Teacher's Defamation Verdict Against Archdiocese Upheld

In Gallagher v. Archdiocese of Philadelphia, 2017 Phila. Ct. Com. Pl. LEXIS 148 (PA Com. Pl., April 11, 2017), a Pennsylvania Common pleas court upheld a $508,000 jury verdict in a defamation suit by a 6th grade "lay teacher" in a Catholic school against the Archdiocese of Philadelphia.  The school administration had accused plaintiff Cindy Gallagher of unethical teaching practices in connection with a study guide she compiled to prepare her students for a standardized test. The court held that it was not required to defer to religious authorities because "the cheating incident was not conceived as an ecclesiastical matter only appropriate for religious resolution." It also concluded that the "ministerial exception" doctrine does not apply because Gallagher was a lay teacher, saying in part:

labeling Appellee as a minister of the church based on her role in prayer with her students and her participation in obtaining mandatory religious credits to be a teacher at the school would expand the scope of the ministerial exception beyond its intended purpose.

6th Circuit: Damage Action Against Kim Davis Is Not Moot

In Ermold v. Davis, (6th Cir., May 2, 2017), the U.S. 6th Circuit Court of Appeals reinstated a damage action against Rowan County, Kentucky Clerk Kim Davis brought by a same-sex couple who had been denied a marriage license by Davis.  The district court had dismissed the case because subsequent legislative action and an Executive Order by the governor assured that marriage licenses are now being issued to same-sex couples. The court held, however, that where a suit only seeks damages for past injury, a change in defendant's conduct does not moot the controversy.  Judge Siler also filed a concurring opinion emphasizing that the district court still might find that Davis was protected by Kentucky's Religious Freedom Restoration Act. [Thanks to Tom Rutledge for the lead.]

Senate Committee Holds Hearing on Religious Hate Crimes

Yesterday the U.S. Senate Judiciary Committee held a hearing on Responses to the Increase in Religious Hate Crimes.  Transcripts of the prepared statements presented by 5 witnesses as well as by Senator Chuck Grassley are available on the Committee's website.

Trump Administration Asks Court For Time To Reconsider Enjoined HHS Ruling on Transgender Rights

As previously reported, in December a Texas federal district court issued a nationwide preliminary injunction barring enforcement of a regulation issued by the Obama administration under the Patient Protection and Affordable Care Act that prohibits discrimination on the basis of gender identity or termination of pregnancy in health care programs that receive federal financial assistance. Yesterday the Department of Health and Human Services (HHS) filed a motion (full text) with the court asking that instead of moving ahead with briefing in the case, the court, while keeping its injunction in place, remand the matter to HHS for it to reconsider the rule.  The government argued in its motion that Trump Administration leadership should now "be given an opportunity to reevaluate the regulation and address the issues raised in this litigation."  Rewire reports on developments. This is one of a number of cases in the courts raising the question of whether civil rights laws that ban discrimination on the basis of "sex" cover discrimination on the basis of gender identity. (See prior posting.)

Suit Over Ownership of Astronauts' Bibles Is Settled

AP reports that last week, ahead of a hearing that had been scheduled by an Oklahoma state trial court for today, the Texas Department of Aging and Disability Services withdrew its claim of ownership to ten microfilm Bibles that Apollo 14 astronauts took with them into space in 1971.  The 6-year legal battle over ownership ended as the court last Friday awarded ownership to Tulsa author and businesswoman Carol Mersch who said the postage-stamp size Bibles had been given to her by NASA Chaplain John M. Stout while she was writing a book about the chaplain's work. Texas had claimed the Bibles should go to Stout's son who became a ward of the state in his later years.  Mersch says she will comply with Chaplain Stout's wishes and donate some of the Bibles to museums or seminaries around the world.

