Michigan Governor Vetoes Bill Requiring Pro-Life License Plate

On June 30, Michigan Governor Rick Snyder vetoed SB 163 (full text), a bill that would have required the state to issue a fund-raising "Choose Life" license plate, with proceeds to be distributed to crisis pregnancy centers and similar pro-life non-profits.  In his Veto Letter (full text), the Governor said in part:

... SB 163 is not about a license plate; it's about the State of Michigan making a political statement. And that statement arouses strong emotional reaction that divides the residents of this state.

Detroit Free Press reports on the governor's action and response to it.

Germany's Bundestag Approves Same-Sex Marriage

As reported by BBC and the New York Times, on Friday Germany's Bundestag passed legislation permitting same-sex marriage.  Currently only civil unions are allowed for same-sex couples.  The vote was 393-226 with 4 abstentions.  Chancellor Angela Merkel, while voting against the change, told members of her governing coalition to vote on the issue according to their consciences. The legislation changes Germany's law to read: "Marriage is entered into for life by two people of different or the same sex."  The legislation must still be approved by the Bundesrat (the upper house of parliament) and signed by Germany's president, but neither of those steps appears to be in doubt.

Texas Supreme Court Keeps Life In Challenge To City's Same-Sex Couple Benefits

In a complex opinion, the Texas Supreme court has given two Houston taxpayer-voters another chance to challenge the legality of the city's extending spousal benefits to same-sex married couples.  At issue in Pidgeon v. Turner, (TX Sup. Ct., June 30, 2017), is the instructions on remand given by a state appeals court in reversing a trial court's temporary injunction against the city's action.  Plaintiffs' suit is based on the contention that Texas' Defense of Marriage Act still has residual effect and that the state appeals court incorrectly indicated to the trial court that the 5th Circuit's DeLeon decision invalidating the state's DOMA is binding on it.  The Texas Supreme Court agreed that the appeals court was incorrect in telling the trial court to proceed "consistent with" DeLeon:

We agree with Pidgeon that De Leon does not bind the trial court in this case and the court of appeals should not have instructed the trial court to conduct further proceedings “consistent with” De Leon. Penrod Drilling, 868 S.W.2d at 296.17 That does not mean, however, that the trial court should not consider De Leon when resolving Pidgeon’s claims. Fifth Circuit decisions, particularly those regarding federal constitutional questions, can certainly be helpful and may be persuasive for Texas trial courts. Moreover, De Leon could potentially affect the relief the trial court might provide on remand, since De Leon has enjoined the Governor from enforcing the Texas DOMAs and the State of Texas is thus providing benefits to state employees’ same-sex spouses. The trial court should certainly proceed on remand “in light of” De Leon, but it is not required to proceed “consistent with” it.

The Texas Supreme Court refused to reach another argument by plaintiffs that they have standing to seek a clawback of payments the city made to same-sex couples before the U.S. Supreme Court's Obergefell decision.  Plaintiff's cited the U.S. Supreme Court's Hobby Lobby decision, contending that as taxpayers they have been injured by the payments "because they are devout Christians who have been compelled by the mayor’s unlawful edict to subsidize homosexual relationships that they regard as immoral and sinful."  NPR reports on the decision.

Nominees Submitted For Head of Civil Rights Division and For EEOC Seat

Earlier this week, the White House announced President Trump's nomination of  Eric S. Dreiband to head the Civil Rights Division of the Department of Justice. As reported in an earlier Washington Post background piece, Dreiband, who is a partner in the Jones Day law firm, among other things has a master’s degree in theological studies (with a concentration in ethics and public policy) from Harvard University.  In the George W. Bush administration, Dreiband served as general counsel of the EEOC.  In 2015, he was one of the attorneys who represented Abercrombie & Fitch in its Supreme Court fight over the need to grant religious accommodation to a Muslim woman who wears a headscarf for religious reasons.  He was also one of the attorneys on the brief at the Court of Appeals level representing the Roman Catholic Archbishop of Washington in its 2014 challenge to the accommodation for religious non-profits who object to the Obamacare contraceptive coverage mandate.

Also, this week, the White House announced it has nominated Janet Dhillon for a seat on the Equal Employment Opportunity Commission. According to Law.com, Dhillon is currently general counsel for Burlington Stores, Inc.

New Hate Crime Data Released By DOJ

Yesterday the Justice Department's Bureau of Justice Statistics released (press release) a report on Hate Crime Victimization, 2004-2015. The data taken from its National Crime Victimization Survey showed that  on average 250,000 people per year were hate crime victims, and until 2015 a majority of these were not reported to police.  During 2011-2015, religious bias accounted for 17% of the perceived hate crimes. Racial bias accounted for 48%.

