Following SCOTUS, Texas Says No Chaplains In Execution Chamber

In response to last week's U.S. Supreme Court decision in Murphy v. Collier (see prior posting), the Texas Department of Criminal Justice has changed its execution protocol.  According to UPI, under the new rules only security personnel may be in the execution chamber while an inmate's execution is carried out.  No chaplains are permitted.  Official prison chaplains will be available to inmates until they are taken to the execution chamber.  Any spiritual adviser will be able to observe the execution from the witness room. Justice Kavanaugh's opinion last week indicated that this would be one permissible option to avoid denominational discrimination.

Catholic School Challenges City's Anti-Discrimination Ordinance

A small Catholic college preparatory school in South Euclid, Ohio has filed suit in federal district court challenging the city's recently enacted anti-discrimination ordinance.  The complaint (full text) in The Lyceum v. City of South Euclid, Ohio, (ND OH, filed 4/3/2019), challenges the lack of any exemption for religious organizations in the ordinance that bars employment, housing and public accommodation discrimination on the basis of  religion, creed, marital status, gender identity or expression, or sexual orientation, among other categories. It also prohibits statements indication that individuals are unwelcome on these bases. The suit alleges that the ordinance violates the school's 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit. Cleveland.com reports on the case.

SDNY: Title VII Anti-Retaliation Provision Does Not Apply To Critic of Religious Group's Gender Discrimination

In Aparicio v. Christian Union, Inc., (SD NY, March 29, 2019), a New York federal district court dismissed a Title VII retaliation claim brought by an employee of a religious organization. Christian Union is a non-profit organization that operates student leadership organizations at Ivy League colleges. Plaintiff, CUI's former Director of Public Affairs, claims that he was fired because he complained that CUI's policy of excluding women from leadership positions in the organization violates Title VII's anti-discrimination provision. Title VII explicitly allows religious organizations to discriminate on the basis of religion (but not on other bases).  The court here, however, went further. While concluding that the ministerial exception doctrine does not apply, it held:

... CUI's "complementarian" policy, which reserves executive positions for men, reflects its right to choose who performs certain religious roles within the organization. Therefore, in this case, the Free Exercise Clause bars the Court from asserting Title VII's secular sensibilities on who CUI allows to perform its highest religious roles.

Furthermore, Title VII's anti-retaliation provision does not apply when the basis for the alleged retaliation are an employee's objections to his or her employer's religious discrimination.... Essentially, Title VII "permits religious organizations to advance their religious missions by discriminating based on religion in employment," and, where a retaliation claim is based on complaints directed toward that permissible discrimination, Title VII's anti-retaliation provision "does not apply." Lown v. Salvation Army, Inc., 393 F. Supp. 2d 223, 246, 254 (S.D.N.Y. 2005).

Accordingly, applying Title VII's discrimination and retaliation provisions to CUI's "complementarian" policy violate the Free Exercise Clause. For that reason, Plaintiff's Title VII anti-retaliation claim must be dismissed.

Utah Enacts Hate Crimes Law

Utah Governor Gary Herbert yesterday signed S.B. 103 Victim Targeting Penalty Enhancements (full text). The new law creates enhanced penalties for various crimes when the victim was targeted because of 18 personal attributes. These include race, religion, sex, sexual orientation and gender identity. Utah Policy reports on the enactment of this hate crimes bill.

Parents Failed To Show Sincere Religious Anti-Vaccine Belief

In an administrative decision handed down last month, the New York State Education Department affirmed the denial of a religious exemption from state immunization requirements because parents seeking the exemption failed to show they had a sincerely-held religious belief in opposition to immunization. In In re Appeal of M.W., (NYSED, March 20, 2019), the Commissioner held that the general statements submitted by petitioners regarding their religious beliefs were insufficient to show a sincerely-held religious belief. The students and their family were members of the Temple of the Inner Flame. They argued:

Due to the spiritual beliefs of my families [sic] religion, [the students] cannot receive any medical vaccines.  They are a foreign substance that is not naturally found in the body.  We consider our bodies a temple of God that should be treated as such.

WKBW News reports on the decision.

