New Jersey Town Settles With Native American Tribe Seeking Use of Its Sacred Land

Mahwah Patch reports that a settlement has been reached in four pending cases pitting the Native American Ramapough Lenape Nation against the Township of Ramapough, New Jersey. Three of the cases are land use and zoning claims against the Indian Tribe. The fourth is a federal civil rights suit by the Tribe  claiming that local officials along with a neighboring housing association are attempting to prevent the Ramapoughs from using their own prayer ground for religious activities. (See prior posting.) Under the settlement agreement, the Tribe can continue to hold community and religious gatherings at its Sweet Water Prayer Site, and the Township will not try to remove the Tribe's sacred prayer circle or stone altar from the site. The settlement also dismisses millions of dollars of fines that had been levied against the Tribe. A civil rights action by the Tribe against the Ramapo Hunt & Polo Club has not been settled. That suit alleges that the Club, which borders the Tribe's Prayer Site, has conspired to deny the Tribe the use of its own land. Center for Constitutional Rights also issued a press release announcing the settlement agreement.

Rhode Island Catholic Diocese Posts List of Credibly Accused Clergy

As reported by AP, the Diocese of Providence (Rhode Island) yesterday posted on its website a list of 50 clergy who have been credibly accused of sexual abuse of children since 1950.  Over half of those on the list are now deceased. Those who are living have all been removed from the ministry (or in one case resigned before allegations surfaced).

New Tax Law Tweaks Non-Profit Annual Filing Requirements

President Trump yesterday signed the bipartisan Taxpayer First Act (full text) into law. The bill makes two changes applicable to non-profit organizations. Section 3101 provides that those organizations required to file annual returns must file them electronically. Section 3102 requires the IRS to give notice to a non-profit before revoking its tax exempt status for failure to file annual returns.  It should be noted that under IRC Sec. 6033(a)(3), churches and small religious organizations are exempt from annual return filing requirements. The Hill reports on the President's signing of the bill into law.

Church Sues Over Cannabis Raid

Redheaded Blackbelt reported yesterday:

A church called Redwood Spiritual Healing Ministry filed a lawsuit Thursday, June 27 against the County of Humboldt and the California Department of Fish and Wildlife (CDFW) alleging violations of its 1st Amendment right to religious freedom as well as due process violations when a multiple agency task force destroyed cannabis as well as private property during the execution of a search warrant. The case further alleges that the County of Humboldt may have withheld relevant information from a judge by having CDFW file the Affidavit for the search warrant without informing the judge that the property in question may be a church under the law.

The full text of the complaint in Redwoods Spiritual Healing Ministry v. Humboldt County, California, (CA Super. Ct., filed 6/27/2019) embedded at the end of the news report on the lawsuit.

Recent Articles of Interest

From SSRN:

• Susanna Mancini, European Law and the Veil. Muslim Women from Victims to Emblems of the Enemy, (A. Melloni, F. Cadeddu (eds.) Religious Literacy, Law and History, Routledge, 2019).
• Michael Quinlan, Christianity And The Law: Trial Separation Or Acrimonious Divorce?, (2018).
• Michael Quinlan, Law And Religion In Western Australia: Cooperation or Conflict?, (June 17, 2019).
• Elizabeth Sepper, Religious Exemptions, Harm to Others, and the Indeterminacy of a Common Law Baseline, (Kentucky Law Journal, Vol. 106, 2018).
• Nathan B. Oman, Temple, Talmud, and Sacrament: Some Christian Thoughts on Halakhah, (Villanova Law Review, Forthcoming 2019).
• Peter J. Oliver & Philippa Watson, Is the Court of Justice of the European Union Finding its Religion?, (Fordham International Law Journal, Vol. 42, No. 3, 2019).
• Matteo Winkler, Same-Sex Marriage and Italian Exceptionalism, (ICL Journal 2018; 12(4); 431–456).
• Hannah Haksgaard, Blending Surnames at Marriage, (30 Stanford Law & Policy Review __ (2019) (Forthcoming)).
• Shazny Ramlan, Religious Law for the Environment: Comparative Islamic Environmental Law in Singapore, Malaysia, and Indonesia, (NUS Centre for Asian Legal Studies Working Paper 19/03 (2019).

From SmartCILP:

• Derrick Bell, Law As a Religion, 69 Case Western Reserve Law Review 265-274 (2018).
• Jean Stefancic, Law, Religion, and Racial Justice: A Comment on Derrick Bell's Last Article, 69 Case Western Reserve Law Review 341-354 (2018).
• Mark L. Rienzi, Administrative Power and Religious Liberty at the Supreme Court, 69 Case Western Reserve Law Review 355-394 (2018).
• Twentieth Annual Review of Gender and the Law, 20 Georgetown Journal of Gender & Law 265-540 (2019).

