Universal Life Church Can Move Ahead With Suit Over Nevada Marriage Solemnization Law

In Universal Life Church Monastery v. Clark County Nevada, (D NV, Sept. 19, 2021), a Nevada federal district court allowed the Universal Life Church (ULC) which ordains ministers online to move ahead with its equal protection challenge to the refusal of the county to allow its ministers to solemnize marriages. A law—which was in effect only during 2016-2017—required a religious organization to be incorporated, organized or established in the state in order for it to be able to certify its ministers to perform weddings. The court rejected the Church’s free exercise claims, saying in part:

[A]n entity, organization, or person has no First Amendment free exercise right to perform civil marriages….. The Court thus finds that Plaintiff ULC does not have standing to bring a First Amendment Free Exercise claim.

Similarly it rejected ULC’s free exercise claim under the state constitution, and its due process claim, saying in part:

The plain language of ... [the Nevada Constitution] is directed to the “religious profession and worship” and makes no mention of the civil law process of solemnizing marriages. Because this language does not explicitly or implicitly create a claim, there is no standing for a religious organization to bring a free exercise claim for not being included in a civil legal process.

The court also rejected ULC’s procedural due process argument. However it refused to dismiss ULC’s equal protection claim, saying in part:

ULC presented evidence that another similarly situated non-traditional church ... was able to satisfy requirements solely because its listing on the Nevada Secretary of State website contained a checkbox showing it was registered as a religious organization. Therefore, Plaintiff asserts that Defendants implemented its approval process in a discriminatory manner.... [W]hether ULC provided the requested documents ... is a genuine dispute of material fact. The Court therefore denies summary judgment as to both parties.

Christian Adoption Agency Sues To Retain Policy Of Placements Only With Married Heterosexual Families

Suit was filed last week in a New York federal district court by a Christian faith-based family services agency seeking to prevent enforcement against it of New York's anti-discrimination laws insofar as they interfere with the agency's policy of refusing to place children for adoption with unmarried or same-sex couples. The complaint (full text) in New Hope Family Services, Inc. v. James, (ND NY, filed 9/17/2021) alleges in part:

In currently ongoing litigation between New Hope and an agency of the State of New York, two federal courts have already found that efforts by the State to force New Hope to change this choice, in violation of its religious beliefs, likely violate both New Hope’s Free Speech rights and its Free Exercise rights, and the district court has already entered a preliminary injunction protecting New Hope’s right and ability to continue to operate and speak in a manner consistent with its beliefs....

[T[he pendency of a governmental investigation and allegations of violations of law quickly damage New Hope’s reputation that was built up over many decades of faithful service, and discourages hospitals, pregnancy resource centers, and social service agencies from referring birthmothers to New Hope to receive adoption services.

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

Recent Articles of Interest

 From SSRN:

• Joshua D. Sarnoff, Religious and Moral Grounds for Patent-Eligible Subject Matter Exclusions , (Patents on Life: Religious, Moral and Social Justice Aspects of Biotechnology and Intellectual Property, (Cambridge U Press, 2019).
• Jeffrey A. Redding, Rachel Taylor & Sarasu EstherThomas, Introduction: New Directions, New Voices in Family Law in India, (5 Indian Law Review (2021)).
• Conor Casey, Business as Usual? Irish Courts, the Constitution, and COVID-19, (Percorsi Constituzionali/Constitutional Paths (Forthcoming 2021)).
• Aaron Tang, The Originalist Case for an Abortion Middle Ground, (September 13, 2021).
• Kimberley Harris, Ultra-Compelled: Abortion Providers' Free Speech Rights After NIFLA, (Albany Law Review, Forthcoming).
• Seth Barrett Tillman, What Oath (if Any) Did Jacob Henry Take in 1809?: The Problem of Conceptual Confusion Between State Religious Tests and Religious Test Oaths, 62(1) American Journal of Legal History, (forthcoming circa Mar. 2022).

Muslim Women Can Move Ahead With Suit Challenging NYPD Arrest Photo Policy

In Clark v. City of New York, (SD NY, Sept. 17, 2021), a New York federal district court allowed two Muslim women to move ahead with their lawsuit under the 1st Amendment and RLUIPA challenging the New York City police department's requirement that they remove their hijab when sitting for an arrest photo. The court said in part:

Allowing an arrestee to maintain her ordinary appearance in a Booking Photograph does not undermine the legitimate interest of keeping a photographic record of arrestees... In fact, photographing the arrestee in her ordinary appearance likely furthers law enforcement’s interest in identification—rather than impeding such interest—because arrestees who have a sincere religious belief that requires them to wear a head covering are likely to be wearing that same covering when the need to identify them arises.