Court Refuses To Enjoin Activity Ban Imposed On Non-Vaccinated Students

In Kunkel v. NKY Independent Health Department, (KY Cir. Ct., April 2, 2019), a Kentucky state trial court refused to grant a preliminary injunction, thereby upholding the steps taken by a local health department to control an outbreak of chicken pox at a Catholic high school.  The health department first imposed an extra-curricular activity ban, and subsequently an attendance ban for students who were not vaccinated or otherwise immune.  Jerome Kunkel objected on religious grounds to being vaccinated for chicken pox because the vaccine originated from aborted fetal cells. The court noted that the state is not requiring Kunkel to take the vaccination, but is merely excluding him from school as a means of controlling the outbreak. Fox 19 News reports on the decision.

UPDATE: On June 26, 2019, according to the NKY Health Department, the Kentucky Court of Appeals upheld the trial court's decision.

Same-Sex Marriage Legalized In Cayman Islands

A decision handed down last Friday by the Cayman Islands Grand Court has legalized same-sex marriage in the Caribbean nation that is a British Overseas Territory.  Cayman Compass reports:

The decision, which was met by applause from around 80 people who packed into Courtroom 5, follows a petition by Day and her partner Vickie Bodden Bush.

The couple, who have been in a committed relationship for seven years and have an adopted daughter together, brought a joint judicial review and constitutional challenge after government refused their application to marry in April last year.

Chief Justice Anthony Smellie ruled on Friday that the decision was discriminatory. He said preventing same-sex couples from accessing marriage, and the suite of rights that come with it, was a clear violation of freedoms guaranteed in Cayman’s constitution, including the right to a private and family life.

Chief Justice Smellie used his powers under the Constitution to rewrite the Marriage Law. He ordered that the clause in the law, specifying that marriage is reserved for heterosexual couples, be altered to state, “‘Marriage’ means the union between two people as one another’s spouses.”

Canadian Tribunal Finds Anti-Transgender Election Pamphlet Amounts To Illegal Discrimination

In Canada, the British Columbia Human Rights Tribunal last week held that a Christian activist violated the province's Human Rights Code when he circulated a pamphlet attacking a candidate for the province's Legislative Assembly because of her transgender status.  In Oger v. Whatcott, (BCHRT, March 27, 2019), the Tribunal held that William Whatcott's conduct amounted to unlawful hate speech and discrimination against transgender advocate Morgane Ogerunder.  At issue was the application of Section 7 of the Human Rights Code which prohibits publications that, among other things, indicate an intent to discriminate or which likely expose a person to hatred or contempt on the basis of their gender identity or expression. As described by the Tribunal:

Mr. Whatcott created a flyer entitled “Transgenderism vs. Truth in Vancouver‐False Creek” [Flyer]. In it, he called Ms. Oger a “biological male who has renamed himself… after he embraced a transvestite lifestyle”. He expressed a concern “about the promotion and growth of homosexuality and transvestitism in British Columbia and how it is obscuring the immutable truth about our God given gender”. He described being transgender as an “impossibility”, which exposes people to harm and constitutes a sin. Mr. Whatcott ended the Flyer with a call to action: do not vote for Ms. Oger or the NDP.

In its 105-page opinion, the Tribunal rejected Whatcott's freedom of expression and religion defenses, balancing the Charter of Rights and Freedoms against the objectives of human rights legislation. Toronto Star reports on the opinion.

Failure To Provide Employee Religious Accommodation Upheld

In Dockery v. Maryville Academy, (ND IL, March 29, 2019), an Illinois federal district court dismissed an employee's Title VII failure to accommodate and religious discrimination claims. Plaintiff, a youth care worker at a child welfare agency, wanted Fridays and Saturdays off for religious reasons. According to the court:

It remains unclear to the Court what religion Plaintiff claims to belong. Some evidence indicates that Plaintiff is Jewish. Plaintiff identified himself as a “Jew” on his employee information sheet. Plaintiff refereed to his culture as Judaism during his deposition. Yet Plaintiff also testified that his culture believes that Jesus Christ is the savior....  Still, the Court recognizes that “sincerity rather than orthodoxy is the touchstone” for determining whether a belief is sincerely held.

The court concluded however:

Defendant had an objective basis for questioning whether Plaintiff sincerely believed that it was against his religion to work during the sabbath. Plaintiff’s failure to provide more information to his employer as requested is grounds for granting summary judgment.