Namibian Court Says Members of Jehovah's Witness Order Are "Employees"

A Labour Court in Windhoek, Namibia last week held that members of the Worldwide Order of Special Full-Time Servants of Jehovah's Witnesses should be treated as "employees" under the country's Labour Act and Social Security Act.  Classifying the Congregation of Jehovah's Witnesses of Namibia as an employer means that it must provide maternity and sick leave payments for members of the Order. According to The Namibian yesterday:

Acting judge Unengu noted in his judgement that although the congregation and members of the order did not sign written employment contracts with each other, members of the order completed application forms to become a member in order to serve the church in a full-time capacity.

Once accepted as a member, they are also required to take a vow of obedience and poverty, which is taken to be an indication that they are prepared to live a modest lifestyle and to perform any tasks assigned to them by the order. Members of the order are also required to abstain from outside employment.

Acting judge Unengu further noted that members of the order had fixed hours of service from Mondays to Fridays and received a monthly allowance of about N$940.

Suit Challenges Funeral Home's LGBT Discrimination

A suit filed in March in a Mississippi state trial court against a Picayune, MS funeral home attracted attention yesterday after Lambda Legal issued a press release describing the case.  The complaint (full text) in Zawadski v. Brewer Funeral Services, Inc., (MS Cir. Ct., filed 3/7/2017), alleges that after the death of Robert Huskey, defendant funeral home backed out of its agreement to provide post-mortem transportation and cremation services for his body because it learned that he was a gay man whose next of kin was his lawful husband.  The funeral home's only explanation was that it did not "deal with their kind." The suit alleges infliction of emotional distress, breach of contract and misrepresentation.  Reporting on the lawsuit, WCYB News points out that Mississippi's Protecting Freedom of Conscience from Government Discrimination Act, which protects the refusal to provide goods or services on the basis of various religious and moral beliefs, has been enjoined while its constitutionality is litigated. The 5th Circuit heard arguments in the case last month. (See prior posting.)

Defamation Suit Against Minister Not Necessarily Barred By Ecclesiastical Abstention Doctrine

Lippard v. Holleman, (NC App., May 2, 2017) is a case in which plaintiff Kim Lippard who was fired as church pianist and vocalist in a Baptist church where she had served for 34 years sued the church's senior minister and its minister of music for defamation. Her husband also sued. Kim's firing ultimately went through the board of deacons, the church's personnel committee and then was referred to a meeting of the entire congregation.  It was alleged, among other charges, that at the meeting the senior minister read a "twenty page diatribe" against Kim and her husband.  In the case, the court of appeals vacated the trial court's dismissal of the suit, in part on procedural grounds.  But the court also refused to conclude that the ecclesiastical abstention doctrine required dismissal of the suit, saying in part:

Our courts have not yet considered whether a statement issued by a religious leader or made from the pulpit creates an actionable defamation claim capable of adjudication under neutral principles of tort law. However, several federal courts and out-of-state courts have confronted this question and concluded the First Amendment does not create a categorical bar to such defamation claims....

This line between an ecclesiastical and a secular dispute can be difficult to discern, and requires an intensive inquiry into the relevant facts and applicable laws. Defamation and religious questions are legally contextual. Libel may sometimes cloak itself in religious terminology, but that would not prevent civil adjudication of a claim.

Judge Recuses Himself Over Conscientious Objection To Gay Adoptions

The Louisville Courier Journal last week reported on Kentucky Family Court Judge W. Mitchell Nance who issued an order last Thursday stating that he will recuse himself from all adoption proceedings involving "homosexual parties." His order explains that "as a matter of conscience" he believes that "under no circumstance" would "the best interest of the child be promoted by the adoption by a practicing homosexual." He cited judicial ethics rules that require a judge to recuse himself when he has a personal bias or prejudice.