Church Sues Over Zoning Ruling On Use of Building For Christian School

A suit was filed this week in a Virginia federal district court challenging Spotsylvania County officials' contention that a Baptist church must obtain a special use permit in order for the education wing of the church to house an independent Christian high school whose mission is to provide classical education rooted in the tradition of Catholic teaching. The church says the school is one of its ministries and does not require further zoning approval. The complaint (full text) in Zoan Baptist Church v. Spotsylvania County, (ED VA, filed 6/28/2017) alleges that the county ordinance and the way it has been enforced infringes the church's rights under RLUIPA, as well as under the Establishment and Free Exercise clauses. Plaintiffs have also filed a Brief in Support of their motion for equitable relief. (Full text of brief).

Preliminary Injunction Refused: Settlement In Mosque Zoning Dispute Stands

In Youkhanna v. City of Sterling Heights, (ED MI, June 28, 2017), a Michigan federal district court refused to issue a preliminary injunction to prevent enforcement of a consent judgment entered into by the city of Sterling Heights.  The consent judgment allows the American Islamic Community Center to construct a mosque on land in the city.  Plaintiffs live near the mosque site.  Some are Chaldean Christians form Iraq and one is an Assyrian Christian from Syria.  They allege that their religious groups in Iraq and Syria have been subjected to violence by ISIS.  The court held that plaintiffs had not shown a likelihood of success on their constitutional and statutory claims regarding the validity of the consent judgment and the conduct of the meeting at which it was approved. (See prior related posting.)

Diocese and Parishes May Be Single Employer For Purposes of Title VII

In Clement v. Roman Catholic Diocese of Erie, (WD PA, June 16, 2017), a Pennsylvania federal magistrate judge refused to dismiss a Title VII sexual hostile work environment claim against two Catholic parishes and the Catholic Diocese of Erie.  Plaintiff served as Facilitator of Religious Education Programs in three parishes. In the case, the Diocese contended that plaintiff was employed only by the parishes, and the parishes claimed that individually each does not employ at least 15 individuals, the minimum number required before Title VII applies.  The court concluded that at this early stage of the litigation, evidence of the dual chain of command over defendant's position and the intermingling of parish and Diocese business affairs raises a reasonable expectation that discovery could reveal sufficient evidence to treat the Diocese and parishes as a single employer.  GoErie reports on the decision.

No Taxpayer Standing To Challenge North Carolina Conscience Law Excusing Magistrates From Performing Marriages

In Ansley v. Warren, (4th Cir., June 28, 2017), the U.S. 4th Circuit Court of Appeals dismissed on standing grounds an Establishment Clause challenge to North Carolina's Senate Bill 2 which allows state magistrates who have religious objections to same-sex marriage to recuse themselves from performing all marriages.  (See prior posting.)  The court said in part:

The outcome here is in no way a comment on same-sex marriage as a matter of social policy. The case before us is far more technical—whether plaintiffs, simply by virtue of their status as state taxpayers, have alleged a personal, particularized injury for the purposes of Article III standing. Based on a century of Supreme Court precedent, we conclude that they have not.

Asheville Citizen-Times reports on the decision.

Man Destroys New 10 Commandments Monument At Arkansas Capitol

As previously reported, on Tuesday a 6-foot tall granite replica of the Ten Commandments was installed on the grounds of the Arkansas State Capitol.  According to Arkansas Online, less than 24 hours later a 32-year old Arkansas man drove a vehicle into the monument, destroying it. Police have arrested Michael Tate Reed, charging him with defacing objects of public respect, trespassing on Capitol grounds and first-degree criminal mischief.  Reed apparently live streamed his actions on Facebook.  Apparently Reed is the same person who 3 years ago similarly destroyed a Ten Commandments monument on the Oklahoma statehouse grounds. (See prior posting.) State Senator Jason Rapert who sponsored the Arkansas legislation authorizing the monument says that a new monument has already been ordered.

Michigan Supreme Court Holds Ecclesiastical Abstention Doctrine Is Not Jurisdictional

In Winkler v. Marist Fathers of Detroit, Inc., (MI Sup. Ct., June 27, 2017), the Michigan Supreme Court held that the ecclesiastical abstention doctrine:

requires a case-specific inquiry that informs how a court must adjudicate certain claims within its subject matter jurisdiction; it does not determine whether the court has such jurisdiction in the first place.

The court explained:

What matters ...  is whether the actual adjudication of a particular legal claim would require the resolution of ecclesiastical questions....

With that understanding, the Supreme Court remanded the case to the Court of Appeals for it to decide whether Michigan's Persons With Disabilities Civil Rights Act applies to religious schools.  At issue in the case is a Catholic high school's denial of admission to a student who contends that the denial was because of her learning disability.

