Pastor's Breach of Contract Suit Dismissed on Ecclesiastical Abstention Grounds

In Craver v. Faith Lutheran Church, (TX App., Nov. 8, 2023), a Texas state appeals court held that the ecclesiastical abstention doctrine requires dismissal of a pastor's suit for breach of contract and fraudulent inducement brought against the church that was his former employer. After the church's executive board received complaints against the pastor, the church entered a severance agreement with the pastor. The pastor contends that the agreement included an assurance that the allegations against him would not be spread throughout the congregation. The court said in part:

Craver argues his case presents a “run-of-the mill” civil dispute, which can be resolved by application of neutral principles of law and without reference to religious matters. He contends: “While Faith Lutheran’s decision to terminate [him] is generally unreviewable, [his] claims have nothing to do with that and are instead about Faith Lutheran’s obligations under a secular, civil contract not to make certain statements.”

We disagree that church matters can be so cleanly and completely severed. Instead, the substance and nature of Craver’s fraudulent inducement and breach of contract claims are “inextricably intertwined” with matters of Faith Lutheran’s church governance.... [B]oth claims rely on circumstances surrounding contract formation and it is those circumstances which implicate the ecclesiastical abstention doctrine...

[W]e cannot untwine recommendations Church executives made in the course of church governance from the allegedly fraudulent representations that form the basis of Craver’s lawsuit.

Exclusion of Jurors Who Have Conscientious Objection To Death Penalty Does Not Violate Free Exercise Clause

 In State of Louisiana v. Neveaux, (LA App., Nov. 8, 2023), a Louisiana state appeals court rejected a free exercise challenge to a provision in the Louisiana Code of Criminal Procedure that permits the prosecution in a capital case to challenge for cause a juror "who has conscientious scruples against the infliction of capital punishment" and makes it known that for this reason he would automatically vote against imposing capital punishment or that his beliefs would substantially impair him from making an impartial decision. The court, rejecting the contention that there must be a compelling state interest to support this provision concluded in part:

[W]e find that La. C.Cr.P. art. 798(2)(a) and (b) is neutral and generally applicable because (1) it does not focus on a particular religion or religion at all, and (2) it applies to anyone regardless of the source of his or her views on the death penalty.

Suit Challenges Michigan's Reproductive Freedom Amendment on Federal Constitutional Grounds

In November 2022, Michigan voters passed a state constitutional amendment providing a right to reproductive freedom. Yesterday a group of plaintiffs filed suit in a Michigan federal district court contending that the state constitutional amendment violates the 1st and 14th Amendments to the federal Constitution, as well as the Constitution's Guarantee Clause. Among the 16 plaintiffs is "Jane Roe, a fictitious name on behalf of preborn babies." The complaint (full text) in Right to Life of Michigan v. Whitmer, (WD MI, filed 11/8/2023), alleges in part:

By reason of Article I, § 28 of the Michigan Constitution ..., Defendants have deprived Plaintiffs, specifically including women, and in particular pregnant women; preborn human beings, including Jane Roe and similarly situated individuals; preborn human beings with disabilities; partially born human beings; and human beings born following a failed abortion of the equal protection of the law guaranteed under the Fourteenth Amendment....

 Article I, § 28 permits individuals, including public school officials, medical professionals, and others, to aid or assist a minor child with procuring an abortion, obtaining contraception, obtaining “gender reassignment” medication or procedures, and becoming sterilized without parental knowledge or consent and with impunity in violation of Plaintiffs’ parental rights protected by the Fourteenth Amendment.

... Article I, § 28 permits adults to engage in sexual acts with minors so long as the minor consents, thereby undermining the right of parents to direct the upbringing of their children in violation of Plaintiffs’ parental rights protected by the Fourteenth Amendment....

Article I, § 28 nullifies all statutory protection provided to physicians and other medical professionals ... who object to abortion, contraception, “gender reassignment” medication/procedures, sterilization, puberty blockers, and other harmful medical procedures related to “reproduction” on moral and religious grounds in violation of their sincerely held religious beliefs....

Article I, § 28 deprives preborn human beings, including Jane Roe and similarly situated individuals, preborn human beings with disabilities, partially born human beings, and human beings born following a failed abortion of the right to life and liberty without due process of law....

Article I, § 28, which was passed pursuant to the process of amending the Michigan Constitution, nullifies the legitimate authority of a coordinate branch of government, the Legislative Branch, by prohibiting it from regulating or governing in a broad area of the law (“reproduction”) that has historically been within its legitimate domain in violation of the Guarantee Clause of the United States Constitution....

Right To Life Michigan issued a press release announcing the filing of the lawsuit. Detroit News reports on the lawsuit.  [Thanks to Scott Mange and Thomas Rutledge for the lead.]

DOE Reminds Schools of Duty to Protect Against Antisemitic and Islamophobic Discrimination

The U.S. Department of Education's Assistant Secretary for Civil Rights issued a "Dear Colleague" letter on Tuesday in response to rising levels of antisemitic and Islamophobic incidents at schools and colleges since the October 7 Hamas attack on Israel. (Press release). The letter (full text) says in part:

I write to remind colleges, universities, and schools that receive federal financial assistance of their legal responsibility under Title VI of the Civil Rights Act of 1964 and its implementing regulations (Title VI) to provide all students a school environment free from discrimination based on race, color, or national origin, including shared ancestry or ethnic characteristics. It is your legal obligation under Title VI to address prohibited discrimination against students and others on your campus—including those who are or are perceived to be Jewish, Israeli, Muslim, Arab, or Palestinian—in the ways described in this letter....