Satanic Temple Will Erect War Memorial In Park's Free Speech Zone

The Minneapolis Star Tribune last week reported on the controversy in Belle Plaine, MN over a war memorial in a city park. The memorial includes a 2-foot tall cross. After a complaint about the religious symbol on public property, the city initially ordered the cross removed. But then protesters who wanted the cross to remain occupied the park each day.  The city relented, but to meet constitutional objections it designated a small area in the park as a "free speech zone" where up to ten temporary memorials to honor veterans will be allowed. The first organization to apply was the Satanic Temple, and it will now erect a memorial to honor non-religious soldiers. The memorial be a black cube inscribed with inverted pentagrams with an upturned helmet on top.

Cert. Denied In Challenge To California Sexual Orientation Therapy Ban

The U.S. Supreme Court yesterday denied review in Welch v. Brown (Docket No., 16-845, cert. denied 5/1/2017). (Order List.) In the case, the 9th Circuit rejected facial free exercise and Establishment Clause challenges to California's ban on state-licensed mental health professionals providing "sexual orientation change efforts" for patients under 18. (9th Circuit's amended opinion dated Oct. 3, 2016). (SCOTUSblog case page.)

Trump Declares May As Jewish American Heritage Month

The Times of Israel and JTA both report that on Friday President Trump issued a Proclamation designating May as Jewish American Heritage Month.  Similar Proclamations have been issued by presidents since 2006.  The Proclamation, which specifically mentions Trump's daughter Ivanka, his son-in-law Jared and his grandchildren all of whom are Jewish, reads in part:

During Jewish American Heritage Month, we celebrate our nation’s strong American Jewish heritage, rooted in the ancient faith and traditions of the Jewish people. The small band of Dutch Jews who first immigrated in 1654, seeking refuge and religious liberty, brought with them their families, their religion, and their cherished customs, which they have passed on from generation to generation.

When the full text of the Proclamation becomes available on the White House website, I will link to it.

UPDATE: Here is the full text of the Proclamation.

Zogby's Dissent In the USCIRF Annual Report

As previously reported, last week the U.S. Commission on International Religious Freedom issued its 2017 Annual Report.  It turns out that buried in the Report-- i.e. not listed in the Table of Contents-- were a "dissenting statement" by Vice Chair James Zogby (pg. 17 of Report), a joint "additional statement" by 7 of the Commissioners (pg. 20 of Report), an "additional statement" by Vice Chair Daniel Mark (pg. 21 of Report), and an "additional statement" by Commissioner John Ruskay (pg. 21 of Report).  Commissioner Zogby's dissent-- which has two parts-- has generated the most interest.  The media (JTA, Mondoweiss, and a Huffington Post column by Zogby himself) focused on Zogby's complaint that a narrow majority of Commissioners refuse to examine the issue of religious freedom in Israel and the Palestinian territories.

Equally interesting, however, is Zogby's broader critique of the manner in which USCIRF operates. He says in part:

I believe that part of the reason why we have not been able to contribute to improving the situation of vulnerable faith communities is because of how we have interpreted our mandate. Instead of serving as a bipartisan group of experts making informed recommendations to the Administration and Congress—as was envisioned by IRFA—we have acted more like a Congressionally-funded NGO that issues a variety of materials “naming and shaming” countries that violate religious freedom.

I believe that instead of using our limited resources to produce opinion pieces, press releases, and a lengthy and duplicative annual report, and acting as a “critic” of the Executive Branch, USCIRF should consider new and constructive approaches to its work in order to more effectively promote international religious freedom. Instead of simply making do with “naming and shaming” the many countries that violate religious freedom, we should develop a more focused approach that involves making an in-depth study of a few targeted countries so that we might be in a position to provide the Administration and Congress with creative problem-solving ideas where improvements in religious freedom can be made....

In too many instances, we have failed to distinguish between actual violations of religious freedom and sectarian, regional, or tribal struggles for political power. Too often, in the past, some have engaged in reductionist analysis—seeing everything as a nail, because the only tool we wield is a hammer. In failing to understand the complexity and non-religious underpinnings of conflicts, like those in Nigeria, Iraq, or the Central African Republic, our analysis and recommendations sometimes miss the mark. Religious conflict is not the cause of tension in these countries and, therefore, religious freedom is not the solution to their problems.