Judge Denies New Counsel to Murder Defendant Claiming Religious Conflict With Attorney

Wichita Eagle reported yesterday that a Kansas trial court judge has denied the request by a defendant in a murder case who wants new counsel.  Defendant Rachael Hilyard, charged with decapitating Micki Davis, the mother of her ex-boyfriend, says she has an extreme religious conflict with her attorney.  She says her lawyer will not get her a psychological evaluation.  In a letter to the court, Hilyard said in part:

The victim in my case was a Jehovas Witness. I think he is one as well.  I am Catholic & this was a crime of God. I am requesting a change of counsel..... On a different case, this would be irrelevant. However, I am Catholic & and the head of a Jehovas Witness was found in my kitchen sink. I think she may have been a high ranking member in this religion.

Davis' family says she was not a Jehovah's Witness.

In Unusual Church Autonomy Dispute, Catholic School Can Require Immunization of All Students

In a case with an unusual twist, a Florida state appeals court yesterday upheld the policy of a Catholic school requiring immunization of all students, even when a parent has religious objections to immunization.  In Flynn v. Estevez, (FL App., June 27, 2017), the appeals court held that under the church autonomy doctrine, a civil court cannot require a religious school to comply with the provision in Florida law that allows parents to object on religious grounds to immunization of their children. It said in part:

...[T]he application of the statutory exemption to the Diocese is problematic due to the intramural ecclesiastical kerfuffle that underlies this dispute. The Diocese has a religiously-based immunization policy with which one of its members disagrees; Mr. Flynn seeks the power of the State to compel the Diocese to depart from its point-of-view and admit his non-immunized son. But doing so would further his own religious views at the expense of the Diocese’s on the topic of immunizations. We are convinced that a secular court should not be making the judgment as to which side’s religious view of immunization is to be respected.... Unlike other church autonomy cases, the unique feature of this one is that both parties assert Catholic religious doctrine as the basis for their litigation positions, which cautions against a secular court wading into the squabble.... 

Mr. Flynn claims the Diocese’s vaccination policy must be actually rooted in a specific religion doctrine, tenet, or text, and that its “general concern about the ‘common good’” is a religiously ineffectual basis for invoking the abstention doctrine. Though the trial court wasn’t presented with the specific religious basis for the Diocese’s new policy, we find no fault in its conclusion that “immunizations of children attending Catholic schools is an issue of faith, discipline, and Catholicism [that] can only properly be determined by the church and not by the civil courts.” Courts are in no more of a position to compel the Diocese to provide a sufficient quantum of passable proof that its view of immunization is consistent with the Catholic faith than to do so as to Mr. Flynn’s personal views of Catholic doctrine on the very same subject.

News Service of Florida reports on the decision.

Florida Enacts Student Religious Liberty Law

On June 12, Florida Governor Rick Scott signed SB 436, the Florida Student and
School Personnel Religious Liberties Act (full text) (legislative history). The law becomes effective July 1.  As summarized by the Florida Department of Education:

The bill requires school districts to treat a student’s voluntary expression of a religious viewpoint on an otherwise permissible subject the same as the district treats a secular viewpoint.... The bill also requires districts to allow students to wear religious clothing, accessories and jewelry to the extent secular items with symbols or messages are also allowed.

The bill requires that students be allowed to pray or participate in religious activities or gatherings before, during and after school, to the same extent secular activities or clubs are allowed.... The bill requires school districts to give religious groups the same access to school facilities and ability to announce or advertise meetings as given to secular groups.

Finally, the bill requires all school districts to adopt a policy creating a limited public forum for student speakers at school events where students speak publicly and cannot discriminate against voluntary religious expression by a student on an otherwise permissible subject....

Ten Commandments Monument Erected On Arkansas Statehouse Grounds

NPR News reports that yesterday a 6-foot tall granite replica of the Ten Commandments was installed on the grounds of the Arkansas State Capitol.  In 2015, the state legislature enacted legislation authorizing the monument, to be financed privately. (See prior posting.)  State Senator Jason Rapert, the sponsor of the legislation, told reporters yesterday:

We have a beautiful Capitol grounds but we did not have a monument that actually honored the historical moral foundation of law. And today we have now, through the support of people all over the country, mostly from Arkansas, been able to erect this monument at zero taxpayer expense.

The ACLU says it will file suit to get the monument removed.

