Recent Articles of Interest

From SSRN:

• John Vlahoplus, Foreign-Born Children of Disloyal Parents: Adam Muthana, Mary Arcedeckne and the Natural Born, (St. John's Law Review, Forthcoming).
• Eliza Bateman, 'His Garden a Wilderness' - The Balance between Equality and Freedom of Religion in Australia and Canada, (March 18, 2019).
• Scott D. Gerber, Law and Liberty of Conscience in Colonial Pennsylvania, (NYU Journal of Law & Liberty, Vol. 12, No. 3, 2019, Forthcoming).
• Martin Kwan, Human Gene Editing and Human Rights: An Uncertain Future, (Human Rights Series, 2019).
• Nitish Nawsagaray, Misuse of the Prevention of Atrocities Act: Scrutinising the Mahajan Judgment, 2018, (Economic & Political Weekly, June 2, 2018 vol. LIII no. 22).

From SmartCILP:

• The Question of Religious Freedom: From John Courtney Murray, SJ and Vatican II to the Present. Articles by Miguel H. Diaz, Robin W. Lovin, Barry Sullivan, Leslie C. Griffin, Hille Haker, Kathleen A. Brady, Carmen Nanko-Fernandez, Thomas C. Berg. 50 Loyola University Chicago Law Journal 1-209 (2018).
• Kristina M. Campbell, Sanctuary, Temporary Protected Status, and Catholic Social Teaching, 96 University of Detroit Mercy Law Review 25-53 (2018).

DC Circuit: House Can Exclude Secular Invocations

In Barker v. Conroy, (D Cir., April 19, 2019), the U.S. Court of Appeals for the D.C. Circuit rejected an Establishment Clause challenge to the rule in the House of Representatives that limits invocations to those that are "religious" rather than secular.  At issue was the refusal by the House Chaplain's Office to allow a former Christian who had become an atheist to serve as guest chaplain and deliver a secular invocation.  The court found plaintiff had standing to bring the suit, but, citing Supreme Court precedent, held:

Marsh and Town of Greece leave no doubt that the Supreme Court understands our nation’s longstanding legislative-prayer tradition as one that, because of its “unique history,” can be both religious and consistent with the Establishment Clause. Marsh, 463 U.S. at 791. And although the Court has warned against discriminating among religions or tolerating a pattern of prayers that proselytize or disparage certain faiths or beliefs, it has never suggested that legislatures must allow secular as well as religious prayer. In the sui generis context of legislative prayer, then, the House does not violate the Establishment Clause by limiting its opening prayer to religious prayer.

Roll Call reports on the decision. [Thanks to Jeff Pasek for the lead.]

White House Announces Annual Easter Egg Roll

The White House today announced this year's Easter Egg Festivities, which will be held next Monday.  The press release, supplementing information elsewhere on the White House website, says in part:

First Lady Melania Trump and President Donald J. Trump invite this year’s Easter Egg Roll attendees to enjoy a variety of activities, including the time-honored Egg Roll and the Trump Administration’s Cards for Troops station.  New to the Egg Roll this year: musical eggs and Be Best hopscotch.  In recognition of the First Lady’s Be Best campaign, children will also have the opportunity to spread kindness by mailing postcards to anyone they choose – friends, family, members of the military – directly through a United States Postal Service mailbox that will be on the South grounds.

Pro-Life Pregnancy Center Challenges City's Required Disclosures

Suit was filed in a Connecticut federal district court yesterday challenging the constitutionality of a Hartford (CT) Ordinance that requires pregnancy resource centers to make required disclosures on signs, websites and when patients make appointments.  Facilities must make the disclosures if they do not have licensed medical providers on the premises to directly supervise all services.  The complaint (full text) in Caring Families Pregnancy Services, Inc. v. City of Hartford, (D CT. filed 4/18/2019), alleges that the Ordinance is drafted to cover only pro-life pregnancy resource centers, and requires statements that incorrectly imply that the facilities are not qualified to provide the services they offer. The complaint contends:

The practical result of enforcing the Ordinance’s Compelled Speech provision would be not only to inhibit a religious ministry from furthering its mission and message but also to force religious speakers to speak messages with misleading, confusing and negative implications....

