seeking to take land owned by the Canaan Baptist Church in order to build a new fire station.  The property, which currently has no buildings on it, was acquired by the church in 2002 with plans to eventually build church buildings on it. In the meantime it is used for various outdoor church events by the 125-member, largely African-American church.  On Wednesday the church filed a motion seeking dismissal of the city's eminent domain proceedings.  The motion (full text) in City of Duncanville, Texas v. Canaan Baptist Church, (TX County Ct., filed 10/7/2020) contends that the condemnation proceedings violate the Texas Religious Freedom Restoration Act and the federal RLUIPA. First Liberty issued a press release announcing the filing of the lawsuit.

Catholic and Jewish Organizations Sue New York Governor Over New COVID-19 Restrictions

On Tuesday of this week, New York's Governor Andrew Cuomo announced new restrictions in spots in which clusters of COVD-19 cases have broken out. Areas include parts of Brooklyn and Queens and parts of Broome, Orange and Rockland Counties. The restrictions target mass gatherings and houses of worship, as well as businesses and schools.  In response, two important religious entities-- one Catholic and one Jewish-- have filed separate suits challenging the new Order.

The complaint (full text) in Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (ED NY, filed 10/8/2020) reads in part:

The governor now proposes to limit in-person attendance at all "Houses of Worship" to the lesser of 10 people or 25% of church capacity in certain designated geographical areas, and to the lesser of 25 people or 33% of church capacity in others. As applied to the Diocese, whose impacted churches overwhelmingly seat upwards of 500 to 1000 parishioners, the percentage caps ... are rendered wholly illusory, and thus the churches will be placed in the untenable position of limiting attendance at Sunday mass and other fundamental Catholic services such as baptisms, weddings and funerals, to just 10 worshippers in designated "red" zones or just 25 worshippers in designated "orange" zones. Meanwhile, all other essential businesses can remain open without any capacity limitations whatsoever....

ABC7 News reports on the lawsuit. 

The complaint (full text) in Agudath Israel of America v. Cuomo, (ED NY, filed 10/8/2020) alleges in part:

5. Defendant’s Executive Order and the restrictions it contains will disrupt the religious observance of tens of thousands of Orthodox Jews in New York State, depriving them of their religious worship and holiday observance. The Executive Order requires enforcement of its restrictions to begin on Friday, October 9, which is Hoshanah Rabbah, the first of these three holidays.

6. Defendant has imposed these onerous and discriminatory new restrictions despite the fact that even he concedes he has not enforced the existing restrictions on houses of worship that already impose capacity limits and health requirements. Plaintiffs have completely complied with these rules, and Defendant does not contend otherwise.

Courthouse News Service reports on the suit.

UPDATE: Temporary restraining orders were denied in both cases on Oct. 9. See Roman Catholic Diocese of Brooklyn v. Cuomo, 2020 U.S. Dist. LEXIS 188459.

USCIRF Issues Fact Sheets On Rohingya Refugees and Ritual Slaughter Laws

The U.S. Commission on International Religious Freedom has issued two Factsheets of interest this week:

• Factsheet on Rohingya Refugees in Southeast Asia
  
• Factsheet on Ritual Slaughter Laws in Europe

South Carolina Supreme Court Invalidates Emergency School Aid Program

 In Adams v. McMaster, (SC Sup. Ct., Oct. 7, 2020), the South Carolina Supreme Court held that South Carolina Governor Henry McMaster's allocation of $32 million in federal emergency education funding to create one-time grants for students to attend private and religious K-12 schools violates the South Carolina Constitution.  The court emphasized that the federal funds awarded to South Carolina are received by the State Treasury and distributed through the Treasury directly to private schools.  The court concluded:

We hold the Governor's decision constitutes the use of public funds for the direct benefit of private educational institutions within the meaning of, and prohibited by, Article XI, Section 4 of the South Carolina Constitution.

Island Packet reports on the decision.

Egyptian Court Bans Pilgrimages To Rabbi's Grave

 Al-Monitor reports that on Sept. 26, Egypt's Supreme Administrative Court upheld a lower court ruling banning the annual celebration in Damatyuh village near the city of Damanhur in Beheira governorate of the birth of Rabbi Yaqoub bin Masoud, known as Abu Hasira. The paper reports:

The court, which is the highest administrative court for administrative appeals in Egypt, ordered removing the shrine in which ... Abu Hasira, is buried, from the list of Islamic and Coptic antiquities in Egypt. In addition, it rejected a request to transfer his remains to Israel, which was submitted by Tel Aviv through UNESCO in 2012.

The court based its refusal to transfer the rabbi's remains because Islam respects the divine religions and rejects the exhumation of graves, and because Palestine is an occupied land and legitimizing the Jewishness of the state must be avoided by keeping this shrine on Arab land.