Some have expanded this reductionism to extreme and even absurd lengths, claiming that if, as they maintain, religious freedom is “the first freedom,” then all else flows from it. They correctly observe a correlation between religious freedom and prosperity and democracy in some countries, but then mistakenly attribute the latter to the former. In fact, a more convincing case can be made that prosperity and democracy are the prerequisites for religious freedom. In other instances, they have attempted to make the case that religious extremism only originates in countries that violate religious freedom. This patently false conclusion ignores the reality of home-grown extremist religious movements in Western Europe or the United States. 

Recent Articles of Interest

From SSRN:

• Jonas J Monast, Brian C. Murray & Jonathan B. Wiener, On Morals, Markets, and Climate Change: Exploring Pope Francis' Challenge, (Law and Contemporary Problems, Vol. 80, 2017).
• Jonathan F. Will, I. Glenn Cohen & Eli Y. Adashi, Personhood Seeking New Life with Republican Control, (Indiana Law Journal, Forthcoming).
• Tara A. Smith, Religious Liberty or Religious License? Legal Schizophrenia and the Case against Exemptions, (Journal of Law and Politics, Vol. 32, Fall 2016).
• Tara A. Smith, What Good Is Religious Freedom? Locke, Rand, and the Non-Religious Case for Respecting It, (Arkansas Law Review, Vol. 69, No. 4, 2017).
• Michael J. Perry, A Global Political Morality: Human Rights, Democracy, and Constitutionalism, (Emory Legal Studies Research Paper 17-431 (2017)).
• Jonathan F. Will, Religion As a Controlling Interference in Medical Decision-Making by Minors, (October 19, 2016).
• Sarah Khanghahi, Thirty Years after Al-Khazraji: Revisiting Employment Discrimination Under Section 1981, (64 UCLA Law Review 794 (2017).

From SSRN (Non-U.S. Law):

• Atta Ul Mustafa, Proposed Procedural Amendments to Check Misuse of Blasphmey Laws in Pakistan, (July 4, 2016).
• Matthew S. Erie, The Traveling Waqf: Property, Religion, and Mobility Beyond China, (Islamic Law and Society, Vol. 25, (1-2, Special Issue on Waqfs) (February 2018)).
• Paul Johnson & Robert M. Vanderbeck, Sexual Orientation Equality and Religious Exceptionalism in the Law of the United Kingdom: The Role of the Church of England, (April 25, 2017).
• Dwight G. Newman, Ties that Bind: Religious Freedom and Communities (Introduction), (in Dwight Newman, ed., Religious Freedom and Communities (Toronto: LexisNexis, 2016)).
• Darren Rosenblum, Sex Quotas and Burkini Bans, (Tulane Law Review, Vol. 92, 2017).

From SmartCILP:

• Herman D. Hofman, For Richer or For Poorer: How Obergefell v. Hodges Affects the Tax-Exempt Status of Religious Organizations that Oppose Same-Sex Marriage, 52 Gonzaga Law Review 21-57 (2016/17).
• 2015 Richard J. Childress Memorial Lecture: Religious Freedom, Social Justice and Public Policy. Keynote lecture by Lawrence G. Sager; contributions by Christopher C. Lund, Matthew T. Bodie, Elizabeth Sepper, Jeffrey A. Redding and B. Jessie Hill. 60 St. Louis University Law Journal 585-710 (2016).

Europe's Parliamentarians Promote Rights of Parents and Children of Religious Minorities

The Parliamentary Assembly of the Council of Europe (PACE) on April 27 adopted a Resolution (full text) on The Protection of the Rights of Parents and Children Belonging to Religious Minorities. The Resolution provides in part:

The landscape of religious communities in Europe is complex and evolving, with traditional beliefs spreading beyond their historical territory and new denominations emerging. Such an environment has the potential to render families belonging to religious minorities ostracised for their views and values in contexts where there is a dominant majority that holds conflicting views....

