1st Circuit: Historic Rhode Island Synagogue Owned By New York Congregation

In a decision handed down yesterday, the U.S. 1st Circuit Court of Appeals reversed a Rhode Island federal district court (see prior posting) and held that Rhode Island's historic Touro Synagogue is owned by New York's Shearith Israel congregation. In Congregation Jeshuat Israel v. Congregation Shearith Israel, (1st Cir., Aug. 2, 2017), the court also concluded that a pair of historic silver Torah ornaments worth some $7 million are also owned by the New York congregation.  Retired Supreme Court Justice David Souter, sitting by designation on the case, wrote the opinion for the court, saying that the court should rely on the parties' own agreements which are the "instruments customarily considered by civil courts."  He said in part:

The district court approached the competing claims ... by a conscientious and exhaustive historical analysis.... Much of that history reflected, albeit without directly addressing, the doctrinal tensions between the CSI congregation, committed to preserving Sephardic practice at Touro, and the later Newport congregation that emerged from the 19th century immigration, which included a significant Ashkenazic element. The district court was scrupulous in avoiding any overt reliance on doctrinal precepts....

Nonetheless, the court's historical investigation was unavoidably an immersion in the tensions between two congregations that were not doctrinally identical.... These are circumstances in which we think that the First Amendment calls for a more circumscribed consideration of evidence than the trial court's plenary enquiry into centuries of the parties' conduct....

AP reports on the decision.

South Carolina Supreme Court Resolves Property Dispute In Episcopal Church

In The Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (SC Sup. Ct., Aug. 2, 2017), the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages resolved a property dispute that arose after a split in the Episcopal Church in South Carolina. AP summarized the background:

The conservative Diocese of South Carolina, dating to 1785 and one of the original dioceses that joined to form the Episcopal Church, left the national church in 2012 amid differences over theological issues, including the authority of Scripture and the ordination of gays. The group has since affiliated with the Anglican Church in North America, a group that formed in 2009.

Parishes in the region that didn’t leave the national church formed a diocese now known as The Episcopal Church in South Carolina.

The conservative diocese sued in efforts to protect its identity, the diocesan seal and other symbols it uses, and $500 million in church property, including the individual parishes’ holdings, as well as large properties including an Episcopal church camp in the Charleston area.

While the Supreme Court's opinions are complex, Acting Justice Toal in her dissenting opinion summarized the resulting holdings:

A majority of the Court ... agree that ... in secular church disputes, our state courts should apply neutral principles of law to resolve the case....  [T]he same majority would find this is a secular church dispute, and the Court must therefore apply longstanding trust law to resolve the questions before us. I would find the parties' actions did not comply with the formalities required to create a trust in this state....  Justice Kittredge would find the parties created a revocable trust in favor of the national church, but the plaintiffs later took steps to revoke their accession to the trust.... However ... a ... majority of the Court ... would ... transfer title of all but eight of the plaintiffs' properties to the defendants. While [2 justices] ... would do so because they believe this is an ecclesiastical dispute and the Court must therefore defer to the national church's decision on the matter, [another] would do so because he believes all but eight of the plaintiffs acceded to the Dennis Canon in a manner recognizable under South Carolina's trust law. Thus, the result reached on title is: 1) with regard to the eight church organizations which did not accede to the Dennis Canon, [3 justices] ... would hold that title remains in the eight plaintiff church organizations; 2) with regard to the twenty-eight church organizations which acceded to the Dennis Canon, [3 justices]... would hold that a trust in favor of the national church is imposed on the property and therefore, title is in the national church; and 3) with regard to Camp St. Christopher, [3 justices] would hold title is in the trustee corporation for the benefit of the associated diocese, whereas [2 others] ... would hold that the trustee corporation holds title for the benefit of the disassociated diocese. 

As to the second issue on appeal, involving the plaintiffs' claims for service mark infringement, [3 justices] ... would find the marks are validly registered under state law, but leave the ultimate resolution of the parties' conflicting claims to the pending federal case.

[Thanks to Tom Rutledge for the lead.]