Recent Articles of Interest

From SSRN:

• Jianlin Chen, Lying About God (and Love?) to Get Laid: The Case Study of Criminalizing Sex Under Religious False Pretense in Hong Kong, (Cornell International Law Journal, Vol. 51, No. 3, 553-607, 2018).
• Richard W. Garnett, Mild and Equitable Establishments, (First Things (April 2019)).
• Robin Fretwell Wilson, Common Ground Lawmaking: Lessons for Peaceful Coexistence from Masterpiece Cakeshop and the Utah Compromise, (Connecticut Law Review, Vol. 51, No. 3, 2019).
• Michel Rosenfeld, Constitutionalism and Secularism: A Western Account, (Susanna Mancini, ed., Handbook on Constitutions and Religion (Edward Elgar Publishers 2019)).
• Brue P. Frohnen, Augustine, Lawyers & The Lost Virtue of Humility, (Catholic University Law Review, Forthcoming).
• Anthony Michael Kreis, Policing the Painted and Powdered, (Cardozo Law Review, Vol. 41, 2019, Forthcoming).
• Darryn Jensen, The Boundary between 'Not-for-Profits' and Government, (Matthew Harding (ed), Research Handbook on Not-for-Profit Law (Edward Elgar, Cheltenham, 2018) 153-170).

From SmartCILP:

• Lucien J. Dhooge, The Religious Freedom Restoration Act At 25: A Quantitative Analysis of the Interpretive Case Law, 27 William & Mary Bill of Rights Journal 153-212 (2018).

Zoning Ordinance Violates RLUIPA Equal Terms Provision

In Christian Fellowship Centers of New York, Inc. v. Village of Canton, (ND NY, March 29, 2019), a New York federal district court granted a preliminary injunction, holding that Canton (NY) violated the "equal terms" provision of RLUIPA when it refused to permit a church to locate in a district zoned commercial. The court described the challenged zoning law:

Section 325-11 ... of the Canton Village Code prohibits houses of worship from operating in the downtown zone even though it permits not-for-profit organizations to use nearby properties to meet for secular purposes....

In barring its enforcement against the church, the court said in part:

First, the Ordinance treats religious assemblies less well than secular assemblies that have equivalent impacts on its purposes. Second, the “formal differences” relied on by the Village do not trump the “practical” similarities between churches and the secular organizations the Ordinance treats more favorably.... And third, no compelling interest justifies the unequal treatment.

The court rejected the village's argument that churches could be excluded because the state liquor control laws prevented bars from locating within 200 feet of a church.

Religious Exercise Challenge To School's Transgender Policy Moves Ahead

In Students and Parents for Privacy v. School Directors of  Township High School District 211, (ND IL, March 29, 2019), an Illinois federal district court refused to dismiss religious exercise claims by a group of students and parents who object to a high school's policy that allows transgender students to use rest room and locker rooms conforming to their gender identity.  Adopting plaintiffs' label of "compelled affirmation policy," the court held that plaintiffs had stated a claim under Title IX, the Illinois Religious Freedom Restoration Act and the First Amendment.  The court said in part:

It is enough that plaintiffs allege SPP Parents and SPP Students have sincere religious beliefs that they should not undress or use the bathroom in front of members of the opposite sex and that SPP Parents have a sincere religious belief that they should teach such modesty to their children....

SPP Students are at risk of exposure to opposite-sex individuals while they are undressing or using the restroom, in violation of their sincerely-held religious beliefs.... 

[P]laintiffs have alleged that District 211 conveyed to students that anyone who objects to the compelled affirmation policy is a bigot or intolerant.

The court however dismissed plaintiffs' claims of violations of the right to bodily privacy and the right to control the education of one's children.

Limits On Rescheduling Hearings That Conflict With Religious Holidays Do Not Violate Free Exercise Rights

In Jack Jaffa & Associates v. City of New York, (NY Cty. Sup. St., March 21, 2019), a New York state trial court rejected a claim that rules of New York City's Office of Trials and Hearings violate the First Amendment.  Plaintiff, which represents clients who have been issued administrative summonses by New York City agencies, contended that rules which limit the ability to reschedule hearings that conflict with Jewish and Muslim holidays violate its rights and the rights of its clients.  The court held:

Petitioner has failed to state a claim for violation of its First Amendment right of free exercise of its religion. OATH's rules concerning the rescheduling and adjournment of hearings are neutral in both object and application and therefore "the First Amendment has not been offended."