 5. The Assembly therefore calls on all member States of the Council of Europe to protect the rights of parents and children belonging to religious minorities by taking practical steps, legislative or otherwise, to:

5.1. affirm the right to freedom of thought, conscience and religion for all individuals, including the right not to adhere to any religion, and protect the right of all not to be compelled to perform actions that go against their deeply held moral or religious beliefs, while ensuring that access to services lawfully provided is maintained and the right of others to be free from discrimination is protected;

5.2. promote reasonable accommodation of the deeply held moral or religious beliefs of all individuals in cases of serious conflict to enable citizens to freely manifest their religion or belief in private or in public, within the limits defined by legislation and provided that this is not detrimental to the rights of others;

5.3. repeal any law or rule which establishes a discriminatory distinction between religious minorities and majority beliefs;

5.4. ensure easy-to-implement options for children or parents to obtain exemptions from compulsory State religious education programmes that are in conflict with their deeply held moral or religious beliefs; such options may include non-confessional teaching of religion, providing information on a plurality of religions, and ethics programmes.

Background of the Resolution can be found in the Explanatory Memorandum filed as part of the report by the Committee on Equality and Non-Discrimination. [Thanks to Law & Religion UK for the lead.]

Recent Prisoner Free Exercise Cases

In Jackson v. Sullivan,(9th Cir., April 12, 2017), the 9th Circuit affirmed the dismissal of an inmate's RLUIPA complaint regarding restrictions on the wearing of dreadlocks. UPDATE: An amended opinion in the case was filed June 8, 2017.

In Clark v. Dodd, 2017 U.S. Dist. LEXIS 62589 (MD TN, April 25, 2017), a Tennessee federal district court permitted a Muslim inmate to move ahead with his complaint that he was not delivered his package that contained a prayer rug, prayer cap, Quran and prayer oil.

In State Department of Corrections v. Todd, 2017 Tenn. App. LEXIS 223 (March 31, 2017), a Tennessee appellate court rejected an inmate's argument that his religious freedom rights were violated when authorities appointed a limited medical conservatorship to consent to forcible treatment with psychotropic drugs.

In Grant v. Scalia, 2017 U.S. Dist. LEXIS 56242 (ED CA, April 12, 2017), a California federal magistrate judge dismissed with leave to amend ad Muslim inmate's complaint that rules requiring cell windows to be uncovered at all times interfered with his religious belief that he cannot appear naked in front of other men.

In Ross v. Director Butler County Detention Center, 2017 U.S. Dist. LEXIS 55976 (D KA, April 10, 2017), a Kansas federal district court dismissed a Muslim inmate's complaint that authorities denied his request for a special Muslim diet during most of Ramadan, and deprived him of the right to group prayer during Ramadan.

In Burns v. Buncich, 2017 U.S. Dist. LEXIS 55590 (ND IN, April 11, 2017), an Indiana federal district court held that material issues of fact an credibility that can only be resolved by a jury remain as to a Jehovah's Witness inmate's claims that authorities discriminated against Jehovah's Witnesses in access to the chapel for group worship and in his ability to consult with ministers.

Challenge To Pennsylvania Legislative Prayer Practices Survives Motion To Dismiss

In Fields v. Speaker of  the Pennsylvania House of Representatives, (MD PA, April 28, 2017), a Pennsylvania federal district court in a 33-page opinion refused to dismiss on the pleadings an Establishment Clause challenge to the Pennsylvania House of Representatives invocation policy.  House members may nominate "guest chaplains" to deliver an invocation at the beginning of a House session.  However House rules, as administered by the Speaker, do not permit non-theists to serve as guest chaplains. Plaintiffs are atheists, agnostics, secular humanists and freethinkers who have been denied the opportunity to deliver an invocation.  According to the court:

Plaintiffs plead a policy of religious discrimination sufficient to state a First Amendment claim.

