Monday, November 06, 2023

LDS Church Sued Over Use of Tithed Funds

A class-action lawsuit was filed last week in a Utah federal district court against the Latter-Day Saints Church alleging fraud, unjust enrichment and breach of fiduciary duty in the handling of tithed funds and other contributions by the Church. The complaint (full text) in Chappell v. Corporation of the President of the Church of Jesis Christ of Latter-Day Saints, (D UT, filed 10/31/2023) alleges in part:

1. For decades, COP has used false pretenses to obtain donations. Rather than use these funds entrusted to it for charitable work, COP secreted donations away in Ensign in order to avoid public scrutiny and accountability to the donors, and instead used them for purposes never contemplated by donors and contrary to representations by COP....

3. For instance, COP maintains various philanthropies, including “Humanitarian Relief,” which provides “immediate emergency assistance to victims” of disasters. On its website, COP solicits donations to the Humanitarian Relief fund by stating that “One hundred percent of every dollar donated is used to help those in need without regard to race, religion, or ethnic origin.”

4. Despite these representations to donors, Plaintiffs understand based on public reports from third parties that COP deliberately hid that some, if not all, of these donations (including both tithes and donations made to a COP philanthropy) are permanently invested in accounts it never uses for any charitable work, so that every year, an enormous portion of the donations are never spent for these —or any— purposes.

Salt Lake Tribune reports on the lawsuit.

Recent Articles of Interest

From SSRN:

From SmartCILP:

Friday, November 03, 2023

Supreme Court Review Sought in Tennessee's Ban on Medical Treatment of Minors for Gender Dysphoria

 A petition for certiorari (full text) was filed with the U.S. Supreme Court this week in L.W. v. Skrmetti, (Sup. Ct., filed 11/1/2023). In the case, the U.S. 6th Circuit Court of Appeals in a 2-1 decision, reversed a preliminary injunction issued by a district court in a challenge to Tennessee's ban on chemical, hormonal or surgical treatment of minors for gender dysphoria. The majority rejected due process and equal protection challenges to the state law. (See prior posting.) ACLU issued a press release  announcing its filing of the petition seeking review of the 6th Circuit's decision.

Thursday, November 02, 2023

2023 Report on Religious Liberty in the States Released

The Center for Religion, Culture and Democracy has released its report 2023 Religious Liberty in the States. In this, its second annual report that measures state-level protections for religious liberty, the Center has added three new criteria, so that it now bases its state rankings on 14 types of state laws. The Report's Executive Summary says in part:

RLS has approached religious liberty from the perspective that people of any faith or no faith should be allowed to live in all areas of their lives according to their sincere beliefs. For that reason, we have not limited our analyses to activities that typically occur within houses of worship or activities of the clerical professions; we have defined religious exercise broadly. And while in 2022 it was not our intention to focus on any particular areas of life—rather, in our first project year we aimed to characterize the laws in areas where they were most clear—we note that in 2023 the new safeguards are noticeably more closely tied to religious ceremony or observance, narrowly understood. RLS continues to explore new items for future years and welcomes feedback from interested parties.

The Report ranks Illinois as highest in religious liberty protections and ranks West Virginia lowest.

White House Will Develop National Strategy to Counter Islamophobia

The Whtie House announced yesterday that the Biden-Harris Administration will develop the first National Strategy to Counter Islamophobia in the United States. The announcement (full text) said in part:

For too long, Muslims in America, and those perceived to be Muslim, such as Arabs and Sikhs, have endured a disproportionate number of hate-fueled attacks and other discriminatory incidents. We all mourn the recent barbaric killing of Wadea Al-Fayoume, a 6-year-old Palestinian American Muslim boy, and the brutal attack on his mother in their home outside Chicago.

Today’s announcement is the latest step as part of President Biden’s directive last year to establish an interagency group to increase and better coordinate U.S. Government efforts to counter Islamophobia, Antisemitism, and related forms of bias and discrimination within the United States.

Missouri Appeals Court Finds Secretary of State's Ballot Summary of Abortion Rights Initiatives Unfair

In Fitz-James v. Ashcroft, (MO App., Oct. 31, 2023), a Missouri state appeals court agreed with a trial court that ballot summaries prepared by the Secretary of State for six different abortion rights initiative proposals were insufficient and unfair.  Three of the offending summaries read as follows:

Do you want the Missouri Constitution to:

• allow for dangerous, unregulated, and unrestricted abortions, from conception to live birth, without requiring a medical license or potentially being subject to medical malpractice;

• nullify longstanding Missouri law protecting the right to life, including but not limited to partial-birth abortion;

• allow for laws to be enacted regulating abortion procedures after Fetal Viability, while guaranteeing the right of any woman, including a minor, to end the life of their unborn child at any time; and 

• require the government not to discriminate against persons providing or obtaining an abortion, potentially including tax-payer funding.