The court also refused to dismiss one of the plaintiff's assertion of a private right of action under the New York constitution. 

Suit Challenges California's Ethnic Studies Model Curriculum

Suit was filed earlier this month in a California state trial court challenging a portion of the state's Ethnic Studies Model Curriculum.  The complaint (full text) in Californians for Equal Rights Foundation v. State of California, (Super. Ct., filed 9/3/2021), alleges that the chair of the committee that developed the model curriculum has shown in his writings an animus toward Christianity and Catholicism, and reflects this by including in the model curriculum various prayers based on indigenous religious principles. the complaint continues:

The ... ESMC Lesson Resources section contains a prayer entitled the “In Lak Ech Affirmation” .... The Aztec Prayer invokes the names of five beings worshiped by the Aztecs as gods or demi-gods.... The names of these Aztec gods are collectively invoked 20 times.... They are honored and praised by repeatedly invoking their respective names...

The ancient Aztec religion is not a philosophy, dead mythology, historic curiosity, general outlook on life, or mere symbol. Rather, it is a recognized living faith practiced today both by descendants of the Aztecs and by others..... The fact that it is not large, institutional, or well-known does not change its status as a religion.

The complaint also contends that the curriculum also includes the Ashe Affirmation taken from Yoruba religion of Nigeria. The complaint asserts violations of the establishment clause, free exercise clause and no-aid clause of the California constitution. Religion News Service reports on the lawsuit.

Automatic Stay of Suits In Bankruptcy Prevents State Court Defamation Suit Against Diocese

In In re Roman Catholic Church of the Diocese of Santa Fe, (NM Bkruptcy., Sept. 17, 2021), a New Mexico federal bankruptcy court refused to lift the Bankruptcy Code's automatic stay of suits which the Diocese of Santa Fe enjoys while going through bankruptcy reorganization proceedings. Rudy Blea, a former lay minister in the Catholic Church, sought to bring a state court defamation action against the Diocese for wrongfully placing him on a list of "Priests, Deacons, and Religious Accused of Sexual Abuse of Children." He claims that his lay position places him outside the description of those included in the list. He also contends that a relationship he had when he was 19 with 17 year old Gary House was consensual. Subsequently Blea settled a suit against him brought by House. Now the bankruptcy court said in part:

[T]he Court finds that Blea has not carried his burden of showing that cause exists to modify the automatic stay. Blea has an uphill battle to win his defamation claim and get money damages. His chance of obtaining his desired equitable relief from this Court is vanishingly small, for the reasons outlined above. It makes no sense to allow Blea to tilt at this windmill, nor to force Debtor (and other creditors) to incur the expense of defending the charge.

The court did however hold that the Bankruptcy Court:

has jurisdiction to hear Blea’s defamation claim and award money damages if appropriate, applying neutral principles of law. It also has jurisdiction to enjoin further publication of defamatory statements, if defamation is proved. It does not have jurisdiction, however, to order that Blea be removed from the List, nor to adjudicate Blea’s challenge to Debtor’s decision that he was close enough to the church in 1970 to warrant inclusion on the List.

Arkansas Supreme Court Rejects Inmate's Complaint Over Withholding Of NOI Publications

In Muntaqim v. Payne, (AR Sup. Ct., Sept. 16, 2021), the Arkansas Supreme Court affirmed the dismissal of a suit litigated pro se by a Nation of Islam inmate who contested prison officials' withholding of multiple copies of the NOI publication Final Call for review because of racist and inflammatory content. Plaintiff also alleged that the mailroom supervisor destroyed five copies of NOI books. Responding to appellant's RLUIPA and free exercise claims, the court said in part:

The prison must permit a reasonable opportunity for an inmate to engage in religious activities but need not provide unlimited opportunities to do so. Id. Muntaqim’s claims that the appellees restricted access to some but not all NOI religious literature did not state sufficient facts that appellees placed a substantial burden on the exercise of his religious practices.

The court also rejected free speech, equal protection, due process, access to courts and Establishment Clause claims.