4th Circuit Remands Transgender Bathroom Case

In Grimm v. Gloucester County School Board, (4th Cir., Aug. 2, 2017), the U.S. 4th Circuit Court of Appeals remanded to a Virginia federal district court a high-profile Title IX case on transgender rights, instructing the district court to determine whether the case has become moot.  At issue is whether a school board policy that required students to use rest rooms that correspond to their biological sex rather than their gender identity violates Title IX or the equal protection clause.  Previously the Supreme Court had granted certiorari, but when the Trump Administration withdrew Title IX guidance that had been issued by the Obama Administration, the Supreme Court remanded the case to the 4th Circuit for further consideration in light of that action. (See prior posting.) This past June, plaintiff graduated high school, so defendants contend that the case is now moot.  Plaintiff says he might still attend alumni or community events at the school.  It is also uncertain whether the school's bathroom policy extends to alumni as well as current students.  The 4th Circuit says that this requires further factual development by the district court. Reuters reports on the decision.

New Suit Challenges Settlement Agreement In Mosque Construction Dispute

As previously reported, in May a settlement was reached in a suit by the Islamic Society of Basking Ridge which charged RLUIPA violations, as well as violations of the 1st and 14th Amendments, in Bernards Township, New Jersey's refusal to grant site plan approval for construction of a mosque.  As part of the settlement agreement (full text), the parties agreed that a Planning Board hearing on the agreement and related mosque construction will be held, and that, among other things, at the hearing "No commentary regarding Islam or Muslims will be permitted." Now a federal lawsuit has been filed challenging this provision of the settlement agreement.  The complaint (full text) in Quick v. Township of Bernards, (D NJ, fled 7/31/2017) alleges that the commentary ban  suppresses speech based on its content; amounts to a prior restraint; violates the Establishment Clause by favoring Islam; and deprives township residents of procedural due process.  Thomas More Law Center issued a press release announcing the filing of the lawsuit.

Appeals Court Refuses To Order Recusal of Fundamentalist Christian Judge

In Ex parte Tiara Brooke Lycans, (AL App., July 28, 2017), an Alabama appellate court refused to issue a writ of mandamus ordering a trial judge who also serves as a preacher of a fundamentalist Christian church to recuse himself in a divorce action in which the wife, a lesbian, feared bias in the judge's custody ruling.  The court said in part:

Judge Bell's expressed belief that homosexual relationships and marriage are contrary to God's law, ... that God's law takes precedence over man-made law, and his placing paramount importance on the moral environment in which a child will live ... would tend to indicate to a reasonable person that a reasonable basis for questioning Judge Bell's impartiality in the divorce action exists; however, the standard is not whether there are some facts that would tend to indicate ... a reasonable basis.... Rather, the issue is "whether a reasonable person knowing everything that [Judge Bell] knows would have a "reasonable basis for questioning [Judge Bell's] impartiality."...  Judge Bell, in his pendente lite custody order ... granted the mother and the father joint physical custody of the child, with custody alternating weekly, and ... [he] has granted two other lesbian mothers and the fathers of their children joint physical custody.... [A] reasonable person who knows everything that Judge Bell knows would not have a reasonable basis for questioning Judge Bell's impartiality....

Christian Post reports on the decision.

Public Accommodation Law Does Not Apply To Photographer Without Business Store Front

Earlier this year a Madison, Wisconsin creative photographer, Amy Lynn, filed suit in Wisconsin state court challenging local and state public accommodation provisions that impeded her ability to rely on her Christian religious beliefs in her client selection. (See prior posting.)  Now, according to an ADF press release, at an August 1 hearing the court announced that it will issue an order declaring that the local and state public accommodation laws do not apply to individuals like Lynn who do not have a physical store front as part of their business.  The court said that the city and state agree that the public accommodation laws do not apply in such cases.

