Supreme Court Denies Cert. In Ecclesiastical Abstention Case

The U.S. Supreme Court today denied review in North American Mission Board v. McRaney, (Docket No. 20-1158, certiorari denied 6/28/2021). (Order List.) 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.)

Recent Articles of Interest

From SSRN:

• William Leathers, Tandon in Light of Lukumi, and Smith in Light of Them Both: Value Judgments, Levels of Generality, and the General Applicability Standard, (June 9, 2021).
• Marc Spindelman, Bostock's Paradox: Textualism, Legal Justice, and the Constitution, (69 Buffalo Law Review 553 (2021)).

From Elsewhere:

• Symposium: Is This a Christian Nation?, Roger Williams University Law Review, Vol. 26, No. 2 (Spring 2021).

NY Governor Signs Gender Recognition Act

Yesterday, New York Governor Andrew Cuomo signed the Gender Recognition Act (full text of legislation).  The press release announcing the signing summarized the legislation:

The legislation (S.4402-B/A.5465-D) allows New Yorkers to use "X" as a non-binary sex designation on New York State driver's licenses. It also ensures that New Yorkers will be able to have their gender identity on official documents and provides protections to reduce discrimination against nonbinary and transgender New Yorkers by permitting name change and sex designation changes to be sealed more easily. Finally, the legislation will provide New Yorkers the ability to amend their birth certificates and use a designation of mother, father, or parent for the first time.

Random COVID Screening In Parochial Schools Not An Establishment Clause Violation

In In re King v. Board of Education of the City School District of the City of New York, (App. Div., June 24, 2021), a New York appellate court upheld randomized in-school Covid-19 screening tests for students in parochial and private schools. The court said in part:

We reject respondents' contention that section 912 must be construed as permitting only health screening tests which primarily benefit the child, so as to avoid running afoul of the Establishment Clause. Respondents do not explain how randomized in-school Covid-19 screening tests would have "a primary effect that advances religion," the touchstone of the Establishment Clause.

Cockfighting Ban Does Not Violate Establishment Clause

 In Hinds v. State of Texas,(TX App., June 24, 2021), a Texas state appellate court rejected petitioner's argument that the state's ban on cockfighting and on training animals for cockfighting violates the Establishment Clause. Petitioner, who was convicted of violating Texas Penal Code §42.105, according to the court, argued that:

paganism is a “nature worshiping religion” and that “animal rights laws are a clandestinely designed effort to institute laws respecting the establishment of the Pagan religion and animal worship.

EEOC Complaint Charges Stanford University With Anti-Jewish Hostile Work Environment

 As reported by The Forward, a complaint was filed last week with the EEOC (full text and summary of June 15 complaint) on behalf of a psychiatrist and a clinical social worker at Stanford University  Counseling & Psychological Services division charging that a hostile work environment has been created for Jewish employees.  The complaint alleges in part:

... Stanford University ... has permitted the DEI [Diversity, Equity and Inclusion] program to be perverted so that it accomplishes precisely the opposite of its intended aims....

... [T]he CAPS DEI program has maligned and marginalized Jews on the basis of religion, race and ethnic identity by castigating Jews as white, powerful and privileged members of society who contribute to systemic racism and denying and attempting to erase Jewish ancestral identity. In addition, the DEI program has denigrated the concept of Jewish victimhood and deliberately excluded anti-Semitism from the program’s agenda.... 

The CAPS DEI program... relies upon racial and ethnic stereotyping and scapegoating by describing all Jews as white or white-passing and therefore complicit in anti-Black racism. Jewish staff have been pressured to attend the DEI program’s racially segregated “whiteness accountability” affinity group, which was created for “staff who hold privilege via white identity” and “who are white identified, may be newly grappling with or realizing their white identity, or identify as or are perceived as white presenting or passing (aka seen as white by others even though you hold other identities).”

British Family Court Refuses To Order Circumcision Of Muslim Boy

In M v. F, (EWHC (Fam), June 14, 2021), a British High Court, Family Division judge refused the request by Muslim parents for an order requiring their 21-month old son's guardians to have the boy circumcised.   Because of prior domestic abuse, the boy had been removed at birth from the parents and placed with his maternal aunt and uncle who agreed to respect the child's Muslim heritage. Both the guardians and local welfare officials contend that no decision on circumcision should be made until the boy is older. The court said in part:

I accept that both parents, practising Muslims, earnestly wish the circumcision procedure to take place in order for P to connect with his Muslim heritage. Their views are of considerable importance, and I attach significant weight to them. That said, circumcision alone is not likely to establish or enhance P's sense of cultural or religious identity; this would be best achieved at his age by regular contact with his parents who can, in the best way they consider possible, help him to understand his identity and the faith into which he has been born. When he is older, they can be on hand to help him to reach a decision on whether to be circumcised. My decision has, to some extent, been influenced by the fact that presently neither parent chooses to see P, and neither parent has (contrary to their offer to do so) provided P with age-appropriate books and/or learning materials about Islam....