Hartford is intent on interfering with certain views about life, pregnancy, and motherhood. Hartford has thus crafted a speaker-based, viewpoint-based law targeting the speech only of speakers espousing certain pro-life moral, religious, and philosophical beliefs.

ADF issued a press release announcing the filing of the lawsuit.

Emergency Order Requiring Measels Vaccination Upheld

In C.F. v. New York City Department of Health, (Kings Cty. Sup. Ct., April 18, 2019), a New York state trial court judge rejected challenges to the recent emergency order by the New York City Health Department requiring everyone living or working in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt. The court said in part:

The pivotal question posed for this court's determination is whether Respondent Commissioner has a rational, non-pretextual basis for declaring a public health emergency.... The unvamished truth is that these diagnoses represent the most significant spike in incidences of measles in the United States in many years and that the Williamsburg section of Brooklyn is at its epicenter....

The religious objection exemption contained in Public Health Law $2 164(a) applies only to the certificate of immunization required to admit a child to school, not to remedies attendant upon declaration of a public health emergency....

Petitioner raise the issue of informed consent.... A fireman need not obtain the informed consent of the owner before extinguishing a house fire. Vaccination is known to extinguish the fire of contagion.

Enforcement of Mahr Provision In Islamic Marriage Contract Upheld

In Seifeddine v. Jaber, (MI App., April 16, 2019), a Michigan state appellate court rejected a challenge to a trial court's enforcement in a divorce action of the mahr provisions of an Islamic marriage certificate. The provision required the husband to pay $50,000 to his wife. According to the court:

[T]he trial court expressly and repeatedly stated that it was not applying religious principles or doctrines but was instead applying Michigan common law regarding contracts.... Plaintiff makes no argument challenging any particular element for establishing the existence of a contract. Nor does plaintiff cite any authority for his contention that a neutral principle of law must be derived from a statute rather than from Michigan common law when examining a religious document.

NY Guidelines For Yeshiva Educational Requirements Are Struck Down

Yesterday a New York state trial court judge struck down the state's controversial Guidelines adopted last year aimed at  assuring that yeshivas, as well as other non-public religious and independent schools, comply with state law requiring them to offer an education substantially equivalent to that of public schools. (See prior related posting.) In Parents for Educational and Religious Liberty in Schools v. Rosa, (Albany Cty. Sup. Ct., April 17, 2019), the court held that the education commissioner did not comply with the notice and comment requirements of the State Administrative Procedure Act in adopting the Guidelines. Gothamist reports on the decision. [Thanks to Steven H. Sholk for the lead.]

8th Circuit Hears Arguments Over Title VII's Applicability To Sexual Orientation

Yesterday, the U.S. 8th Circuit Court of Appeals heard oral arguments in Horton  v.  Midwest Geriatric Management (audio of full oral argument). As reported by the National Law Journal, at issue is whether Title VII's prohibition on discrimination "because of sex" covers discrimination on the basis of sexual orientation. In the case, a health care specialist sued after his offer of employment was rescinded, claiming the rescission came because his employer discovered he was gay.

Rockland County Issues New Orders To Combat Measles Spread

Rockland County, New York health authorities are taking new steps to combat the spread of measles in the county.  As previously reported, on April 5 a New York state trial court judge held that the health department's declaration of a state of emergency was invalid. That decision is being appealed. Yesterday the County announced two new Orders by the Commissioner of Health, relying on different legal authority than the basis of the Order that was struck down.

The first new Order (full text) provides that anyone diagnosed with measles, or exposed to someone diagnosed with measles, must be excluded as a public health nuisance from places of public assembly for up to 21 days. Places of public assembly are defined broadly and include the homes of other persons.