Good News Clubs Win Preliminary Injunction

In Child Evangelism Fellowship of Indiana, Inc. v. Indiana Metropolitan School District of  Pike Township, (SD IN, Aug. 1, 2017), an Indiana federal district court granted a preliminary injunction to Child Evangelism Fellowship preventing the school district from charging CEF a fee for using school facilities for the Good New Club meetings until the district develops an acceptable policy as to which groups must pay for use of school facilities.  The school district currently has a policy allowing some groups, such as the Boy Scouts, to "partner" with the schools and use facilities free of charge, while others, like CEF, are charged a fee.  The court held that the school district could charge fees to some groups and not others if the groups were classified in a viewpoint-neutral way.  Here however, "the District has given itself unbridled discretion to determine which outside groups pay fees to use its facilities and, indeed, which outside groups are permitted to use its facilities at all...." The court held:

This type of unbridled discretion and vague, unwritten “partner” policy violates the First Amendment.

Liberty Counsel issued a press release announcing the decision.

Defamation Suit Dismissed Under Ecclesiastical Abstention Doctrine

In Dermody v. Presbyterin Church (U.S.A.),  (KY App., July 28, 2017), a Kentucky appellate court applied the ecclesiastical abstention doctrine to dismiss a defamation suit brought by Roger Dermody, the minister who had been employed to oversee the mission work of Presbyterian Church (USA).  Dermody contended that the Church repeatedly falsely accused him of unethical conduct.  An audit committee investigation had found that Dermody had failed to adequately supervise three employees who created a separate corporation to carry out church mission work free of budget cuts and leadership changes. The court said:

We have carefully examined the issue and have determined we cannot provide Dermody the relief he seeks without excessive government entanglement into an ecclesiastical controversy-- that controversy is the disagreement between a minister and his church about what constitutes unethical conduct by one of that church's ministers.

Judge Combs concurred, but said:

... I write separately to express my concern about the disregard of Dermody's reputation demonstrated by the conduct of the Presbyterian Church.... 

The generalized announcement that he was dismissed due to "ethical violations" has clearly cast a shadow over his name.... Dermody now bears the inevitable burden of re-establishing a good name that was needlessly sullied by the church's failure to report his true shortcoming: that of being a poor manager rather than a corrupt or fallen cleric.

Becket issued a press release announcing the decision.

White House Meets With Evangelical Leaders

Christian Post reports that last week the White House Office of Public Liaison held three separate 2-hour listening sessions with almost 100 evangelical Christian leaders. The sessions involved briefings from the Administration and a chance for religious leaders to express their views on various issues.

State Tax Deduction Available To Father Who Objected To Social Security Numbers For His Children

In Larsen v. Indiana Department of State Revenue, (IN Tx. Ct., July 31, 2017), the Indiana Tax Court held that a taxpayer who had religious objections to obtaining social security numbers for his children could still take dependency deductions for them.  Because federal tax authorities allowed alternative documentation for federal tax purposes, that suffices for state tax purposes as well.  The state tax statute merely requires that the dependency allowance was allowed by the IRS, even though the state tax form calls for more. Indiana Lawyer reports on the decision.

Cert. Petition Filed In School Board Prayer Case

A petition for certiorari (full text) was filed with the U.S. Supreme Court today in American Humanist Association v. Birdville Independent School District, (filed 7/31/2017).  In the case (sub. nom. American Humanist Association v. McCarty) the U.S. 5th Circuit Court of Appeals upheld a school board's practice of opening its meetings with presentations from students, which often involve a prayer.  The 5th Circuit held that this should be covered by the legislative prayer cases, not the decisions regarding school prayer. (See prior posting.)  the American Humanist Association issued a press release announcing the filing of the petition for review.

Recent Articles of Interest

From SSRN:

• Yitshak Cohen, Recognition or Non-Recognition of Foreign Civil Marriages in Israel, (Yearbook of Private International Law, Volume 18 (2016/2017), pp. 321-340).
• Stijn Smet, Conscientious Objection to Same-Sex Marriages: Beyond the Limits of Toleration, (Author's Original Version of an article published by Brill in Religion & Human Rights (2016)).
• Christopher C. Lund, The Propriety of Religious Exemptions: A Response to Sager, (St. Louis University Law Journal, Vol. 60, p. 601, 2016).
• John D. Inazu, Peyote and Ghouls in the Night: Justice Scalia's Religion Clause Minimalism, (First Amendment Law Review, Vol. 15, p. 239, 2017).
• Gerard V. Bradley, 'And What Do You Say I Am?': The Meaning of the Kentucky Display, (Engage Volume 6, Issue 2 (2017)).
• Mark A, Drumbl, Histories of the Jewish 'Collaborator': Exile, Not Guilt, (July 25, 2017).
• Stephen Rushin & Jenny E. Carroll, Bathroom Laws As Status Crimes, (Fordham Law Review, Vol. 86, No. 1, 2017).
• Achsania Hendratmi & Mega Ayu Widayanti, Business Model in Islamic Perspective: Practising of Baitul Maal Wattamwil (BMT) UGT Sidogiri East Java Indonesia, (Journal of Management and Marketing Review, Vol. 2(1), p. 43-52, 2017).

From elsewhere:

• J. A. Cantone & R. L. Wiener, Religion At Work: Evaluating Hostile Work Environment Religious Discrimination Claims, [Absract], Psychology, Public Policy, and Law, 23(3), 351-366 (2017).
• J. Michael Martin, Should the Government Be In the Business of Taxing Churches, 29 Regent University Law Review 309 (2017).

Recent Prisoner Free Exercise Cases

In Ware v. Louisiana Department of Corrections, (5th Cir., July 28, 2017), the 5th Circuit held that prison grooming restrictions which prevent a Rastafarian inmate from wearing dreadlocks violate RLUIPA.

In Johnson v. Roskosci, 2017 U.S. Dist. LEXIS 116243 (MD PA, July 24, 2017), a Pennsylvania federal district court allowed an inmate to move ahead with his complaint that his religious tribal cultural beads were confiscated as contraband.

In Evans v. Brown, 2017 U.S. Dist. LEXIS 117108 (ND CA, July 26, 2017), a California federal district court allowed a Muslim inmate to move ahead with his complaint that he has not been allowed to participate in the Ramadan meal program.

In Muhammad v. Ponce, 2017 U.S. Dist. LEXIS 117275 (CD CA, July 26, 2017), a California federal district court dismissed with leave to amend a Nation of Islam inmate's complaint seeking an injunction that would allow him to observe Saviour's Day each year with a commemorative fast followed by a ceremonial meal.

In Bailey v. Batista, 2017 U.S. Dist. LEXIS 118035 (D MT, July 27, 2017), a Montana federal district court dismissed an inmate's complaint that he was denied vegetarian meals.

Further Evidence Needed To Rule On Ministerial Exception Defense

In Stabler v. Congregation Emanu-El of the City of New York, (SD NY, July 28, 2017), a New York federal district court refused to dismiss a suit alleging gender, age and disability discrimination brought by the Librarian of a New York synagogue who says that she was subjected to a hostile work environment, unlawful discrimination, harassment, and retaliation.  Defendants asserted the "ministerial exception" doctrine as a defense. The court held, however, that development of a further factual record is necessary to determine whether plaintiff performed sufficient religious functions to be considered a ministerial employee.

Trinity Lutheran Decision Does Not Apply to Neutral Ban on Funds to Private Schools

As reported by the Detroit Free Press, a Michigan state Court of Claims judge held this week that the U.S. Supreme Court's Trinity Lutheran decision is not a basis for lifting a preliminary injunction issued earlier this month barring payment of $2.5 million the legislature had allocated to private schools to cover the cost of complying with state mandates. That injunction was based on a Michigan state constitutional provision that bars public funds for "any private, denominational or other nonpublic, pre-elementary, elementary, or secondary school".  In Council of Organizations and Others for Education About Parochiaid v. State of Michigan, (MI Ct. Cl., July 25, 2017), the court said in part:

... the Court concludes at this juncture that the constitutional provision at issue in this case, Article 8, § 2 of the Michigan Constitution, can be understood as falling within the category of neutral and generally applicable laws, rather than n provision that singles out the religious for disfavored treatment....  [T]his Court is disinclined to extend the Trinity Lutheran decision to a case that plainly does not involve express discrimination.