I have concluded that the decision to circumcise P should be deferred until he is able to make his own choice, once he has the maturity and insight to appreciate the consequences and longer-term effects of the decision which he reaches. I encourage the parents to resume their contact with P, so that not just his Muslim heritage, but also his experience of his wider family and origins, can be better understood and appreciated by him.

Law & Religion UK discusses the decision further.

Indian Court Orders Wide-Ranging Protections For LGBTIA+ Community

In an unusual 107-page opinion earlier this month, a Justice of the Madras High Court in India handed down a wide ranging series of directives to be undertaken by various government agencies to protect the safety of the LGBTQIA+ community, and to eliminate prejudice against them.  In Sushma v. Commissioner of Police, (Madras High Ct., June 7, 2021), Justice Venkatesh set out at length the process he went through to educate himself on the challenges faced by the LGBTQIA+ community. The decision says in part:

[I]t is no longer open to doubt that Article 21 of the Constitution protects and guarantees to all individuals, complete autonomy over the most intimate decisions to their personal life, including their choice of partners. Such choices are protected by Article 21 of the Constitution as the right to life and liberty encompasses the right to sexual autonomy and freedom of expression. That apart, sexual autonomy is an essential aspect of the right of privacy which is another right recognised and protected under Article 21 of the Constitution. LGBTQIA+ persons, like cis persons, are entitled to their privacy and have a right to lead a dignified existence, which includes their choice of sexual orientation, gender identity, gender presentation, gender expression and choice of partner thereof.

The case was brought originally by a lesbian couple seeking protection from their parents, and police with whom their parents had filed missing person complaints, interfering with their relationship. Jurist also reports on the decision.

Louisiana Governor Vetoes Ban On Transgender Women Playing On Girls' Sports Teams

The Louisiana governor's office announced yesterday that Gov. John Bel Edwards has vetoed SB156, the Fairness In Women's Sports Act (full text), saying in part:

The bill ... sought to prevent transgender girls and women from participating on athletic teams or in sporting events designated for girls or women at elementary, secondary and postsecondary schools. Gov. Edwards issued the following statement:

As I have said repeatedly when asked about this bill, discrimination is not a Louisiana value, and this bill was a solution in search of a problem that simply does not exist in Louisiana. Even the author of the bill acknowledged throughout the legislative session that there wasn’t a single case where this was an issue.

Louisiana Illuminator reports on the Governor's action.

Israel's Supreme Court OK's Non-Profit Tax Status For Messianic Congregation

 All Israel News reports that a 3-judge panel of Israel's Supreme Court, sitting as the High Court of Justice, last week ordered the Knesset Finance Committee to grant non-profit status to a Messianic Jewish organization, Yachad, which operates a Messianic Jewish congregation.  Last year, the Finance Committee had rejected non-profit status for the organization. The court said in part:

The decision of the Finance Committee was based on an incorrect assumption, that they had the authority to take into consideration that a nonprofit is engaged in ‘controversial’ activity. Based on the tax authority’s examination, the organization’s missionary activity is not bound to illegal activity. The representatives of the Knesset also confirmed that the decision was value-based, that it is improper to finance a religious organization seeking to convert Jews, even if their activity is legal. … This confirms that the committee overreached in its authority.

New Texas Law Protects Religious Organizations During Future Emergencies

On June 18, Texas Governor Greg Abbott signed HB 525 (full text) which prohibits the state from restricting activities of religious organizations during a state of emergency. It provides in part:

(a) Notwithstanding any other law, a religious organization is an essential business at all times in this state, including during a declared state of disaster, and the organization ’s religious and other related activities are essential activities even if the activities are not listed as essential in an order issued during the disaster.

(b) A governmental entity may not: (1)At any time, including during a declared state of disaster, prohibit a religious organization from engaging in religious and other related activities or continuing to operate in the discharge of the organization ’s foundational faith-based mission and purpose; or

(2) during a declared state of disaster order a religious organization to close or otherwise alter the organization ’s purposes or activities.

The Texan reports on the new law.