Schools that receive federal financial assistance have a responsibility to address discrimination against Jewish, Muslim, Sikh, Hindu, Christian, and Buddhist students, or those of another religious group, when the discrimination involves racial, ethnic, or ancestral slurs or stereotypes; when the discrimination is based on a student’s skin color, physical features, or style of dress that reflects both ethnic and religious traditions; and when the discrimination is based on where a student came from or is perceived to have come from, including discrimination based on a student’s foreign accent; a student’s foreign name, including names commonly associated with particular shared ancestry or ethnic characteristics; or a student speaking a foreign language.

6th Circuit Rejects Equal Protection Challenge To Michigan Ban On Public Funds for Private and Religious Schools

In Hile v. State of Michigan, (6th Cir., Nov. 6, 2023), the U.S. 6th Circuit Court of Appeals held that an amendment placed in the Michigan Constitution in 1970 that prohibits public funds from being used to aid private or religious schools does not violate the equal protection rights of parents who cannot use Michigan Educational Savings Program to send their children to religious schools. Plaintiffs contended that the state constitutional provision was motivated by anti-Catholic bias and based their equal protection claim on the political process doctrine. As articulated by the court:

They claim that because of the amendment, religious persons and schools cannot lobby their state representatives for governmental aid or tuition help without first amending the state constitution, which they argue disadvantages them in the political process.

The court first expressed doubt about the continued viability of the political process doctrine, and particularly whether a political process claim can be based on religious discrimination.  The court went on to hold that regardless of that, a 2000 election in which voters reauthorized the 1970 Amendment purged the provision of any religious bias that was present in the 1970 vote.

Justice Murphy dissented, contending that plaintiffs' clam should be dismissed without prejudice for lack of plaintiffs' standing.

RFRA and Title VII Claims for Refusing Religious Exemption from Covid Vaccine Mandate Can Proceed

In Snyder v. Chicago Transit Authority, (ND IL,  Nov. 6, 2023), an Illinois federal district court allowed plaintiff, who was denied a religious exemption from his former employer's Covid vaccine mandate, to move ahead with his claims under Title VII and under the Illinois Religious Freedom Restoration Act. The court however dismissed seven other claims brought under a number of other statutory and regulatory provisions.

NY Court Rules That Parent Body Is Entitled to Possession of Hare Krishna Temple

Kelley v. Gupta, (Sup.Ct. Nassau Cty. NY, Oct. 25, 2023), involves a dispute between two factions of the Hare Krishna movement over control of a temple in Freeport, New York. In this decision a New York state trial court concluded that The Governing Body Commission of the International Society for Krishna Consciousness ("GBC") is the highest ecclesiastical authority in the Krishna movement, and upheld GBC's expulsion of defendant for engaging in religious practices that are contrary to the teachings of the religion. The court said in part:

GBC has established that ISKCON Global is a religion that operates under a hierarchical system, whereby local temples are subject to review and control by the GBC and its ascending order of authority.... The GBC has continued to pass laws and make rulings on various ISKCON Global issues including religious practices and the management of properties. Among these rulings were the Resolutions prohibiting ritvik theory as "a dangerous philosophical deviation," and the expulsion of those who practiced ritvikism, including the defendant and Mr. Garuda. Accordingly, complete deference must be afforded to the GBC's decision making authority in ecclesiastical matters, and any final decisions of the GBC in such matters are therefore binding on this Court....

The court concluded that trustees of ISKCON "are entitled to immediate possession of the Freeport Temple premises and property belonging to the Temple, including but not limited to deities...."

Ohioans Vote On Reproductive Rights Amendment

In Ohio today, voters are casting ballots on State Issue 1 that, if approved will add the following to the Ohio Constitution:

Article I, Section 22. The Right to Reproductive Freedom with Protections for Health and Safety

A. Every individual has a right to make and carry out one’s own reproductive decisions, including but not limited to decisions on:
1. contraception;
2. fertility treatment;
3. continuing one’s own pregnancy;
4. miscarriage care; and
5. abortion.

B. The State shall not, directly or indirectly, burden, penalize, prohibit, interfere with, or discriminate against either:

1. An individual's voluntary exercise of this right or

2. A person or entity that assists an individual exercising this right,

unless the State demonstrates that it is using the least restrictive means to advance the individual's health in accordance with widely accepted and evidence-based standards of care.

However, abortion may be prohibited after fetal viability. But in no case may such an abortion be prohibited if in the professional judgment of the pregnant patient’s treating physician it is necessary to protect the pregnant patient’s life or health.

C. As used in this Section:

1. “Fetal viability” means “the point in a pregnancy when, in the professional judgment of the pregnant patient's treating physician, the fetus has a significant likelihood of survival outside the uterus with reasonable measures. This is determined on a case-by-case basis.”

2. “State” includes any governmental entity and any political subdivision.

D. This Section is self-executing.

Ballotpedia has additional information on the proposed amendment. Live election results will be available here.

UPDATE: With 84% of the precincts reporting, the measure has passed 55.6% to 44.4%.

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:

• Ecoraa Jahan, The Logistical Breakdown of Abortion Restrictions and Their Impact on Women’s Bodily Autonomy Rights (October 26, 2023).
• Fatima Idrees, Comparative Study: Mortgage Law under Transfer of Property Act, 1882 and Shariah Law, (October 13, 2020).
• Goran Šimić, War Crimes and Spirituality: To Prosecute or to Forgive and Reconcile, (Law and Safety 2023. No. 3 (90)).

From SmartCILP:

• Arthur S. Leonard, Same-Sex Family Recognition and Anti-Discrimination Law: A Free Speech Battleground, 56 Family Law Quarterly 161-174 (2023).
• David Y.K. Kwok, ASEAN Dispute Settlement and the Temple of Preah Vihear, 2023 Journal of Dispure Resolution 90-115 (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.

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.]

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.

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.                                                                                                              

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.]