The appeals court, with a few modifications, accepted the trial court's rewritten versions of the ballot summaries. For example, the appeals court prescribed the following rewrite for one of the proposals:

Do you want to amend the Missouri Constitution to:

• establish a right to make decisions about reproductive health care, including abortion and contraceptives, with any governmental interference of that right presumed invalid;

• remove Missouri’s ban on abortion;

• allow regulation of reproductive health care to improve or maintain the health of the patient;

• require the government not to discriminate, in government programs, funding, and other activities, against persons providing or obtaining reproductive health care; and

• allow abortion to be restricted or banned after Fetal Viability except to protect the life or health of the woman?

The Secretary of State issued a press release criticizing the decision and saying that he plans to appeal it.  AP reports on the decision. (See prior related posting.) [Thanks to Thomas Rutledge for the lead.]

Wednesday, November 01, 2023

Free Speech and Free Exercise Challenges to Law Restricting Sidewalk Counselors Moves Ahead

In Pro-Life Action Ministries v. City of Minneapolis, (D MN, Oct. 30,2022), a Minnesota federal district court dismissed void-for-vagueness and an expressive-association challenges to a Minneapolis ordinance that bans physically disrupting access to a reproductive healthcare facility.  The court however refused to dismiss plaintiff's free speech, free exercise of religion and overbreadth claims. It said that it is impossible, without a trial record that explores historical background, legislative history, and contemporaneous statements of decisionmakers to determine whether the law is neutral and generally applicable, or whether, instead, it targets religious conduct. A trial record is also needed to decide whether the law is narrowly tailored. The suit was brought by a Christian nonprofit organization that engages in “sidewalk counseling” outside abortion clinics.

Louis Farrakhan Sues Anti-Defamation League for $4.8 Billion

Suit was filed earlier this month in a New York federal district court by Nation of Islam leader Louis Farrakhan against the Anti-Defamation League and the Simon Wiesenthal Center seeking $4.8 billion in damages. The suit alleges that defendants are interfering with Farrakhan's activities through labeling him as an antisemite. The complaint (full text) in Farrakhan v. Anti-Defamation League, (SD NY, filed 10/16/2023), alleges violations of the First Amendment's protections for freedom of association and free exercise of religion, as well as alleging causes of action for defamation. The complaint contends that the Anti-Defamation Leage is a "de facto, quasi-governmental actor", alleging in part:

 344.... [O]n or about December 20, 2022, the Defendant ADL submitted a demand letter directly to the Office of Management and Budget ... for funds it desired to be redirected from programs and services that benefit the average American citizen to its own coffers to be used as it sees fit....

345.Extraordinarily, that same demand letter brazenly commanded the OMB to allocate funds to other agencies and departments of the U.S. government that it, and/or its functionaries, would directly benefit from....

348.Based upon the regulations of the U.S. government, Defendant ADL’s fiscal appropriations demand made directly to the OMB incontrovertibly establishes it as a quasi-governmental agency....

More generally, the complaint says in part:

2. For nearly forty (40) years, the Anti-Defamation League ..., later joined by the Simon Wiesenthal Center ..., in violation of the rights and protections guaranteed by the First Amendment to the United States Constitution, have engaged in actions to hinder Minister Farrakhan and the Nation of Islam from continuing the Mission that Allah (God) gave to the Most Honorable Elijah Muhammad. 

3. That Mission, accepted by Minister Farrakhan, is to deliver the Truth that will correct the condition of spiritual, mental and moral death of the black man and woman of America that came as a result of the 310 years of chattel slavery and over 150 years of oppression and suppression, thereafter....

6. This lawsuit is to ensure that the abuse, misuse, and false use of the terms “anti-Semite,” “anti-Semitic,” and “antisemitism,” as falsely charged by the Defendants is permanently barred from being a tool to defame Plaintiffs and stifle the exercise of constitutional rights.

The Forward reports on the lawsuit.