Satanic Temple Loses Fight Over City's Revocation Of Display Permit

In The Satanic Temple v. City of Belle Plaine, Minnesota, (D MN, Sept. 15, 2021), a Minnesota federal district court dismissed the promissory estoppel claim by The Satanic Temple (TST) growing out of Belle Plaine's rescission of a resolution allowing private groups to place displays in a city park. The city had originally created a limited public forum for private displays honoring veterans, and TST had received a permit to do so. The court said in part:

Here, as addressed, TST received the benefit of Belle Plaine’s alleged promise: TST had a limited-time opportunity, for nearly four months, to display its monument in Veterans Memorial Park. That Belle Plaine terminated TST’s permit early was both authorized by the Enacting Resolution and understood by TST as a possibility when TST applied for a permit. Any contrary expectation held by TST when relying on Belle Plaine’s alleged promise would have been unreasonable. There also is no allegation or evidence that Belle Plaine was unjustly enriched. The only money Belle Plaine received from TST was a $100 permit fee, which Belle Plaine reimbursed to TST. In addition, as addressed, the evidence reflects that TST was not financially harmed and there is no evidence of reputational harm.

The court upheld a magistrate's refusal to allow TST to belatedly amend its complaint to allege free speech, free exercise, equal protection claims and due process claims. Similar claims were previously dismissed. The court also imposed sanctions, in the form of the city's attorney's fees, against TST for maintaining a frivolous lawsuit.

6th Circuit Dismisses Suit Against Anti-Israel Picketers of Synagogue

In Gerber v. Herskovitz, (6th Cir., Sept. 15, 2021), the U.S. 6th Circuit Court of Appeals dismissed a suit by synagogue members against anti-Israel pickets who have picketed services at the Beth Israel Synagogue in Ann Arbor, Michigan every week since 2003.  The district court had dismissed the suit on standing grounds. (See prior posting.) On appeal, the majority said in part:

The district court granted the defendants’ motions to dismiss for lack of standing. We disagree on that point, as the plaintiffs have alleged a concrete and particularized harm to a legally protected interest. But the reality that they have standing to bring these claims does not entitle them to relief. The key obstacle is the robust protections that the First Amendment affords to nonviolent protests on matters of public concern. We affirm the district court’s dismissal on that basis.

Judge Clay filed a concurring opinion stating that he would have affirmed the district court's dismissal on standing grounds, saying in part:

Plaintiffs’ allegations of extreme emotional distress fail to establish standing in this case because there is no legally protected interest in not being offended by the speech of others.

Courthouse News Service reports on the decision.

Bidens Extend Yom Kippur Greetings

Today President Biden issued a statement (full text) on the Jewish holy day of Yom Kippur which begins this evening. The statement reads in part:

At its core, this sacred and solemn day reaffirms a universal principle at the essence of our humanity: that, through word and deed, we each have the ability to right wrongs, mend rifts, and heal wounds.... 

... Jill and I extend our very best wishes for an easy and meaningful fast to all who observe Yom Kippur.... May we each be sealed in the Book of Life.

DOJ Seeks TRO To Prevent Suits Under Texas "Heartbeat" Abortion Bill

After filing suit last week in a Texas federal district court to prevent the state of Texas from enforcing SB 8, Texas' "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages, the Department of Justice yesterday filed an emergency motion for a temporary restraining order or preliminary injunction. The motion and memorandum of law (full text) in United States v. State of Texas, (WD TX, filed 9/14/2021), contends in part:

[T]he Court could enjoin any person who files suit under S.B. 8 from prosecuting his or her claim. Here, an injunction against Texas can run to the individuals who file civil enforcement actions because, at a minimum, those individuals would qualify as “persons who are in active concert or participation with” the State. Fed. R. Civ. P. 65(d)(2)(C). The purpose of Rule 65 is to prevent defendants from creating schemes to evade judicial review and enforcement by ensuring that injunctive relief “not only binds the parties defendants but also those identified with them in interest, in ‘privity’ with them, represented by them or subject to their control.”

New York Times reports on the filing.

Cert. Filed In Case Of Football Coach Seeking To Pray On Field

A petition for certiorari (full text) was filed with the U.S. Supreme Court yesterday in Kennedy v. Bremerton School District, (US Sup. Ct., cert. filed 9/14/2021). In the case, the U.S. 9th Circuit Court of Appeals upheld the firing of a high school football coach who insisted on prominently praying at the 50-yard line immediately after football games. A divided 9th Circuit denied en banc review. (See prior posting.) First Liberty issued a press release announcing the filing of the petition for review.