The appeal was filed by the Egyptian government; the previous ruling thus became final and irrevocable.

Before 2011, hundreds of Jews from Morocco, France and Israel made an annual pilgrimage to the rabbi's grave.

New Jersey COVID Limits On Indoor Church Services Are Upheld

In Robinson v. Murphy, 2020 U.S. Dist. LEXIS 185070 ( NJ, Oct. 2, 2020), a New Jersey federal district court refused to issue a preliminary injunction in a suit challenging COVID-19 Orders of the governor of New Jersey. The Orders limit the permitted number of worshipers at indoor religious services and require masks at services. Rejecting free exercise challenges, the court said in part:

[T]he challenged measures are subject to rational basis review because they are generally applicable and neutral laws that burden secular and religious activity alike. The State's policies are designed to combat the spread of COVID-19 in New Jersey given the current understanding of the virus which the Court finds is undoubtedly a legitimate governmental interest....

Furthermore, ... the laws are not substantially underinclusive requiring the application of strict scrutiny, as the indoor gatherings restrictions contain similar exceptions for religious purposes and for secular purposes, indoor religious gatherings have higher maximum capacities than secular indoor gatherings, and, as Plaintiffs themselves acknowledge, there are both feasibility and religious purpose exceptions included in the mask requirements.

Plaintiffs, a priest and a rabbi, had also argued that the orders violate the Establishment Clause:

Plaintiffs assert that the orders violate the Establishment Clause because Defendants are attempting to dictate the precise manner in which Plaintiffs and their congregants worship. They further contend that "by mandating crude and medically useless face coverings," Defendants have made it difficult to say mass or teach the Jewish faith.... The Court finds that the indoor gatherings restrictions and mask requirements pass constitutional muster.

The court, in addition, rejected free speech, equal protection and due process challenges.

Dakota Access Pipeline Protesters Can Move Ahead On Free Speech, But Not Free Exercise, Claims

In Thunderhawk v. County of Morton, North Dakota, (D ND, Sept. 1, 2020), plaintiffs challenged on numerous constitutional grounds North Dakota's closure of Highway 1806 which was used by the Standing Rock Sioux Tribe and thousands of its supporters to access campsites set up to protest construction of the Dakota Access Pipeline. In a 101-page opinion (which has just been widely made available) the court allowed plaintiffs to move ahead with their claims that the closure prevented them from engaging in protected speech and amounted to a prior restraint on speech. The court however rejected plaintiffs' free exercise claims, saying in part:

While the Plaintiffs provided facts in the Amended Complaint to suggest the Defendants’ actions in closing the road may not meet strict or intermediate scrutiny for their free speech claims, they have failed to allege facts suggesting the road closure may not meet rational basis as it relates to their free exercise claim. Because the Plaintiffs have failed to meet this burden, and as a result of neither Smith exceptions applying in this case to heighten the standard to strict scrutiny, Claim II is dismissed.

The court also rejected a variety of other constitutional challenges including right to travel and commerce clause claims. Turtle Talk blog has links to all the pleadings in the case.

Transcript and Audio Are Available of Supreme Court Arguments In RFRA Damages Case

This morning the U.S. Supreme Court heard oral arguments in Tanzin v. Tanvir. (Transcript of oral arguments) (Audio of oral arguments.)  In the case, a 3-judge panel of the 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants. (See prior posting). The SCOTUSblog case page has links to the briefs of the parties, amicus briefs and other filings in the case.

UPDATE: Deseret News reports on the oral arguments.

Court Enjoins NY Ban On Adoption Agencies Discriminating Against Gay Or Unmarried Couples

In New Hope Family Services, Inc. v. Poole, (ND NY, Oct. 5, 2020), a New York federal district court, hearing a case on remand from the Second Circuit (see prior posting), issued a preliminary injunction against enforcement of a regulation of New York's Office of Children and Family Services. 18 NYCRR §421.3 bars discrimination based on sexual orientation or marital status in furnishing of adoption services. The regulation was challenged by a Christian adoption agency that refuses to place children with unmarried or same-sex couples.  The court said in part:

[T]he totality of the evidence indicates that section 421.3(d), as promulgated and enforced by OCFS, is not neutral and appears to be based on some hostility towards New Hope's religious beliefs. In light of the Second Circuit's all but explicit direction, the Court finds that the totality of the evidence weighs in favor of a finding of hostility. In finding hostility, the Court relies on a number of factors that the Circuit noted in its decision.....

The Court finds that by attempting to force New Hope to say that it is in a child's best interests to be placed with an unmarried or same sex couple, despite New Hope's sincere disagreement with that statement, OCFS is attempting to compel speech. Although OCFS argues that New Hope is not compelled to speak because there is an alternative, closure is surely a harsh alternative for New Hope and, as discussed below, it is not the most narrowly tailored means of advancing the state's compelling interests....