Suit Challenges "In God We Trust" On Mississippi License Plates

Suit was filed yesterday in a Mississippi federal district court by atheist and secular humanist plaintiffs challenging the constitutionality of Mississippi including the state seal-- which carries the motto "In God We Trust" -- on its standard license plate. The complaint (full text) in Griggs v. Graham, (SD MI, filed 6/22/2021) alleges violations of both the free speech and free exercise clauses, saying in part:

The Standard Tag ... sends an ideological message endorsed by ... the State of Mississippi.... The Defendant enforces Mississippi statutes and maintains regulations, policies, practices, and customs that require a car owner to display license tags delivering the State of Mississippi’s chosen ideological message....

The statutes, rules, policies, practices, and customs enforced by Defendant ... are not neutral. Not only is “IN GOD WE TRUST” an expressly religious message, but the public statements of Mississippi officials ... demonstrate that hostility toward the Plaintiffs and other Mississippi car owners who lack religious beliefs was a motivation for selecting the current Standard Tag design.

WLOX reports on the lawsuit.

Cert. Filed In "Christian Flag" Case

Yesterday a petition for certiorari (full text) was filed with the U.S. Supreme Court in Shurtleff v. City of Boston. In the case, the U.S. 1st Circuit Court of Appeals upheld Boston's refusal to allow an organization to raise its "Christian flag" on one of the City Hall Plaza flag poles at an event that would also feature short speeches by local clergy. (See prior posting.) Liberty Counsel issued a press release announcing the filing of the petition.

Wisconsin Courts End COVID Suspension of Prison Religious Services

 In Archdiocese of Milwaukee v. Wisconsin Department of Corrections, (WI Cir. Ct., June 21, 2021), a Wisconsin trial court issued a Provisional Writ of Mandamus ordering the Wisconsin prison system to allow Catholic clergy the opportunity, at least once a week, to conduct in-person religious services in state correctional institutions. Access for clergy is mandated by Wis. Stat. 301.33(1). The state had suspended visits beginning in March 2020 to minimize the spread of COVID. Wisconsin Institute for Law & Liberty has additional information on the case. Wisconsin Journal Sentinel reports that the Department of Corrections has extended the order to any religious denomination that wishes to offer in-person services.

EEOC Sues Over Employer's Failure To Accommodate Religious Objection To Finger Printing

 The EEOC announced last week that it has filed suit in a Minnesota federal district court against AscensionPoint Recovery Services alleging religious discrimination:

APRS had requested that its employees be finger-printed as a result of a background check requirement of one of its clients. Shortly after the Christian employee informed APRS that having his fingerprints captured was contrary to his religious practices, APRS fired him.... APRS did so without asking the client whether an exemption was available as a religious accommodation, and despite the fact that alternatives to fingerprinting are available.

Recent Articles of Interest

 From SSRN:

• Dhruv Patel, At the Crossroads of Law, Faith, Religion and History: A Study of the Supreme Court of India’s Judgment in the Ram Janmabhoomi – Babri Masjid Case (January 26, 2021).
• Michael A. Helfand, What Is Jewish Law? A Conceptual View from U.S. Courts, (Oxford Legal Handbook and Jewish Law, 2021).
• Khaled Beydoun, On Sacred Land, (Minnesota Law Review, Vol. 105, 2021).
• Andrew M. Koppelman, In Praise of Evil Thoughts (June 15, 2021). 37 Social Philosophy & Policy 52 (2020).
• Vincent Chetail, Moving towards an Integrated Approach of Refugee Law and Human Rights Law, (The Oxford Handbook of International Refugee Law, C. Costello, M. Foster & J. McAdam (eds), OUP, 2021).
• Zachary D. Kaufman, Testimony to the Belgian Parliament regarding the Islamic State's Genocide Against the Yezidi, (Belgian Parliament; Testimony Regarding Draft Resolution Document 55 1766/001; 2021).

From SmartCILP:

• Michael P. Moreland, Book Review. Law, Love, and Freedom: From the Sacred to the Secular, by Joshua Neoh, 65 American Journal of Jurisprudence 203-208 (2020).
• Hala Khoury-Bisharat & Rinat Kitai-Sangero, The Silence of Jesus and Its Significance for the Accused, 55 Tulsa Law Review 443-468 (2020).

VA Will Offer Gender Confirmation Surgery

AP reports that at a PRIDE event in Orlando on Saturday, Veterans Affairs Secretary Denis McDonough announced that the VA is moving to offer gender confirmation surgery to transgender veterans:

McDonough said in prepared remarks that the move was “the right thing to do,” and that it was part of an effort to overcome a “dark history” of discrimination against LGBTQ service members. The move is just the first step in what’s likely to be a years-long federal rulemaking process to expand VA health benefits to cover the surgery, but McDonough said the VA will use the time to “develop capacity to meet the surgical needs” of transgender veterans.