Whether history and tradition sanctify the House‟s line of demarcation between theistic and nontheistic chaplains is a factual issue for a later day. Establishment Clause issues are inherently fact-intensive, and we must resist the academic intrigue of casting the salient inquiry too narrowly at this juncture. To the extent the parties‟ arguments evoke more nuanced constitutional questions— e.g., whether plaintiffs practice “religion” and are capable of “praying,” or whether tradition dictates that legislative prayer address a “higher power”—any such determination demands, and deserves, a fully developed record. As it stands, plaintiffs‟ challenge to the House‟s legislative prayer policy survives Rule 12 scrutiny.

The court also permitted two of the plaintiffs to move ahead with their challenge to the requirement that members of the public in attendance stand during the invocation.  On one occasion the Speaker publicly singled out plaintiffs for remaining seated.

The Court dismissed Free Exercise, Free Speech and Equal Protection challenges to the prayer policy, finding that legislative prayer is "government speech."

Arkansas Disorderly Conduct Law Upheld Against Abortion Protesters

In Duhe v. City of Little Rock, Arkansas, (ED AR, April 27, 2017), an Arkansas federal district court upheld the constitutionality of Arkansas' disorderly conduct statute in a suit by two participants in a pro-life event known as Operation Save America. One of the participants was president of a Christian organization, Spirit One. The participants interfered with traffic flow in a clinic parking lot, while using a microphone and loudspeaker to present their views.  Their activity disturbed businesses in the area.  The court held that the disorderly conduct statute under which the two men were charged is neither vague nor overbroad, and is a permissible content-neutral time, place and manner regulation.

India's Supreme Court To Hear Constitutional Challenge To Personal Status Laws

NewsClick yesterday carried a lengthy article surveying the background and importance of the Shayara Bano case which will be heard by a 5-judge panel of India's Supreme Court next month.  At issue is whether laws involving personal status which are governed in India by separate legal codes for different religious groups are subject to the fundamental rights protections of India's Constitution.  In this case, the issue is whether Muslim divorce through "Triple Talaq", a practice invoked pursuant to the Muslim Personal Law (Shariat) Application Act (1937), violates women's rights to equality, life and dignity. The article summarizes in part:

In the triple talaq case the Supreme Court is confronted with this question yet again and it remains to be seen if they will decide the question or dodge it by saying that Islam itself does not recognize triple talaq and hence, there is no need to decide the larger issue of whether personal laws are amenable to constitutional checks and challenges. What is at stake is not just Muslim Personal Law but all laws governing marriage and divorce, including Hindu Law. Will the ruling party that is moving towards a Hindutva State, allow such a challenge is the question. For now the Union of India has committed itself to the challenge but may remain content with the striking down on the ground that it is un-Islamic as some groups have argued. There is a lot riding on this case, not just talaq. The issues are fundamental to constitutional gender justice for all women.

Roy Moore Announces Run For U.S. Senate Seat From Alabama

In Alabama this week, Roy Moore who has been suspended for the rest of his term as Chief Justice of the Alabama Supreme Court because of his defiance of same-sex marriage rulings (see prior posting) announced that he will formally resign from his judicial position in order to run for the United States Senate.  The Republican primary for the seat is scheduled for August (with a potential run off in September). The special election itself is scheduled for December 12.  The Senate seat initially opened up when former Senator Jeff Sessions was appointed U.S. Attorney General. According to AL.com, Moore will face several opponents in the primary, including incumbent Sen. Luther Strange who was appointed on an interim basis to Sessions' seat by Alabama Gov. Robert Bentley, and Dr. Randy Brinson, president of the Christian Coalition of Alabama.  In his announcement, Moore said in part: "My position has always been God first, family then country. I share the vision of President Donald Trump to make America great again."