The second new order requires schools in two zip code areas to file a notarized statement identifying unvaccinated students who, as required, have been excluded from school. Orangetown Daily Voice reports on these developments.

Morocco Names Chief Rabbinical Court Master, Ending 100 Years of Vacancies In the Post

Arutz Sheva reports that the government of Morocco, on behalf of the country's King Mohammed VI, has appointed Rabbi Yoshiahu Pinto to the post of Supreme Chief Rabbinical Court Master. The post has been vacant for last 100 years. In his position, Pinto will head the Moroccan Jewish community's kosher food supervision and will adjudicate religious and customary issues for the country's 10,000 Jewish residents, as well as for the many Jewish visitors to the country.

DOJ Settles RLUIPA Zoning Claims With Texas City

The Department of Justice announced yesterday that it has reached an agreement with the City of Farmersville, Texas to resolve allegations that the city violated RLUIPA when in 2017 it denied a Muslim organization approval for construction of a cemetery:

The settlement agreement resolves a lawsuit the United States filed today in the U.S. District Court for the Eastern District of Texas. After the City denied the Islamic Association’s application to build a religious cemetery, the United States opened an investigation of the City’s actions in September 2017. In August 2018, the United States notified the City that it had concluded that the City had violated RLUIPA and intended to file suit, and offered the City an opportunity to negotiate a resolution. In September 2018, the City and the Islamic Association entered into a separate agreement allowing for the approval of the cemetery and in December 2018, the City approved the Islamic Association’s application to develop the land as a cemetery.

Here is the complaint in United States v. City of Farmersville, Texas, (ED TX, filed 4/16/2019) filed yesterday as part of the negotiations.

Parents Sue Prominent DC Synagogue Over Child Abuse of Pre-Schoolers

Washington Post reports on a lawsuit filed Monday in D.C. Superior Court against a prominent Reform synagogue in D.C. Parents who brought the suit allege that at least seven children in the synagogue's preschool were sexually abused by a teacher for more than a year. The 239-page complaint filed against Washington Hebrew Congregation and Deborah Jensen, its director of early childhood education, does not include the teacher who is the alleged abuser as a defendant.  According to the Post:

The lawsuit states that the preschool teacher identified in the complaint was allowed to be alone with students despite city regulations requiring at least two adults to be present with toddlers in licensed child development centers. The school also did not properly train staff on ways to reduce the potential for child sexual abuse and to recognize signs that it may have happened, the lawsuit alleges....

Within a month of the man beginning work at Washington Hebrew, teachers and parents reported to Jensen incidents of inappropriate behavior, according to the lawsuit. The alleged behavior included being late returning students when he was alone with them and not responding to co-workers who were looking for him while he was with students.

The lawsuit states that when an adult reported potential abuse to Jensen, the director said that the person reporting the potential abuse had a “sick mind” and that the teacher would never abuse children. Jensen did not investigate the incidents further, did not restrict the teacher’s access to children and did not report the allegations to city officials, according to the lawsuit.

How Did Government Action On Gay Marriage Affect Attitudes?

Courthouse News Service reports on interesting research posted yesterday at the Proceedings of the National Academy of Sciences (PNAS):

Researchers compared trends before and after state-level legalization of gay marriage in each state.

The study found the local legislation reduced antigay bias, even though biases against lesbian and gay people were already decreasing. States which legalized same-sex marriage experienced decreases in homophobia at a sharper rate – declining at roughly double the previous rate – after legalization, according to the study.

For the 15 states that didn’t pass laws legalizing same-sex marriage before it became federal law, Hehman and his research team found a “backlash effect” where homophobia increased in those states in the immediate aftermath after the Supreme Court ruling – despite a decreasing trend in anti-gay bias prior to Obergefell.

PNAS, in assessing the significance of the research, says in part that it indicates "government legislation can inform attitudes even on religiously and politically entrenched positions."