Tuesday, October 31, 2023

Court Enjoins Enforcement of Kansas Abortion Disclosure and Waiting Period Requirements

 In Hodes & Nauser MDs PA v. Kobach, (KS Dist. Ct., Oct. 30, 2023), a Kansas state trial court in a 92-page opinion issued a temporary injunction barring enforcement of the abortion disclosure and waiting period requirements in Kansas Woman’s-Right-to-Know Act and its Medication Abortion Reversal Amendment. The court, relying on state constitutional provisions, said in part:

The Kansas Supreme Court has previously noted that trial courts face a “heavy task” when wrestling with these issues, and this Court concurs in the observation that no easy decisions exist on what may be one of the most divisive social issues of our modern history.... Inevitably, some likely will disagree or take issue with the interim conclusions reached herein on Plaintiffs’ motion for a Temporary Injunction, whether based upon specific moral, ethical, or spiritual concerns. However, such considerations are (and must be) separate and apart from this Court’s role in evaluating the potential constitutional encroachment (or lack thereof) of the State’s efforts to impose its authority under the auspices of police power, given our state Founding Father’s emphasis on (and the primacy of) the people’s inalienable natural rights. Those constitutional guarantees include the people’s rights to make their own decisions regarding their bodies, health, family formation, and family life-decisions that can include whether to continue a pregnancy—all of which are necessary corollaries to the right of bodily autonomy. Similarly, the right to freedom of speech, whether to speak or avoid compelled speech, is also a fundamental right that our state founders held dear and enshrined in the Bill of Rights, thus, it demands protection under a strict scrutiny standard in this case....

The Court has great respect for the deeply held beliefs on either side of this contentious issue. Nevertheless, the State’s capacity to legislate pursuant to its own moral scruples is necessarily curbed by the Kansas Constitution and its Bill of Rights. The State may pick a side and viewpoint, but in doing so, it may not trespass upon the natural inalienable rights of the people. In this case, the preliminary record before the Court demonstrates that the provisions at issue invade and unconstitutionally infringe upon Kansans’ fundamental rights under Section 1 and 11 of the Kansas Constitution Bill of Rights.

KWCH News reported on the decision.

Pennsylvania Legislature Repeals Ban on Public School Teachers Wearing Religious Garb or Insignia

Yesterday, the Pennsylvania legislature gave final passage to Senate Bill 84 (full text) which repeals Pennsylvania's ban on public school teachers wearing any religious garb or insignia in the classroom. According to Penn Live, Governor Josh Shapiro is expected to sign the bill when it reaches his desk. Pennsylvania is the only state that still has such a ban on its books. In Nichol v. Arin Intermediate Unit 28, (WD PA, June 25, 2003), a Pennsylvania federal district court, in a preliminary injunction action, held that the law likely violates the Free Speech and Free Exercise clauses of the 1st Amendment. After the decision, plaintiff was rehired and given back pay. (See Senate Memo on SB 84.)

British Court Rejects Muslim Mother's Objections to Child's Routine Vaccinations

 In WSP (A Child), Re (Vaccination: Religious Objection, (EWHC (Family), Oct. 23, 2023), a British trial court rejected a claim by a Muslim mother that her rights under Article 9 of the European Convention on Human Rights were being violating when the state insisted on routine vaccinations for her 9-month old son who, because of the mother's mental health condition, was in custody of the state. According to the court, the mother contended:

 ... [T]he use of animal products or animal testing in the production of the vaccines means that some (but not all) Muslims consider their use to be 'haram' (forbidden).... She is concerned that, if vaccinated, WSP would suffer emotional or psychological harm. If he does something haram without repenting, 'this would take him out of the fold of Islam, as he would not have adhered to the rulings of God made for people'. It would be harmful for him to have to repent for something he had no control over.... He may feel guilty and confused. He may question why his mother or grandparents did not stop the immunisations. He may also question his religion and his place within the family and/ or community if he has not allowed the same religious observances as others....

The court concluded in part:

... [I]n the absence of cogent, objective evidence of harm to his welfare, the mother's objections on religious grounds do not otherwise outweigh WSP's welfare interests in receiving the vaccinations....  Her religious objections must be given respect.... However, those religious views do not carry more weight the more strongly they are held or the more forcefully they are expressed.... Given my conclusion that the welfare reasons the mother has put forward do not outweigh WSP's interests in receiving the vaccines, the fact of her objection, even on well-founded religious grounds and however strongly expressed, takes the matter no further. WSP's welfare is the paramount consideration and the mother's objection is inconsistent with his welfare. The fact her objection is founded on her religious beliefs does not constitute a trump card that overrides what is otherwise in his best interests.

