President Biden Issues Statement On Ash Wednesday

Yesterday President Joe Biden issued a Statement on Ash Wednesday (full text), saying in part:

As we enter into the season of Lent, we know this moment of repentance, reflection, and renewal comes in the midst of a painful winter for our nation and the world.....

We pray for all those who have fallen on hard times and are worried about what morning will bring. Let us find strength in each other and faith that provides us purpose. And let us look with hope and anticipation toward Easter and brighter days ahead.

Canadian Court Refuses To Order Churches To Follow Health Orders Pending Hearing On Constitutionality

In Beaudoin v. British Columbia, (BC Sup. Ct., Feb. 17, 2021), a trial court in the Canadian province of British Columbia refused to issue an interlocutory injunction requiring three churches who are petitioners in the case to comply with COVID-19 public health orders banning in-person religious services in the province. The churches, clergy and another plaintiff filed suit challenging the public health orders as being in violation of the Canadian Charter of Rights and Freedoms. A hearing on this challenge is scheduled for March 1.  Pending that hearing, the government sought immediate injunctions to prevent the churches from continuing to hold in-person services. Refusing to issue the requested injunction, the court said in part:

I am left to wonder what would be achieved by the issuance of an injunction in this case....

When asked, counsel for the respondents said that the respondents accept that the petitioners’ beliefs are deeply held, but in response to my question as to why an injunction was sought, responded that while the petitioners and others like them are not dissuaded from their beliefs and practices by the impugned orders, an order from this Court is more likely to accomplish their compliance.

Given the other remedies available to the respondents, I have reservations that an injunction alone, without enforcement by the B.C. Prosecution Service, would overcome the deeply held beliefs of the petitioners and their devotees.... 

Vancouver Sun reports on the decision.

Jordan's Judicial Council Changes Court System For Small Evangelical Denominations

Religion News Service reports that Jordan's Judicial Council, apparently responding to growing tension between Orthodox Christians and Evangelicals, has issued a memo changing the legal status of some 60 smaller Christian denominations in the country:

In Jordan, the legal system is divided into civil courts, where commercial and criminal cases are heard, and separate religious courts that settle matters of marriage, divorce and child custody according to canon law for the majority-Muslim population and for the 11 recognized Christian communities.

While United Pentecostal and Jehovah’s Witnesses members are allowed their own ecclesiastical courts, legal matters for members of nearly 60 other Protestant churches are heard in civil court, or, for minor matters, work through the court of the Anglican Church, one of the 11 approved denominations.

But on Feb. 5, in response to [Greek Orthodox Archbishop] Atallah’s letter, Judge Mohammad Al Ghazo, who heads Jordan’s Judicial Council, issued a memo disqualifying any Christian without an approved ecclesiastical court from using the civilian courts. Cases would instead be referred to the Council of Church Leaders, a government advisory body.

Evangelicals fear that the change could endanger the validity of past marriages performed in evangelical churches. Orthodox proponents say that the concern is a proliferation of small separate ecclesiastical courts.

Cert. Petition Filed In Ecclesiastical Abstention Case

A petition for certiorari (full text) was filed in the U.S. Supreme Court yesterday in North American Mission Board of the Southern Baptist Convention, Inc. v. McRaney, (cert. filed 2/17/2021). In the case the U.S. 5th Circuit Court of Appeals, by a vote of 9-8, denied en banc review of a panel decision that had refused to invoke the ecclesiastical abstention doctrine in a dispute between the Mission Board and its former executive director. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

Cert Filed In Case On Curricular Treatment of Hinduism

A petition for certiorari (full text) was filed this week in the U.S. Supreme Court in California Parents for the Equalization of Educational Materials v. Torlakson,(cert. filed 2/16/2021). In the case,  the U.S. 9th Circuit Court of Appeals upheld the dismissal of a suit claiming that California's History-Social Science Standards and Framework incorrectly describe Hinduism and treat it negatively in relation to the treatment of other religions. (See prior posting.) The cert petition frames the question presented as:

Whether the Free Exercise Clause permits the government to single out a religion for disfavored treatment so long as it does not “substantially burden” religious exercise.

[Thanks to Glenn Katon for the lead.]