Pope Issues New Law On Reporting of Sex Abuse of Minors and Vulnerable Adults In Vatican

On March 26, Pope Francis promulgated Law N. CCXCVII on the Protection of Minors and of Vulnerable Persons of Vatican City State.  It requires any public official of the Vatican City State who has information or a well-founded belief that a minor or other vulnerable person is the victim of abuse is required to report it to authorities, except for information obtained in the sacrament of confession. According to the Catholic Register:

While few minors are resident in Vatican City State, there are minors in the Sistine Chapel Choir, and there is a pediatric hospital and a minor seminary under Vatican City State jurisdiction....

The new law will now cover all forms of physical and emotional abuse -- not just sexual violence through coercion — as well as serious forms of mistreatment, neglect, abandonment and exploitation against minors, who are below the age of 18, and vulnerable adults.

As reported by AP:

According to the new Vatican definition, a vulnerable person is anyone who is sick or suffering from a physical or psychiatric deficiency, isn’t able to exercise personal freedom and has a limited capacity to understand or resist the crime.

The issue of whether “vulnerable people” can include seminarians, religious sisters or other adults who are emotionally dependent on clergy has come to the fore in the wake of the scandal over ex-Cardinal Theodore McCarrick, a once high-ranking American cleric who molested seminarians, and revelations of priests and bishops around the world sexually preying on nuns.

The new law covers all personnel who live in or work for the Vatican and any abuse that occurs in the Vatican, the 44-hectare (110-acre) city state in the center of Rome and its other territories, as well as the Holy See’s vast diplomatic corps.

The Vatican’s own ambassadors have figured in some of the most scandalous cases of sex abuse in recent years...

SNAP, an organization supporting clergy abuse victims, issued a press release generally reviewing the Vatican's action favorably, but complaining that the law requires reporting to internal Vatican officials rather than to independent secular law enforcement officials.

Brunei Further Implements Its Sharia Penal Law-- The Details

There has been extensive coverage in the press in recent days regarding the Sultan of Brunei's further implementation of Sharia law in his southeast Asian nation.  Press coverage has focused on implementation of the provisions on stoning for the offences of adultery and homosexual sex. (CNN, ABC). Here is a closer look at the legal steps the nation has taken.

In 2013, Brunei adopted Syariah Penal Code Order, 2013 (full text). The law was to be implemented in stages, beginning with crimes involving only jail terms. Last December, the Ministry of Religious Affairs published a Notice (full text) of the remaining provisions that will go into effect April 3.  These are provisions in Chapter I of the law imposing Sharia penalties, among other things, for theft offenses (Sariqah, Hirabah), adultery (Zina), rape (Zina Bil-Jabar), sodomy (Liwat), apostasy (Irtidad), and drinking intoxicating liquors. Section 94 on pregnancy out of wedlock was excluded from the provisions taking effect.

A new Criminal Procedure Code (full text) was also ordered effective as of January 1, 2019.

Pastor's Convictions For Corrupting Minors Dismissed

Christian Chronicle reports on a March 18, 2019 decision by a Pennsylvania trial court judge vacating a long-time Church of Christ youth minister's convictions for corruption of minors and indecent exposure.  Clyde Brothers, Jr. had been sentenced to five years in prison for showing pornographic movies and performing lewd acts in front of church boys. Granting a post-trial motion, however, the court held that the state's statute of limitations barred the prosecution.

Supreme Court Says Inmate Is Entitled To His Spiritual Adviser In Execution Chamber

Late last night, the U.S. Supreme Court, by a 7-2 vote, ruled in favor of Buddhist prisoner Patrick Murphy who wanted his Buddhist spiritual adviser to be present in the execution chamber when his execution, scheduled for last night, was carried out. A Texas federal district court had upheld the decision of prison authorities to allow only the prison's Christian chaplain to be in the room with Murphy. His Buddhist clergyman could be in the adjacent viewing room. (See prior posting.) In Murphy v. Collier, (Sup. Ct., March 28, 2019), the U.S. Supreme Court held:

The State may not carry out Murphy’s execution pending the timely filing and disposition of a petition for a writ of certiorari unless the State permits Murphy’s Buddhist spiritual advisor or another Buddhist reverend of the State’s choosing to accompany Murphy in the execution chamber during the execution.