Law & Religion UK has more on the decision.                                                                                                              

Monday, October 30, 2023

Satanic Temple Lacks Standing to Challenge Indiana Abortion Ban

 In The Satanic Temple, Inc. v. Rokita, (SD IN, Oct. 23, 2023), an Indiana federal district court dismissed The Satanic Temple's challenge under Indiana's Religious Freedom Restoration Act to the state's ban on abortions. The court dismissed for lack of standing, finding that TST failed to identify any of its members who are pregnant and has no clinic of its own operating in Indiana. Indiana's Attorney General issued a press release announcing the decision. Indiana Capital Chronicle reports on the decision. [Thanks to Thomas Rutledge for the lead.]

Recent Articles of Interest

From SSRN:

From SmartCILP and elsewhere:

Sunday, October 29, 2023

President's Statement on 25th Anniversary of International Religious Freedom Act

On Friday, President Biden issued a Statement (full text) the 25th Anniversary of the International Religious Freedom Act. He said in part:

Here at home, we are facing a rising tide of antisemitism, Islamophobia, and other forms of discrimination that are fueling violence and hate across our country. And, around the world, billions of people live in countries where they are either persecuted or prevented from freely choosing, practicing, teaching, or leaving their faith. That’s especially true for members of religious minority communities too often endure intimidation, violence, and unequal protection under the law, while also facing restrictions on their movement, constraints on their access to education and healthcare, and the fear that their children will be taken and their faith erased. We have seen attacks on Christians in some countries. And we also continue to see repressive governments and violent extremists reach across borders and to target groups for their beliefs—an abhorrent abuse of the human rights and dignity entitled to all people.

 The United States will continue to defend religious freedom, today and always.

[Corrected]. 

Friday, October 27, 2023

West Virginia School Settles Suit Over Religious Activities

The Freedom From Religion Foundation announced yesterday the settlement of a suit against a West Virginia school, its principal and a substitute teacher for scheduling and hosting an evangelical Christian revival as an assembly in the school auditorium during homeroom period in violation of the Establishment Clause.  Yesterday the parties jointly dismissed Mays v. Cabell County Board of Education, (SD WV, dismissed 10/26/2023).. According to FFRF:

As part of a settlement, the board agreed to amend its policies relating to religion in schools. The board voted on Oct. 17 to adopt the policy revisions. Significantly, those changes require annual training of teachers about religion in school. School administrators also are tasked with greater monitoring of school events. Finally, the policy provides greater detail to ensure that employees do not initiate or lead students in religious activities. [Full text of amended policy.]

The settlement also includes nominal damages and attorneys' fees of $175,000 paid by the school board's insurers. (See prior related posting.)

Tennessee Sues to Restore Title X Grant Without Making Abortion Referrals

Tennessee's Attorney General this week filed suit against the U.S. Department of Health and Human Services seeking to restore Tennessee's $7 million annual Title X family planning grant which had been cancelled because of the state's abortion referral policy.  The complaint (full text) in State of Tennessee v. Becerra, (ED TN, filed 10/24/2023), challenges the HHS rule that requires Title X grantees to furnish information and nondirective counseling on abortion if pregnant clients request it.  Tennessee was only willing to make referrals and provide counseling as to procedures that are legal in Tennessee,  HHS takes the position that where, as in Tennessee, abortion is outlawed, out-of-state referrals would be required. the suit contends that the HHS rule violates various provisions of the Administrative Procedure Act. It asks the court, among other things, to:

Enjoin Defendants from withholding Title X funds from Tennessee for refusing to offer counseling and referrals (including out-of-state) for abortions that are otherwise illegal under Tennessee law.

Catholic World Report reports on the lawsuit.

Thursday, October 26, 2023

Texas Supreme Court Hears Oral Arguments from JP Sanctioned for Refusing to Perform Same-Sex Weddings

The Texas Supreme Court yesterday heard oral arguments (video of full oral arguments) in Hensley v. State Commission on Judicial Conduct, (TX Sup. Ct., Oct. 25, 2023). (Briefs filed in the case.) In the case, the state Court of Appeals affirmed the dismissal of a suit challenging a public warning issued by the Commission on Judicial Conduct that concluded plaintiff, a justice of the peace, had cast doubt on her ability to act impartially toward LGBTQ litigants. Plaintiff refused to perform same-sex weddings, while continuing to perform weddings for heterosexual couples. She contended that the Commission on Judicial Conduct violated her rights under the Texas Religious Freedom Act. (See prior posting.)  The appeals court held that the suit was an impermissible collateral attack on the Commission's order. Texas Tribune reports on the oral arguments.