Suit Challenges Disqualification of Ministers Ordained Online As Marriage Officiants

Suit was filed yesterday in a Pennsylvania federal district court seeking to declare unconstitutional the position taken by the Bucks County, Pennsylvania clerk of courts that ministers who were ordained online may not solemnize marriages under Pennsylvania law. Apparently the county takes the position that those ordained online are not clergy of a "regularly established church or congregation", as required by 23 Pa. Cons. Stat. Ann. § 1503. The complaint (full text) in Universal Life Church Monastery Storehouse v. Bobrin, (ED PA, filed 2/16/2021), alleges that this interpretation violates the Free Exercise, Establishment and Equal Protection Clauses, saying in part:

... Defendant has used the powers of her office to discourage ULC Monastery ministers from exercising rights afforded to ministers of other religions. Defendant’s apparent policy of discrimination unconstitutionally prefers certain religions or religious denominations over others and burdens ULC Monastery’s and its ministers’ free exercise of religion. To the extent Defendant is correct that 23 Pa. Cons. Stat. Ann. § 1503 bars ULC Monastery ministers from solemnizing marriages while granting that benefit to ministers of other religious denominations, the statute is unconstitutional.

Universal Life Church issued a press release announcing the filing of the lawsuit.

8th Circuit: Arkansas Anti-Boycott of Israel Law Violates 1st Amendment

In Arkansas Times LP v. Waldrip, (8th Cir., Feb. 12, 2021), the U.S. 8th Circuit Court of Appeals, in a 2-1 decision, struck down an Arkansas' statute requiring businesses that enter contracts with public entities to certify that they will not engage in any boycott of Israel. "Boycott of Israel" is defined in the statute as "engaging in refusals to deal, terminating business activities, or other actions that are intended to limit commercial relations with Israel...." The majority said in part:

Considering the Act as a whole, we conclude that the term “other actions” in the definition of ... “boycott of Israel” encompasses more than “commercial conduct” similar to refusing to deal or terminating business activities. Instead, the Act [also] requires government contractors ... to limit their support and promotion of boycotts of Israel. As such, the Act restricts government contractors’ ability to participate in speech and other protected, boycott-associated activities.... Therefore, the Act imposes a condition on government contractors that implicates their First Amendment rights.

Judge Kobes dissented.  Courthouse News Service reported on the decision.

9th Circuit Rejects Church's Challenge On COVID Restrictions

In Gateway City Church v. Newsom, (9th Cir., Feb. 12, 2021), the U.S. 9th Circuit Court of Appeals upheld a Santa Clara County, California COVID-19 Order that prohibits all indoor gatherings, including worship services. The court said in part:

The challenged ban on indoor “gatherings” ... applies equally to all indoor gatherings of any kind or type, whether public or private, religious or secular. The Directive, which appears to affect far more activities than most other jurisdictions’ health measures, does not “single out houses of worship” for worse treatment than secular activities.

Santa Clara County issued a press release announcing the decision.

Exchange of Apache Sacred Land Does Not Violate RFRA or Free Exercise Clause

 In Apache Stronghold v. United States, (D AZ, Feb. 12, 2021), an Arizona federal district court refused to issue a preliminary injunction to prevent a land exchange between the federal government and two foreign mining companies known as Resolution Copper. The land to be conveyed to Resolution Copper contains a sacred Apache ceremonial ground know as Oak Flat. In addition to rejecting treaty claims, the court concluded that plaintiff has not shown a likelihood of prevailing on its claims under the Free Exercise clause and RFRA, saying in part:

Plaintiff has not been deprived a government benefit, nor has it been coerced into violating their religious beliefs. The Court does not dispute, nor can it, that the Government's mining plans ... will have a devastating effect on the Apache people's religious practices.... However, Oak Flat does not provide the type of "benefit" required under RFRA jurisprudence....

The Southeast Arizona Land Exchange and Conservation Act is facially neutral, and Plaintiff has provided no evidence of any discriminatory intent behind its passage....

Apache Stronghold issued a press release announcing the decision.

New Arkansas Law Limits COVID Restrictions On Religious Organizations

On Feb. 9, Arkansas Act 94 (Religion Is Essential Act) (full text) was signed by Gov. Asa Hutchinson and immediately went into effect. The new law provides that the Governor nor the State Board of Health

shall not prohibit or limit a religious organization from continuing to operate or engage in religious services during a disaster emergency under this subchapter.