Justices Thomas and Gorsuch voted against granting a stay of execution. Justice Kavanaugh filed a concurring opinion, saying in part:

For this kind of claim, there would be at least two possible equal-treatment remedies available to the State going forward: (1) allow all inmates to have a religious adviser of their religion in the execution room; or (2) allow inmates to have a religious adviser, including any state-employed chaplain, only in the viewing room, not the execution room.... [T]here are operational and security issues associated with an execution by lethal injection. Things can go wrong and sometimes do go wrong in executions, as they can go wrong and sometimes do go wrong in medical procedures. States therefore have a strong interest in tightly controlling access to an execution room in order to ensure that the execution occurs without any complications, distractions, or disruptions. The solution to that concern would be to allow religious advisers only into the viewing room.

....What the State may not do, in my view, is allow Christian or Muslim inmates but not Buddhist inmates to have a religious adviser of their religion in the execution room.

The case moved through the Supreme Court rapidly. The district court's decision was handed down on March 26. A petition for a stay was filed and on March 28 Becket filed a 22-page amicus brief with the Supreme Court.  According to Becket, the Supreme Court's decision was handed down two-and-one-half hours after the scheduled start of the execution.

Court Enjoins Obama-Era Contraceptive Mandate Accommodation

In Dobson v. Azar, (D CO, March 26, 2019), a Colorado federal district court reopened proceedings in a case challenging Obama-era Affordable Care Act accommodation for religious non-profits and granted a permanent injunction against their enforcement to the extent they require insurance coverage for drugs or procedures "that may destroy a human embryo or fertilized egg of a mother either before or after the implantation of a fertilized egg in the uterus of its mother." The suit by James Dobson and Family Talk was one of a large number of challenges to regulations that required religious non-profits that wished to opt out of the mandate for contraceptive coverage to complete an exemption form that had the effect of triggering coverage directly from the organization's insurer. The Trump administration promulgated Interim Final Rules creating a broader exemption. However multiple lawsuits have been filed challenging this broader exemption and two courts have issued preliminary injunctions against their enforcement.  The court concluded:

Given the uncertainty presented by the legal challenges to the IFR, I find and conclude that a permanent injunction is proper.

Colorado Springs Gazette reports on the decision.

Iowa Governor Signs Campus Free Speech Bill

Yesterday, Iowa Governor Kim Reynolds signed SF 274 (full text), a bill that is designed to protect free speech at public universities. The new law requires the state Board of Regents and the board of each community college to adopt an extensive policy to protect speech and expression. Among other things, it bars public universities from limiting non-commercial speakers to a free-speech zone.  As reported by Iowa State Daily, the section of the new law that has raised the most controversy is Section 3(3) which prohibits denying benefits to a student organization because it requires that its leaders agree to and support the organization's beliefs as interpreted by the organization.  This presumably allows religious organizations that oppose same-sex relations to bar members of the LGBTQ community from leadership positions.

9th Circuit: Sikh Asylum Applicant Did Not Show Past Persecution

To qualify for asylum as a refugee, an individual must show either past persecution or a well-founded fear of future persecution. (8 CFR 1208.13). In Singh v. Barr, (9th Cir., March 25, 2019), the U.S. 9th Circuit Court of Appeals held in a 2-1 decision that a citizen of India had shown neither. Amaneep Singh, a Sikh, approached members of the Dera Sacha Sauda at one of their recruitment meetings to stop them from criticizing Sikhism. He was chased out of the event. Two months later Dera Sacha Sauda members encountered Singh alone and beat him.  When Singh approached police, they demanded a 25,000 rupee bribe to help him. the majority concluded:

Because Singh’s evidence showed only that the police demanded a bribe on one occasion, the evidence does not compel a finding that the government was unable or unwilling to control the people who attacked him, and therefore does not compel a finding of past persecution....

Singh’s attackers were part of Dera Sacha Sauda, a small religious minority active in only some regions of India. There is no reason to think that Singh is at future risk from a group with such limited influence because he is a Sikh.

Judge Watford dissented saying in part:

Members of another religious faith told Singh to abandon his religion and join their own. When he refused to disavow his faith, they beat him until he was unconscious, hospitalizing him for two weeks. When he went to the police for help, they refused to help him unless he paid a bribe, which was more than he could afford to pay. The majority errs by concluding that these facts do not establish past persecution.

San Francisco Chronicle reports on the decision.