New Report On Perceived Discrimination Against Various Groups

Yesterday the Pew Research Center released its 2019 report (full text) on the extent to which the American public perceives that there is discrimination against various discrete groups.  While surveying perceived discrimination against 9 different groups, the report headlines increasing discrimination against Jews:

Today, 64% of Americans say Jews face at least some discrimination – a 20-percentage-point increase from 2016; the share saying Jews face “a lot” of discrimination has nearly doubled, from 13% to 24%.

The report also finds that 82% believe that there is at least some discrimination against Muslims.  50% believe there is at least some discrimination against Evangelical Christians (a rise of 8% over 2016).

Parents Sue Over NY Vaccination Order; One Child Care Facility Ordered Closed

Yesterday five mothers of children who claim religious exemptions from vaccination requirements filed suit in a New York state trial court challenging last week's emergency order by the New York City Health Department requiring everyone living or working in zip codes comprising the Williamsburg section of Brooklyn to be vaccinated against measles unless they already have immunity or are medically exempt. (See prior posting.)  The complaint (full text) in C.F. v. New York City Department of Health and Mental Hygiene, (Kings Cty. Sup. Ct., filed 4/15/2019) contends:

There is insufficient evidence of a measles epidemic or dangerous outbreak to justify the respondents’ extraordinary measures, including forced vaccination. The Orders are, therefore, arbitrary, capricious, contrary to law and in violation of petitioners’ rights under the United States Constitution and New York State law.

The complaint also contends that the Order ignores the risk of harm from compulsory vaccination.  Courthouse News Service reports on the lawsuit.

Meanwhile yesterday New York officials ordered a child care center in Williamsburg closed for failing to provide the Health Department access to medical and attendance records showing that the school is excluding unvaccinated children. (New York Times; Yeshiva World News).

SCOTUS Hears Arguments On Immoral Trademarks

Yesterday the U.S. Supreme Court heard oral arguments in Iancu v. Brunetti (transcript of oral arguments). At issue is whether Sec. 2(a) of the Lanham Trademark Act that prohibits registration of a trademark that contains "immoral" matter is invalid under the free speech provisions of the 1st Amendment.  Here is the SCOTUSblog case page for the case linking to all the briefs and other pertinent material. Mark Walsh at SCOTUSblog describes the case as an introduction to his entertaining summary of oral arguments:

The first case for argument today involves the highly provocative trademark, “FUCT,” for a line of “streetwear” founded by Erik Brunetti in California in 1990.

Washington Post also reports on the oral arguments.

Catholic Agency Sues Michigan Over Adoption Agency Non-Discrimination Policy

As previously reported, last month Michigan Attorney General Dana Nessel announced that the state has entered into a settlement agreement that calls for the state to enforce non-discrimination provisions in agreements with foster care and adoption agencies.  The settlement applies to any agency contracting with the state that discriminates against same-sex couples or LGBTQ individuals otherwise qualified as foster care or adoptive parents.  Yesterday suit was filed in a Michigan federal district court by a Catholic adoption and foster care agency, and by some of its clients, challenging Michigan's new policy.  The complaint (full text) in Buck v. Gordon, (WD MI, filed 4/15/2019), contends that the new policy violates plaintiffs' 1st and 14th Amendment rights as well as RFRA. The Federalist reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Caroline Mala Corbin, Christian Legislative Prayers and Christian Nationalism, (Washington and Lee Law Review, Vol. 75, 2019).
• Christopher C. Lund, Martyrdom and Religious Freedom, (Connecticut Law Review, Vol. 50, p. 959, 2018 (symposium)).
• Levi Cooper, Polish Hasidism and Hungarian Orthodoxy in a Borderland: The Munkács Rabbinate, (Polin: Studies in Polish Jewry 31 (2019): 199-223 [pre-publication version]).
• Brendan Thomas Beery, Free Exercise Standing: Extra-Centrality As Injury In Fact, (St. John's Law Review, Forthcoming).
• Doug Magendanz, Church Power, Sovereignty and Freedom of Religion in Thomas Hobbes, (March 19, 2019).
• G. V. Mahesh Nath, Constitutional Morality - A Need for Consensus on the Concept, (March 16, 2019).
• Barton Beebe & Jeanne C. Fromer, Immoral or Scandalous Marks: An Empirical Analysis, (April 4, 2019).