The law however does permit requiring: 

religious organizations to comply with neutral health, safety, or occupancy requirements issued under state or federal law that are applicable to all organizations and businesses.

The law goes on to provide, however, that such requirements may not impose a substantial burden on a religious organization unless it is shown to be essential to further a compelling governmental interest and is the least restrictive means of doing so.

"Religious organizations" are broadly defined in the new law to include houses of worship, religious educational institutions and religious leaders, among others.

Another Church Seeks Supreme Court's Intervention On COVID-19 Restrictions

Continuing the flow of cases asking the U.S. Supreme Court to intervene to allow churches to to hold worship services at greater capacity than allowed by state COVID-19 orders, an emergency application for an injunction or summary reversal (full text) was filed with the Supreme Court on Feb. 11 in Calvary Chapel of Bangor v. Mills. In the case, the U.S. 1st Circuit Court of Appeals held that the district court's denial of a temporary restraining order was not appealable before the district court rules on the church's preliminary injunction request. (See prior posting.) Liberty Counsel issued a press release announcing the filing.

Discrimination Claim By Muslim Employee of Sheriff's Office Is Dismissed

In Domino v. County of Essex, (D NJ, Feb. 11, 2021), a New Jersey federal district court dismissed, without prejudice, a religious discrimination and hostile work environment claim brought by an African American Muslim male who was employed by the Bureau of Criminal Identification in the Essex County (NJ) Sheriff's Office. Plaintiff complained that a series of actions by the sheriff that variously ordered no beards, limited the length of beards and required documentation from his Imam of plaintiff's religious observance infringed his rights under various statutes and constitutional provisions. The court dismissed plaintiff's Title VII claim for failure to exhaust administrative remedies. It dismissed his equal protection claim for failure to allege a discriminatory purpose. It also dismissed claims under New Jersey civil rights laws.

Recent Articles of Interest

 From SSRN:

• Harry G. Hutchison, The Collision of Social Justice Perfectionism, Rival Faiths, and Ordered Liberty: Review Essay: Mark T. Mitchell, The Unholy Marriage that Spawned America's Social Justice Warriors, (January 25, 2021).
• Tory L. Lucas, Greed and the Seven Deadly Sins: Treacherous for the Soul and Legal Ethics, (Regent University Law Review, Vol. 33, No. 1, 2020-2021).
• Gary J. Simson, Constitutional Law and the Culture Wars: When Religious Liberty and the Law Conflict, Which Should Prevail?,  (Freedom and Society: Essays on Autonomy, Identity, and Political Freedom; Yi Deng, Creighton Rosental, Robert Scott, and Rosalind Simson eds., Forthcoming Spring 2021).
• Taylor Holley, Auditing Scientology: Reexamining the Church's 501(c)(3) Tax Exemption Eligibility, (February 1, 2021).
• Erez Aloni, First Comes Marriage, Then Comes Baby, Then Comes What Exactly?, (15 National Taiwan University Law Review (2020)).
• MaryScott Polk, What to Do With Leftovers: Collecting Earmarked Donations Through Mobile Payment Apps, (January 24, 2021).
• Leora Bilsky, The Virtues of Comparing: Between Early Jewish Restitution Campaign and Contemporary Post-Colonial Restitution Debate, (Art Antiquity and Law, Forthcoming 2021).

From SSRN (Commonwealth Nations):

• Merilin Jacob, The Dirty Play of Politics on the Citizenship Amendment Act, (December 4, 2020).
• Howard Kislowicz, Law, Faith, and Canada’s Unwritten Constitution, (25.1 Review of Constitutional Studies (Forthcoming)).
• Scott Stephenson, Dignity and the Australian Constitution, (2020) 42 Sydney Law Review 369–94.