EEOC Suit Protecting Religious Objector To Fingerprinting Is Settled

The EEOC announced last week that Minnesota- based AscensionPoint Recovery Services has settled an EEOC religious discrimination lawsuit brought against it by agreeing to pay $65,000 in damages and implementing changes to its policies. According to the EEOC, the company fired a Christian employee who objected to being fingerprinted:

The fingerprinting requirement was prompted by a background check procedure requested by of one of the company’s 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 were available.

TRO Issued Barring Denial of Religious Exemptions To Health Care Workers' Vaccine Mandate

 In Dr. A v. Hochul, (ND NY, Sept. 14, 2021), a New York federal district court issued a temporary restraining order barring the New York Department of Health from enforcing any requirement that employers deny religious exemptions from the Department's COVID-19 vaccine mandate. At issue is the Department's recent vaccine mandate for health care workers employed at hospitals and nursing homes. The TRO was issued one day after the suit was filed. The state has until Sept. 22 to file its objections and the court set a hearing for September 28 at which time the state will be able to present its arguments against turning the TRO into a preliminary injunction. Hudson Valley360 reports on the decision. (See prior related posting.)

Right-Wing Catholic Group Sues Over Cancellation Of Its Protest Rally

Suit was filed yesterday in a Maryland federal district court by the right-wing Catholic group Church Militant against the city of Baltimore for requiring the cancellation of Church Militant's prayer rally scheduled to be held across from the U.S. Conference of Catholic Bishops Fall General Assembly. The rally was titled "Bishops: Enough Is Enough." The complaint (full text) in St. Michael's Media, Inc. v. City of Baltimore, (D MD, filed 9/13/2021), alleges that the cancellation violates the group's free speech, free exercise, free association and Establishment Clause rights, saying in part:

The purpose of the rally is to engage in protected speech criticizing elements of the power structure of the Catholic Church in a situation where the speech would reach the Church's leadership.

Baltimore Brew reports on the lawsuit.

Suit Challenges Absence Of Religious Exemptions In New York's Vaccine Mandate For Health Care Workers

Suit was filed Friday in a New York federal district court by New York health care workers challenging the absence of religious exemptions in New York state's mandate that all health care workers be vaccinated against COVID-19. The complaint (full text) in John Doe I v. Hochul, (ED NY, filed 9/10/2021) and the accompanying motion and memorandum of law (full text) seeking a temporary restraining order and preliminary injunction allege free exercise, equal protection and Title VII violations, among others. Plaintiffs allege in part:

Plaintiffs’ sincerely held religious beliefs, rooted in the above Scriptures, preclude them from accepting any one of the three currently available COVID-19 vaccines derived from, produced or manufactured by, tested on, developed with, or otherwise connected to aborted fetal cell lines.

The suit, filed by Liberty Counsel (press release) is similar to one filed by the same organization last month against the state of Maine. (See prior posting.) Yesterday's New York Times carried a lengthy article on the growing reliance on religious objections to COVID-19 vaccinations.

UPDATE: A similar suit was filed on Monday in the Northern District of New York on behalf of health care personnel, brought by the Thomas More Society.  Dr. A. v. Hochul, (ND NY, filed 9/13/2021) (full text of complaint).

Federal Court Clears Way For Telemedicine Medication Abortions On Guam

In Raidoo v. Camacho, (D GU, Sept. 3, 2021), a Guam federal district court issued a preliminary injunction that permits Guam-licensed physicians who reside in Hawaii to remotely supply medication abortions to women on Guam through teleconference consultations with the medication delivered by mail.  According to the court:

In 2018, the last abortion physician on Guam retired, and no local doctor has stepped in to fill the vacancy....  While Plaintiffs claim there are physicians on Guam willing to provide pre- and post-abortion care, none are willing to provide abortion services directly, as “[a]nti-abortion stigma discourages even supportive local doctors from incorporating abortion services into their practice.”

The legal impediment to the proposed procedure are provisions in the Guam Public Health Code §3218.1 that require certain information to be given to the woman "in person" and "individually and in a private room." The court said in part:

Here, Defendants fail to rebut Plaintiffs’ argument that the in-person requirement serves no benefit to a legitimate state interest.... Defendants failed to offer any evidence that supports their position that in-person communication is superior to live, face-to-face video conference.