Washington Times reports on the decision.

Satanic Temple Sues Ad Agency For Refusing Abortion Billboards [UPDATED]

The Satanic Temple ("TST") announced last week that it has filed suit against Lamar Billboard Company for religious discrimination and breach of contract after the company refused to put up billboards promoting The Satanic Temple's "religious abortion ritual."  TST said in part:

Sincere performance of this ritual exempts members from complying with many state regulations, such as mandatory waiting periods and compulsory counseling, that are not medically necessary and violate TST's religious beliefs.

TST wanted to place billboards near eight crisis pregnancy centers in Arkansas and Louisiana. TST puzzlingly said:

TST claims that Lamar's actions violate the Accounting and Corporate Regulatory Authority's (ACRA's) nationally-applicable laws that prohibit religious discrimination.

ACRA appears to be an agency of the government of Singapore.

UPDATE: Here is the full text of the complaint in The Satanic Temple, Inc. v. Lamar Advertising of Louisiana, LLC, (AR Cir. Ct., filed 9/27/2020).  The complaint alleges, among other things, violation of the Arkansas Civil Rights Act, abbreviated ACRA. Whoever wrote TST's press release apparently Googled ACRA and came up with Accounting and Corporate Regulatory Authority. [Thanks to Eugene Volokh via Religionlaw for access to the complaint.]

Cert. Denied In Appeal By Kim Davis Who Refused To Issue Same-Sex Marriage Licenses

The U.S. Supreme Court today denied certiorari in Davis v. Ermold, the case involving former Kentucky county clerk Kim Davis who refused on religious grounds to issue marriage licenses to same-sex couples.  Justice Thomas, joined by Justice Alito, concurred in the denial of review, but issued a four page statement critical of the Court's same-sex marriage precedent. (Order List, scroll to page 55.) In the case, the U.S. 6th Circuit Court of Appeals held that Davis may be sued in her individual capacity and is not entitled to qualified immunity. (See prior posting). Justice Thomas wrote in part:

In Obergefell v. Hodges ... the Court read a right to same-sex marriage into the Fourteenth Amendment, even though that right is found nowhere in the text. Several Members of the Court noted that the Court’s decision would threaten the religious liberty of the many Americans who believe that marriage is a sacred institution between one man and one woman. If the States had been allowed to resolve this question through legislation, they could have included accommodations for those who hold these religious beliefs.... The Court, however, bypassed that democratic process. Worse still, though it briefly acknowledged that those with sincerely held religious objections to same-sex marriage are often “decent and honorable,” ... the Court went on to suggest that those beliefs espoused a bigoted worldview....

The Hill reports on the case.

Recent Articles of Interest

From SSRN:

• Paul Horwitz, A Few Grains of Incense: Law, Religion, and Politics from the Perspective of the "Christian" and "Pagan" Dispensations,  (Journal of Catholic Legal Studies, forthcoming).
• Nabeela Siddiqui, On Crossroads with Constitutional Morality: The (Un)tamed ERP Test, (August 16, 2020).
• Beatrice Jessie Hill, The Geography of Abortion Rights,  (Georgetown Law Journal, (forthcoming, 2021)).
• Shahbaz Ahmad Cheema, Distribution of Inheritance under Islamic Law: An Appraisal of Online Inheritance Calculators, (August 16, 2020).

From SmartCILP:

• Patricia M. Muhammad, The Trans-Atlantic Slave Trade: European Slaving Corporations, the Papacy and the Issue of Reparations, 26 Willamette Journal of International Law& Dispute Resolution 173-248 (2019).

Five Cases of Interest Already On Supreme Court's Docket As Term Opens

The U.S. Supreme Court's October Term opens today with five religious liberty-related cases already on the docket from grants of review last term. The cases are:

Tanzin v. Tanvir: Availability of money damages in suits under the Religious Freedom Restoration Act. The suit involves claims by three Muslims who allege that they were placed on the no-fly list as retaliation for their refusal to act as government informants. (See prior posting.) Links to pleadings in the case are at the SCOTUSblog case page. The case is set for argument on Oct. 6.

Fulton v. City of Philadelphia, Pennsylvania: In the case,  the U.S. 3rd Circuit Court of Appeals upheld against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.) Links to pleadings in the case are at the SCOTUSblog case page. The case will be argued on Nov. 4.

Republic of Hungary v. Simon and Federal Republic of Germany v. Philipp: Whether claims under the Foreign Sovereign Immunities Act may be brought in these cases of taking of Jewish property during World War II.  (SCOTUS blog case pages: Simon,   Philipp. The cases will be argued Dec. 7.