From SSRN (Islamic Law):

• Hassan Ahmad, Re-Assessing the Evidentiary Threshold for Zinā’ in Islamic Criminal Law: A De Facto Exemption Proposal, (Muslim World J Hum Rts (2021 Forthcoming)).
• Drishti Suri, Parties Inspired by Islam, Discursive Practices and Democracy - a Re-evaluation of the FIS (October 11, 2020).
• Edana Richardson & Simon O'Neill, Islamic Mortgage-Alternatives in Ireland: A Comparative Reflection on a Decade of Consumer Appetite in the Face of Legislative Uncertainty, ((2020) 4 Conveyancer and Property Lawyer 275-295).
• Fajari Muhammadin, Limits of Deception in Islamic Laws of War: The Case of Civilian Disguises in Suicide Attacks, (Ulul Albab: Jurnal Studi dan Pemikiran Hukum Islam, Vol. 4 No. 1 (2020)).
• Tal Mimran, The Islamic State of Horror – Who is Responsible for Atrocities Committed in the Territory of the Self-Declared Islamic State (Daesh)?, (Indiana International & Comparative Law Review, Forthcoming).

From SSRN (Jewish Law):

• Levi Cooper, Jewish Law in the Beit Midrash of Hasidism, (Diné Israel 34 (2020), 51-110).
• Elimelech Westreich & Avishalom Westreich, Jewish Law: Marriage, (Routledge Handbook of Religious Law (2019)).

Biden Re-Establishes White House Faith-Based Partnerships Office

Yesterday President Joseph Biden issued an Executive Order (full text) once again establishing a White House Office of Faith-Based and Neighborhood Partnerships. The accompanying Fact Sheet says in part:

The Partnerships Office’s initial work will include collaborating with civil society to: address the COVID-19 pandemic and boost economic recovery; combat systemic racism; increase opportunity and mobility for historically disadvantaged communities; and strengthen pluralism. The office will also support agency partnerships that advance the United States Government’s diplomatic, international development, and humanitarian work around the world....

Fundamental to these goals is respecting our cherished guarantees of church-state separation and freedom for people of all faiths and none.... The Partnerships Office, for example, will not prefer one faith over another or favor religious over secular organizations. Instead, it will work with every willing partner to promote the common good, including those who have differences with the Administration.

According to the Fact Sheet, Melissa Rogers will serve as Executive Director of the Faith Based and Neighborhood Partnerships Office, and as Senior Director for Faith and Public Policy in the White House Domestic Policy Council. Josh Dickson will serve as the Office's Deputy Director.

Humanist Organization Lacks Standing To Challenge Texas Ban On Secular Marriage Celebrants

 In Center for Inquiry, Inc. v. Warren, (5th Cir., Feb. 10, 2021), the U.S. 5th Circuit Court of Appeals dismissed for lack of standing a suit by a secular humanist organization challenging as an Establishment Clause violation Texas law that refuses to allow secular celebrants to conduct marriage ceremonies. The court held that plaintiffs are asking for relief that does not remedy their injury in full, explaining:

The appellants are seeking relief that would essentially compel ... [the] Dallas County Clerk, to record marriages conducted by secular celebrants such as themselves. However, even if such relief were hypothetically granted, it would not fully redress the injuries for which the appellants bring suit. Here, the appellants’ injuries relate to the barrier to legally solemnize marriages. But even if they prevail in this litigation, relief would be incomplete because the appellants would still be subject to criminal prosecution. In other words, the barrier to legally solemnizing marriages would nevertheless remain.

No Injunction Against Sound Ordinance Because City Disclaims Enforcement Pending Revision

In Abolish Abortion Oregon v. City of Grants Pass, (D OR, Feb. 12, 2021), an Oregon federal district court refused to issue a preliminary injunction against enforcement of the city's Sound Ordinance sought by an organization of Christian evangelists and anti-abortion advocates. Plaintiffs contended that enforcement violates their free speech and free exercise rights. The city, however, has conceded that the current Sound Ordinance is probably unconstitutional and says it is revising the Ordinance. It has also said it will not enforce the Ordinance during the revision process.

Court Says Quebec Worship Limits Apply To Capacity for Each Room

Canadian Lawyer reports on a decision interpreting Quebec's COVID-19 limits on indoor worship services:

Current restrictions on indoor religious gatherings in Montreal means that a maximum of 10 people may congregate in each room of a house of worship, as long as each has a separate entrance or access to the street, the Quebec Superior Court of Justice has ruled in interpreting public health regulations during COVID-19.