KUAM News reports on the decision. The Archbishop of Agaña, head of the Catholic Church in Guam, reacted to the decision.

Recent Articles of Interest

From SSRN:

• Devin Humphreys, Excerpts from the Model Rules of Dating Procedure, (September 5, 2021).
• Pragya Verma, Revisiting the Divide between Blasphemy and Free Speech in a Modern Secular Society, (November 26, 2020).
• James M. Oleske, Jr., The ‘Mere Civility’ of Equality Law and Compelled Speech Quandaries, (9 Oxford Journal of Law and Religion 288 (2020)).
• Arie Reich & Guy Harpz, Kosher and Halal Slaughtering Before the Court of Justice: A Case of Religious Intolerance?,   (European Public Law, January 2022 issue).
• Alexi Pfeffer-Gillet, Civil Disobedience in the Face of Texas's Abortion Ban, (September 8, 2021).
• Dalia Tsuk Mitchell, Business as Usual: Hobby Lobby and the Purpose of Corporate Rights, (Columbia Business Law Review, Vol. 2021, No. 1, 2021).
• Sherry F. Colb, Free Exercise in the Mirror, (Cornell Legal Studies Research Paper, 2021).

Oklahoma Governor Signs 9 Bills Supported By Pro-Life Movement

Oklahoma Governor Kevin Stitt, in a press release last week, announced his ceremonial signing of nine new laws supported by the pro-life movement, which were summarized as follows:

• SB 918 restores Oklahoma’s prohibition on abortion if Roe v Wade is overturned....
• HB 1102 adds the performance of an abortion under state statutes for “unprofessional conduct,” with exceptions for the life or significant physical impairment of the mother....
• HB 1904 requires abortionists to be board certified in obstetrics and gynecology....
• HB 2441 prohibits abortion once a fetal heartbeat is detected....
• SB 778 and SB 779 provide safeguards surrounding the use of abortion-inducing drugs....
• SB 960 protects relinquished children by extending the time frame they can be relinquished to rescuers from 7-30 days. It also, directs the Oklahoma State Department of Health to award grants for the child to be placed into a “Baby Box” where the newborn can be relinquished....
• SB 647 created Lily’s Law ... [which] requires birthing centers and other medical facilities to keep a written policy to allow for the family to direct the disposition of the remains of the child who was stillborn or miscarried....
• SB 584 prohibits fetal trafficking....

[Thanks to Scott Mange for the lead.]

Justice Department Sues Texas To Block Enforcement Of "Heartbeat" Abortion Ban

The Department of Justice announced yesterday that it has filed suit in a Texas federal district court to prevent the state of Texas from enforcing SB 8, Texas' "heartbeat" abortion ban that is enforced solely through private civil actions for statutory damages. The complaint (full text) in United States v. State of Texas, (WD TX, filed 9/9/2021), contends:

Texas enacted S.B. 8 in open defiance of the Constitution.... Because S.B. 8 clearly violates the Constitution, Texas adopted an unprecedented scheme “to insulate the State from responsibility”...  by making the statute harder to challenge in court....

The United States has the authority and responsibility to ensure that Texas cannot evade its obligations under the Constitution and deprive individuals of their constitutional rights by adopting a statutory scheme designed specifically to evade traditional mechanisms of federal judicial review. The federal government therefore brings this suit directly against the State of Texas to obtain a declaration that S.B. 8 is invalid, to enjoin its enforcement, and to protect the rights that Texas has violated.

The complaint contends that state action is present, even though the statute relies on private enforcement:

[W]hile Texas has gone to unprecedented lengths to cloak its attack on constitutionally protected rights behind a nominally private cause of action, it nonetheless has compelled its judicial branch to serve an enforcer’s role. “State action, as that phrase is understood for the purposes of the Fourteenth Amendment, refers to exertions of state power in all forms.” ...

Under the state-action doctrine, private actors also may be found to function as agents or arms of the state itself and thus are bound by the Constitution.

The complaint also alleges a more direct impact on the federal government:

S.B. 8 exposes federal personnel and grantees to liability for carrying out their federal obligations to provide access to abortion-related services to persons in the care and custody of federal agencies and interferes with federal contracts and grants with third-party providers who are obligated under their agreements to provide abortion-related services but refuse to do so to avoid liability under S.B. 8.

Attorney General Garland also delivered remarks (full text) announcing the lawsuit. Dallas Morning News has additional background and reactions.