Uzuegbunam v. Preczewski: Challenge to Georgia Gwinnett College's speech policies that led to a student being stopped from distributing religious literature on campus. (See prior posting.) (SCOTUSbog case page.) Argument date is not yet set.

The Court may announce additional grants of review later today.

9th Circuit Upholds California's COVID Restrictions On Religious Services

 In Harvest Rock Church, Inc. v. Newsom, (9th Cir., Oct. 1, 2020), the U.S. 9th Circuit Court of Appeals in a 2-1 decision refused to issue a preliminary injunction against Governor Gavin Newsom’s COVID-19 Orders that restrict in-person worship services. The majority said in part: 

The evidence that was before the district court does not support Harvest Rock’s arguments that the Orders accord comparable secular activity more favorable treatment than religious activity. The Orders apply the same restrictions to worship services as they do to other indoor congregate events, such as lectures and movie theaters....

Harvest Rock also contends that the Governor failed to provide a rationale for the more lenient treatment of certain secular activities, such as shopping in a large store. However, the Governor offered the declaration of an expert, Dr. James Watt, in support of the claim that the risk of COVID-19 is elevated in indoor congregate activities, including in-person worship services.

Judge O'Scannlain dissented, saying in part:

There is no doubt that California’s COVID-19 scheme ... imposes direct and severe burdens on religious practice within the State. And where a State imposes such burdens through measures that are not “neutral and of general applicability,” its actions must survive strict scrutiny.... Because California’s COVID-19 regulations patently disfavor religious practice when compared to analogous secular activities, I believe that the church is quite likely indeed to succeed on the merits of its challenge to such regulations.

Los Angeles Times reports on the decision.

Two Catholic Dioceses File For Chapter 11 Bankruptcy Reorganzation

In the face of sex abuse lawsuits filed after states enacted legislation reviving previously time-barred claims, on Oct. 1 two more Catholic dioceses filed for bankruptcy reorganization under Chapter 11. 

The Diocese of Rockville Centre, New York (covering Long Island) issued a press release and a letter from Bishop John Barres. The letter said in part:

[I]n the year since the passage of the Child Victims Act, more than 200 lawsuits alleging sexual abuse have been filed against the Diocese of Rockville Centre. What became clear is that the Diocese could not continue to carry out its spiritual, charitable and educational missions while also having to shoulder the increasingly heavy burden of litigation expenses associated with these cases.

Filing for Chapter 11, we believe, is the only way for the Diocese to ensure a fair and equitable outcome for everyone involved.... 

During this period of restructuring, most Diocesan operations and ministries will continue without interruption.... 

Since the parishes and schools of the Diocese of Rockville Centre are separate legal entities, they are not included in this Chapter 11 filing. But it is also the case that after Chapter 11, the Diocese will have fewer financial resources to help struggling schools and parishes.

CNN reports on the filing, noting that this is the largest U.S. diocese to file for bankruptcy.

The Diocese of Camden, New Jersey issued a letter from Bishop Dennis Sullivan as well as an FAQ document and a summary of developments. The Bishop's letter reads in part:

The effects of the pandemic, which have curtailed our revenue and deeply impacted our parishioners and neighbors, were further compounded by the over $8 million we have paid out this year through the New Jersey Independent Victims Compensation Program to victims of clergy abuse, money which we have had to borrow. Additionally, the recent repeal of the statute of limitations has resulted in over fifty lawsuits being filed against the diocese involving long-ago claims of abuse. If it were just the pandemic, or just the costs of the Victims Compensation Program, we could likely weather the financial impact; however, the combination of these factors has made that impracticable. Because of this, today I announce that the Diocese of Camden is filing for reorganization under Chapter 11 of the United States Bankruptcy Code.

Bloomberg News reports on the filing.

Secretary Pompeo Speaks At Vatican Conference On Defending Religious Freedom

Earlier this week (Sept. 30), Secretary of State Mike Pompeo spoke at the U.S. Embassy to the Vatican at the "Holy See Symposium on Advancing and Defending Religious Freedom Through Diplomacy." His speech (full text and video) was titled Moral Witness and Religious Freedom. He said in part:

It was important for me to attend this year, because the mission of defending human dignity – and religious freedom in particular – remains at the core of American foreign policy.

That’s because it’s at the heart of the American experiment.  Our founders regarded religious freedom as an absolutely essential right of mankind and central to our founding....

But sadly, authoritarian regimes, terrorists, and even secularists, free societies are – in their different ways – trampling religious freedom all around the world.

Vast swathes of humanity live in countries where religious freedom is restricted, from places like Iran, to Nigeria, and to Cuba, and beyond....

Nowhere, however – nowhere is religious freedom under assault more than it is inside of China today.  That’s because, as with all communist regimes, the Chinese Communist Party deems itself the ultimate moral authority.