City's Use Permit Requirement Violated State Free Exercise Law

In  Henry v. City of Somerton, (D AZ, June 17, 2021), an Arizona federal district court held that an Arizona city violated the state's Free Exercise of Religion Act when, under a now-amended ordinance, it required a church to obtain a conditional use permit to use rented space for religious services. The court held in part:

The Court finds the unamended Ordinance’s CUP requirement treated the Iglesia on less than equal terms than nonreligious assemblies, such as fraternal organizations.

Because there is no genuine dispute of material facts, the Court will grant summary judgment on the FERA claim. ...

Various other claims against the city were dismissed, including plaintiffs' prior restraint claim:

... [W]ithout even having tried to apply for a CUP, any injury Plaintiffs claim that resulted from the CUP evaluation process is purely conjectural. Plaintiffs cannot claim they were deterred by the CUP evaluation process because, by all accounts, they have been conducting services uninterrupted since the Iglesia opened.

Catholic Members of U.S. House Confront Bishops Over Possible Denial of Communion To Pro-Choice Democrats

As reported by CNN, the U.S. Conference of Catholic Bishops today voted 168-55 with 6 abstentions to direct its Committee on Doctrine to draft a formal statement on the meaning of the Eucharist in the life of the Church.  Conservative bishops want to deny communion to public officials, including President Biden, who support abortion rights.

In response to these developments, today 60 Catholic Democratic members of the House of Representatives issued a Statement of Principles which reads in part:

We envision a world in which every child belongs to a loving family and agree with the Catholic Church about the value of human life. Each of us is committed to reducing the number of unintended pregnancies and creating an environment with policies that encourage pregnancies to be carried to term and provide resources to raise healthy and secure children. We believe this includes promoting alternatives to abortion, such as adoption, improving access to children's healthcare and child care, and creating a child benefit through the expanded and improved Child Tax Credit.

In all these issues, we seek the Church's guidance and assistance but believe also in the primacy of conscience.... [W]e acknowledge and accept the tension that comes with being in disagreement with the Church in some areas. We recognize that no political party is perfectly in accord with all aspects of Church doctrine. This fact speaks to the secular nature of American democracy, not the devotion of our democratically elected leaders. Yet we believe we can speak to the fundamental issues that unite us as Catholics and lend our voices to changing the political debate ... that often fails to reflect ... the depth and complexity of these issues....

We believe the separation of church and state allows for our faith to inform our public duties and best serve our constituents. The Sacrament of Holy Communion is central to the life of practicing Catholics, and the weaponization of the Eucharist to Democratic lawmakers for their support of a woman’s safe and legal access to abortion is contradictory. No elected officials have been threatened with being denied the Eucharist as they support and have supported policies contrary to the Church teachings, including supporting the death penalty, separating migrant children from their parents, denying asylum to those seeking safety in the United States, limiting assistance for the hungry and food insecure, and denying rights and dignity to immigrants.

We solemnly urge you to not move forward and deny this most holy of all sacraments ... over one issue....

UPDATE: After the June 17 Conference of Bishops, the USCCB clarified the Conference resolution on drafting a document on the meaning of the Eucharist: " The question of whether or not to deny any individual or groups Holy Communion was not on the ballot."

Christian Organization Appeals IRS Denial of Non-Profit Status

In a determination letter (full text) issued May 18, 2021, the Internal Revenue Service preliminarily concluded that it should deny a Section 501(c)(3) non-profit exemption to Christians Engaged because the religious organization "plans to participate ... in political campaigns on behalf of or in opposition to candidates for public office." The letter continues:

You instruct individuals on issues that are prominent in political campaigns and instruct them in what the Bible says about the issue and how they should vote. These issues include the sanctity of life, the definition of marriage, and biblical justice. These issues generally distinguish candidates and are associated with political platforms. These facts preclude you from exemption under IRC Section 501(c)(3).

... While you educate voters on what the bible says about issues, your educational activities are not neutral. The topics typically are affiliated with distinct candidates and specific political platforms.

First Liberty, on behalf of Christians Engaged, has filed an appeal with the IRS. (Full text of letter dated June 16, 2021). It contends:

... [B]y finding that Christians Engaged does not meet the operational test, Director Martin errs in three ways: 1) he invents a nonexistent requirement that exempt organizations be neutral on public policy issues; 2) he incorrectly concludes that Christians Engaged primarily serves private, nonexempt purposes rather than public, exempt purposes because he thinks its beliefs overlap with the Republican Party’s policy positions; and 3) he violates the First Amendment’s Free Speech, and Free Exercise, and Establishment clauses by engaging in both viewpoint discrimination and religious discrimination.

UPDATE: On July 7, First Liberty announced that the IRS had granted Christians Engaged tax exempt status.