From SmartCILP:

• Ann E. Blankenship-Knox & Brett A. Geier, Taking A Day Off to Pray: Closing Schools for Religious Observance in Increasingly Diverse Schools, 2018 BYU Education & Law Journal 89-139.
• Religious Exemptions and Harm to Others. Articles by Gary J. Simson, Carl H. Esbeck, Eric Segall, Arnold H. Loewy, Elizabeth Sepper, Christopher C. Lund, William P. Marshall, Kathleen A. Brady, Catherine A. Hardee, Micah Schwartzman, Nelson Tebbe, Richard Schragger. 106 Kentucky Law Journal 535-812 (2017-2018).
• John Eidsmoe, Those Ten Commandments: Why Won't They Just Go Away?, 31 Regent University Law Review 11-29 (2018-2019).
• Rodney W. Harrell, State Religious Free-Exercise Defenses to Non-Discriminatory Laws: Still Relevant fter Masterpiece Cakeshop, 87 UMKC Law Review 297-333 (2019).
• Stephen M. Feldman, Having Your Cake and Eating It Too? Religious Freedom and LGBTQ Rights, 9 Wake Forest Journal of Law & Policy 35-62 (2018).

Transgender Bathroom Issue In High School Leads To Protest and Reaction

The ongoing issue in public schools of allowing transgender students to use bathrooms of their choice has now created issues of how to treat student protests, self-help, and reactions to them. AP reports that a group of some seven boys at Alaska's North Pole High School went into the girl's bathroom to protest the use of the boys' bathroom by a transgender student who is transitioning from female to male.  A girl who was blocked from leaving the girl's bathroom kneed one of the seven boys, injuring him enough that he was sent to a hospital.  The girl was suspended from school and the seven boys were also disciplined.

DOJ Drops Appeal In FGM Case; Proposes Amendments To Federal Statutory Ban

AP reports that the Department of Justice has dropped its appeal of the court's decision in United States v. Nagarwala. In the case, a Michigan federal district court held the federal ban on female genital mutilation (18 USC Sec. 116(a)) unconstitutional under the Commerce Clause, saying it is not a commercial activity; it is a local criminal activity which should be left to the states to regulate. (See prior posting.) In a letter (full text) sent to Congress last Wednesday, Solicitor General Noel Francisco proposed amendments to the the federal law needed to assure its constitutionality:

[C]oncurrently with submitting this letter, the Department is submitting to Congress a legislative proposal that would amend Section 116(a) to provide that FGM is a federal crime when ( 1) the defendant or victim travels in or uses a channel or instrumentality of interstate or foreign commerce in furtherance of the FGM; (2) the defendant uses a means, channel, facility, or instrumentality of interstate commerce in connection with the FGM; (3) a payment is made in or affecting interstate or foreign commerce in furtherance of the FGM; (4) an offer or other communication is made in or affecting interstate or foreign commerce in furtherance of the FGM; (5) the conduct occurs within the United States' special maritime and territorial jurisdiction, or within the District of Columbia or a U.S. territory; or (6) the FGM otherwise occurs in or affects interstate or foreign commerce. In our view, adding these provisions would ensure that, in every prosecution under the statute, there is a nexus to interstate commerce.

The letter to the Senate Judiciary Committee was sent in compliance with 28 USC Sec. 530D which requires DOJ to report to Congress when it, among other things, decides not to appeal a decision affecting the constitutionality of a federal statute.