OK Supreme Court: Church Autonomy Doctrine Requires Dispute Over Disaffiliation to Be Dismissed

In Oklahoma Annual Conference of the United Methodist Church v. Timmons, (OK Sup. Ct., Oct. 24, 2023), the Oklahoma Supreme Court held that under the church autonomy doctrine, a state trial court lacked subject matter jurisdiction to issue the temporary injunction it had entered in a dispute between the United Metodist Church and a local congregation, some of whose members wished to have the congregation disaffiliate from the parent body.  The initial vote by the Church of the Servant congregation fell slightly short of the number needed under United Methodist Book of Discipline to disaffiliate. The District Superintendent refused to exercise the discretion he had under Church rules to call another vote on the matter within a specified time period. The trial court concluded that the District Superintendent was biased against the congregation and ordered the parent body to allow a revote, even though it was beyond the time specified for it in the Book of Discipline.  The Supreme Court said in part: 

In ordering the temporary mandatory injunction in favor of Church of the Servant, Respondent found the church was likely to succeed on the merits and would be irreparably harmed without the injunction.... In so finding, the District Court interpretated the Book of Discipline church doctrine and procedures for UMC and fashioned a remedy contrary to Book of Discipline procedures.

Wednesday, October 25, 2023

New House Speaker Has Long Record of Conservative Advocacy on Religious Freedom Issues

Newly elected Speaker of the U.S. House of Representatives, Mike Johnson (R- LA), has a long record, before he was in Congress, of advocacy on conservative Christian religious issues.  Wikipedia reports:

Before his election to Congress, Johnson was a partner in the Kitchens Law Firm and a senior attorney and national media spokesman for the Alliance Defense Fund, now known as Alliance Defending Freedom. Johnson was also formerly chief counsel of the nonprofit law firm Freedom Guard.

In September 2016, Johnson characterized his legal career as "defending religious freedom, the sanctity of human life, and biblical values, including the defense of traditional marriage, and other ideals like these when they’ve been under assault."

Johnson served as a trustee of the Ethics and Religious Liberty Commission within the Southern Baptist Convention from 2004 to 2012.

Johnson came to some prominence in the late 1990s when he and his wife appeared on national television to represent Louisiana's newly passed marriage covenant laws, which made divorce more difficult legally.

Louisiana House of Representatives

After the 8th District seat was vacated in 2015, Johnson ran for the position unopposed....

In April 2015, Johnson proposed the Marriage and Conscience Act, a bill similar in content to Indiana's controversial Religious Freedom Restoration Act passed a few days earlier, though Johnson denied that his legislation was based on the Indiana law.

Johnson's Marriage and Conscience Act would have prevented adverse treatment by the State of any person or entity on the basis of the views they may hold with regard to marriage. Critics denounced the bill as an attempt to protect people who discriminate against same-sex married couples.

An e-mail statement from First Liberty Institute says that Johnson was also once a First Liberty attorney.

Georgia Supreme Court: 2019 Heartbeat Abortion Ban Was Not Void Ab Initio

In State of Georgia v. SisterSong Women of Color Reproductive Justice Collective, (GA Sup. Ct., Oct. 24, 2023), the Georgia Supreme Court rejected a state trial court's holding that the state's heartbeat abortion ban (Living Infants Fairness and Equality Act) enacted in 2019 was void ab initio. The state Supreme Court had previously granted a stay of the trial court's order while the appeal was pending. Yesterday's decision keeps the law in effect while other challenges to it work their way through the courts. In yesterday's decision, the court said in part:

[T]he trial court concluded that portions of the LIFE Act were void when enacted in 2019 because they “were plainly unconstitutional [under the United States Constitution] when drafted, voted upon, and enacted.” According to the trial court, this was true even though the LIFE Act would comply with the United States Constitution if enacted today and the same United States Constitution governs today as governed when the LIFE Act was enacted.

This incorrect conclusion rests on a faulty premise — that, in Dobbs, the United States Supreme Court changed not only its interpretation of the United States Constitution but also the meaning of the Constitution itself. This could be true, however, only if (1) the United States Supreme Court, as opposed to the United States Constitution, is the source of the Constitution’s meaning or (2) the United States Supreme Court has the power not only to interpret the Constitution but also to amend it.... [B]oth of these propositions conflict with well-established, foundational principles of law that are essential to our system of government.

The case now goes back to the trial court for it to consider other challenges under the state constitution to the law.

Justice Ellington filed a dissenting opinion. WABE News reports on the decision. ACLU issued a press release reacting to the decision.