DOJ, EEOC File Opposing Briefs On Title VII and LGBT Discrimination

On Wednesday, the Department of Justice filed an amicus brief (full text) with the U.S. Second Circuit Court of Appeals in the court's en banc rehearing in Zarda v. Altitude Express, Inc.  In the case the Justice Department argued that "Title VII’s prohibition of sex discrimination does not encompass sexual orientation discrimination."  That position directly contradicts the position taken by the EEOC in an amicus brief (full text) filed last month in the same case.  The EEOC argued that sexual orientation discrimination claims "fall squarely within Title VII’s prohibition against discrimination on the basis of sex." BuzzFeed reports on the Justice Department's brief.

Gov. Sam Brownback Picked As Ambassador For International Religious Freedom

The White House announced on Wednesday that President Trump will nominate Kansas Governor Samuel Brownback to be Ambassador at Large for International Religious Freedom. Before becoming governor, Brownback served for 15 years as U.S. senator where he was a key sponsor of the International Religious Freedom Act of 1998.  Reactions to Brownback's nomination varied. In a press release, the ACLU said in part:

... throughout his tumultuous tenure, Gov. Brownback worked tirelessly to erode the protections that the First Amendment affords for the separation of church and state.  More troubling, Gov. Brownback has been one of the nation's leading proponents of the notion that people, businesses, and even governments should be able to discriminate against others because of their own religious beliefs.

On the other hand, Liberty Counsel's press release applauded the nomination, saying in part:

Innocent people around the world are imprisoned, tortured, and persecuted for their faith. Christians and religious minorities are suffering more persecution than at any time in history. Gov. Brownback has proven that he will fight for religious freedom and will do an excellent job defending this sacred freedom around the world.

New York Times reported on the President's choice.

Court Interprets Vaccination Provision In Custody Decree

In In Re the Paternity of: G.G.B.W., (IN App., July 26, 2017), an Indiana appeals court held that the mother of a minor child should be held in contempt of a custody decree when she refused for religious reasons to have the child vaccinated.  A decree consented to by the mother and father of the child provided:

If the child attends a school that requires vaccinations for enrollment, and the child will be denied enrollment unless she receives the vaccinations, then the child will be given the required vaccinations for enrollment.

The court held that this requires the child be vaccinated upon enrollment in a school that requires its students to be vaccinated, even when a religious exemption from the vaccination requirement was available under Indiana statutes, saying:

If the parties intended the religious objection exemption to apply, they most likely would not have included the vaccination provision in the agreement at all, because a religious objection would always trump a school’s vaccination requirement and the provision would be meaningless.

The father was particularly concerned because of the danger that would be posed to his twin infant children if they were around the older child who was not vaccinated. Indiana Lawyer reports on the decision.

Catholic School Teacher Stripped of Tenure May Sue

In Mis v. Fairfield College Preparatory School, 2017 Conn. Super. LEXIS 3741 (CT Super., June 20, 2017), a Connecticut trial court refused to dismiss a suit by a tenured teacher at a Jesuit prep school whose employment was terminated by the president of the school. The president insisted that teacher Jason Mis engaged in "moral misconduct" when he took an unauthorized ride in a golf cart at a country club during a fundraising fashion show for the school.  Mis requested a committee hearing on his dismissal, as provided for in the school's handbook.  The hearing committee concluded that Mis had not engaged in moral misconduct, and that termination of his tenure was not supported.  Nevertheless the school terminated Mis, who then sued for breach of contract and defamation.  The court rejected the school's attempt to raise the ministerial exception as a bar to jurisdiction.  It went on to hold that the suit may be adjudicated using neutral principles of law without deciding between competing definitions of moral misconduct.

Trump Administration Reverses Policy Allowing Transgender Individuals To Serve In Military

Last year, Obama Administration Secretary of Defense Ash Carter announced that the ban on transgender individuals serving in the military was being lifted. (See prior posting.) Today, President Trump in a series of three Tweets (1, 2, 3) announced a reversal of that policy, saying:

After consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow transgender individuals to serve in any capacity in the U.S. Military. Our military must be focused on decisive and overwhelming victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail. Thank you.