Supreme Court Remands School Aid Cases For Reconsideration In Light of Trinity Lutheran Decision

The U.S. Supreme Court yesterday, in light of its decision this week in Trinity Lutheran Church of Columbia, Inc. v. Comer, sent back to the lower courts for reconsideration school aid cases from Colorado and New Mexico.  All the cases remanded involved reliance on state Blaine amendments to invalidate aid to religious schools.  In three consolidated cases from Colorado, the Court granted certiorari, vacated the judgments below, and remanded to the Supreme Court of Colorado for further consideration. The Colorado cases are Doyle v. Taxpayers for Public Education, (Docket No. 15-556), Douglas City School District v. Taxpayers for Public Education,  (Docket No. 15-557), and Colorado State Board of Education v. Taxpayers for Public Education, (Docket No. 15-558). (June 27, 2017 Order List).  In the cases, the Colorado Supreme Court struck down Douglas County's elaborate Choice Scholarship Pilot Program. (See prior posting.)

In New Mexico Association of Nonpublic Schools v. Moses, (Docket No. 15-1409), the Supreme Court also granted certiorari, vacated the judgment and remanded to the Supreme Court of New Mexico for further consideration. In the case, the New Mexico Supreme Court struck down a New Mexico statute that allows the state to lend secular textbooks to private and parochial school students. (See prior posting.)

British Regulator Issues Guidance On Religious Beliefs In Pharmacy Practice

Britain's General Pharmaceutical Council, the regulator for pharmacists, pharmacy technicians and registered pharmacies in England, Scotland and Wales, this month issued a Guidance Document for pharmacy professionals titled In Practice: Guidance on Religion, Personal Values and Beliefs. Here is an excerpt from the document:

In some cases, a pharmacy professional’s religion, personal values or beliefs may influence their day-to-day practice, particularly whether they feel able to provide certain services.... 

Pharmacy professionals have the right to practise in line with their religion, personal values or beliefs as long as they act in accordance with equalities and human rights law and make sure that person-centred care is not compromised....

If a pharmacy professional is unwilling to provide a certain service, they should take steps to make sure the person asking for care is at the centre of their decision-making, so they can access the service they need in a timely manner and without hindrance.

[Thanks to Law & Religion UK for the lead.]

Court Says Kaporos Ceremony Not Covered By Unfair Competition Law

In Animal Protection and Rescue League, Inc. v. Chabad of Irvine, (CA Super. Ct., June 23, 2017) a California trial court ruled that a challenge by an animal rights group to the Jewish pre-Yom Kippur ritual of kaporos should be dismissed.   The suit alleged violations of California's Unfair Competition Law which prohibits unlawful business practices, contending that the manner in which chickens used in the ritual were kept, slaughtered and disposed of violates various state and local laws.  The court held however that the kaporos ceremony is not a "business act or business practice," explaining:

Chabad-Irvine's purchase of chickens for the participants to use in the ... Kaporos ritual does not transform its conduct from that of a synagogue meeting ... the religious and spiritual needs of the community to that of a commercial enterprise....

... [M]any religious services or ceremonies result in donations being solicited and made (e.g. when offering plates or baskets are passed among a congregation during a religious service...). But that does not convert those religious activities, rituals and observances into business practices.

First Liberty issued a press release announcing the decision and also provides links to the pleadings and court orders in the case. Orange County Register reported on the decision.

Georgia Supreme Court Dismisses On Standing Grounds Challenge To Tax Credit Scholarship Program

In Gaddy v. Georgia Department of Revenue, (GA Sup. Ct., June 26, 2017), the Georgia Supreme Court held that plaintiffs in the case lack standing as taxpayers or otherwise to challenge the constitutionality of Georgia's education tax credit program.  Under the program, taxpayers receive a dollar-for-dollar tax credit (up to specified limits) for contributions to student scholarship organizations set up to provide scholarships to students in private schools, both secular and religious.  The suit contended that the program violates the ban in the Georgia Constitution on providing public funds to aid any church, religious denomination or sectarian institution. The suit also alleged violations of other state constitutional and statutory provisions. Atlanta Journal Constitution reports on the decision.

Supreme Court: Same-Sex Spouses Must Get Equal Treatment In Birth Certificates

In Pavan v. Smith, (Sup. Ct., June 26, 2017), the U.S. Supreme Court today granted certiorari and summarily (i.e. without further briefing or oral argument) reversed a decision of the Arkansas Supreme Court on the rights of same-sex married couples. The Supreme Court held that "Obergefell’s commitment to provide same-sex couples 'the constellation of benefits that the States have linked to marriage'" means that the state must apply the same rules to same-sex and opposite-sex married couples in the issuance of birth certificates. Under Arkansas law, the male spouse of a woman who gives birth appeared on a birth certificate, but the female spouse of a woman who gives birth did not.  The Supreme Court struck this differentiation down, saying that in Arkansas birth certificates are more than just a marker of biological parentage.

Justice Gorsuch, in an opinion joined by Justices Thomas and Alito, dissented saying that this is an inappropriate case for summary reversal.