Superior Court Justice Chantal Masse’s decision on Feb. 5 ended the legal battle of the Quebec Council of Hasidic Jews and several Jewish congregations, which successfully argued the 10-person limit per synagogue was unacceptable and violated freedom of religion....

Supreme Court Allows Execution Only If Clergy of Choice Allowed In Execution Chamber

As reported by SCOTUSblog, in a jigsaw puzzle-like set of opinions and orders the U.S. Supreme Court last night just before midnight Eastern Time allowed Alabama to move ahead with the execution of convicted murderer Willie Smith-- but only if the state allowed him to have the Pastor of his choice with him in the execution chamber. In Dunn v. Smith, (US Sup. Ct., Feb. 11, 2021), a majority of the Court refused to lift an injunction issued the day before by the 11th Circuit (see prior posting) holding that Alabama's exclusion of all clergy from the execution chamber violates RLUIPA. The order refusing to vacate the 11th Circuit's injunction was unsigned. However Justice Kagan wrote a concurring opinion, joined by Justices Breyer, Sotomayor and Barrett, saying that RLUIPA "sets a high bar for Alabama to clear." They added:

Prison security is, of course, a compelling state interest. But past practice, in Alabama and elsewhere, shows that a prison may ensure security without barring all clergy members from the execution chamber. Until two years ago, Alabama required the presence of a prison chaplain at an inmate’s side. (It gave up the practice only when this Court barred States from providing spiritual advisors of just one faith.) Still more relevant, other jurisdictions have allowed clergy members with no connection to the government to attend an inmate’s execution.... , dissenting from denial of application to vacate injunction). Nowhere, as far as I can tell, has the presence of a clergy member (whether state-appointed or independent) disturbed an execution.

Justice Kavanaugh, in an opinion joined by Chief Justice Roberts, dissented, saying in part:

Because the State’s policy is non-discriminatory and, in my view, serves the State’s compelling interests in ensuring the safety, security, and solemnity of the execution room, I would have granted the State’s application to vacate the injunction.

Justice Thomas indicated (without joining the dissenting opinion) that he would have vacated the 11th Circuit's injunction.   Neither Justice Alito or Gorsuch indicated how they voted, but at least one of them would have had to agree with the 11th Circuit for the majority vote which the Court's unsigned Order commanded.

But this did not end the matter because there was also another outstanding stay of execution in the case which the 11th Circuit had granted on Feb. 10 in order to consider a different challenge to the execution. The Supreme Court yesterday vacated that stay (Order List) so that the execution, with the Pastor present, could move ahead.

As reported by SCOTUSblog, in the end the execution was not carried out because the execution warrant expired a midnight Central Time, only one hour after the Supreme Court orders were handed down.

High School Soccer Rules Changed To Allow Religious Headwear

The National Federation of State High School Associations announced yesterday that it has amended it Soccer Rules Book to allow players to wear religious headwear without prior approval by the respective state association.

11th Circuit: Pastor Should Be Allowed In Execution Chamber

In Smith v. Commissioner, Alabama Department of Corrections, (11t Cir., Feb. 10, 2021), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, reversed an Alabama district court's denial of an injunction to an inmate seeking to have his pastor present in the execution chamber with him. Prison rules allow only members of the execution team and certain medical personnel to be present. Focusing on RLUIPA, the majority said in part:

Although it correctly found Smith had a sincere belief that Pastor Wiley should be present in the execution chamber, the court erred by finding Smith’s exercise of that belief was not substantially burdened simply because Smith expressed a “preference” rather than prove his belief was fundamental to his religion. The court also improperly relied on alternative ways that Smith could practice his religion, including that Smith can visit and pray with Pastor Wiley leading up to his execution and Pastor Wiley can observe the execution from the viewing room.

The majority went on to conclude that while the state has a compelling interest in prison security, its policy is not the least restrictive means of achieving that interest.  It could, as does the federal prison system, require the prisoner to designate his spiritual advisor as soon as an execution date is set so that the state can conduct a background check.

Judge Jordan dissented, saying in part:

Whether the district court got RLUIPA’s least restrictive means requirement right or wrong, I do not believe that its decision constitutes an abuse of discretion.