EEOC Sues United Methodist's Global Ministries

The EEOC announced Friday that it has filed a federal lawsuit against  the Atlanta-based Global Ministries of the United Methodist Church, claiming that it fired an employee for complaining about racial discrimination. The lawsuit alleges that an employee who was hired to write articles for Global Ministries' website was fired after she complained several times to the human resources department about discriminatory and retaliatory treatment.

HHS Agrees To Delay In Implementing New Health Care Conscience Rules

The Department of Health and Human Services will delay at least until Nov.22 implementation of its newly adopted rules for conscience protection of health care providers.  The move came through an consent order submitted by the Justice Department and the San Francisco City Attorney Dennis Herrera in a lawsuit brought by Herrera challenging the new rules. (See prior posting.) The delay will allow time for the court to decide the merits of the challenge. Announcing the filing of the consent order, Herrara said in part:

The Trump administration is trying to systematically limit access to critical medical care for women, the LGBTQ community, and other vulnerable patients. We’re not going to let that happen. We will continue to stand up for what’s right. Hospitals are no place to put personal beliefs above patient care. Refusing treatment to vulnerable patients should not leave anyone with a clear conscience.

Hospital Settles EEOC Suit For Failure To Accommodate Anti-Vaccine Beliefs of Employee

EEOC announced last week that Memorial Healthcare, an Owosso, Michigan hospital, has settled a suit alleging failure to reasonably accommodate an employee's religious beliefs, in violation of Title VII of the 1964 Civil Rights Act. According to the Commission:

Memorial refused to accommodate the sincerely held religious requirement of the transcriptionist, whose Christian beliefs require her to forgo inoculations. The transcriptionist offered to wear a mask during flu season. This was an acceptable alternative under hospital policy for those with medical problems with the flu shot, but Memorial refused to extend it to her. It then rescinded her offer of employment....

Under the consent decree settling the suit, Memorial confirms that it now permits those with religious objections to wear masks in lieu of having a flu vaccine. The hospital will also train managerial staff participating in the accommodation process on the religious accommodation policy. In addition, the transcriptionist will receive $34,418 in back pay, along with $20,000 in compensatory damages and $20,000 in punitive damages.

[Thanks to Tom Rutledge for the lead.]

Supreme Court GVR's Case On Cross In Public Park

Today the U.S. Supreme Court granted the petition for certiorari in Pensacola, Florida v. Kondrat'yev (Docket No. 18-351, GVR 6/28/2019) (Order List), summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of American Legion v. American Humanist Assn. decided earlier this month. (See prior posting.) In the remanded case, the 11th Circuit reluctantly ffirmed a Florida district court's Establishment Clause decision ordering Pensacola to remove a 34-foot Latin cross from a public park. (See prior posting.)

Supreme Court Grants Review In School Aid Case

The U.S. Supreme Court today granted certiorari in Espinoza v. Montana Department of Revenue,(Docket No. 18-1195, cert. granted 6/28/2019). (Order List).  In the case, the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. The question presented by the Petition for Certiorari is:

Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?

Here is the SCOTUSblog case page with links to all the petitions and briefs.

Pennsylvania Appeals Court Reverses Statute of Limitations Dismissal of Clergy Abuse Case

In Rice v. Diocese of Altoona-Johnstown, (PA Super., June 11, 2019), a 3-judge appellate panel allowed plaintiff, who was a victim of clergy sexual abuse in the 1970's and 1980's, to move ahead with her suit alleging that the Diocese and its bishops committed fraud, constructive fraud, and civil conspiracy to protect their reputations and that of her childhood priest and alleged abuser. She sued after a Pennsylvania grand jury report detailed clergy abuse.  The trial court dismissed on statute of limitations grounds. However the appeals court reversed holding that only a jury may determine whether, for purposes of tolling of the statute of limitations, plaintiff reasonably investigated the Diocesan Defendants for their intentional torts.  It also held that since the statute of limitations may be tolled by fraudulent concealment, the Church's silence may constitute fraudulent concealment when a jury finds that plaintiff had a fiduciary relationship with a religious institution or its leadership. The Pittsburgh Post-Gazette yesterday reported that the Diocese will seek en banc review.

Trump Speaks to Faith and Freedom Conference

President Trump yesterday spoke for an hour to those attending the Faith and Freedom Coalition “Road to Majority” 2019 Conference in Washington, D.C. (Full text of remarks.)  In his wide ranging comments on the accomplishments of his Administration, he said in part:

And we are once again defending and promoting our great American values.  And we’re saying, “Merry Christmas” again.  Do you notice?  Remember?  Remember?  (Applause.)   I usually save that for November, December, but I was just thinking — as I mentioned, I was saying, we’re going to say, “Merry Christmas.”  They were all taking it down off the department stores — everything.  You’d see a big red — they’d say, “Happy Holidays.”  No “Merry Christmas.”  They’re saying, “Merry Christmas,” again.  It’s very interesting.  And they’re proud of it.  (Applause.)...

And now, by the way, because of what we did with respect to the Johnson Amendment — you know what I’m talking about — our leaders, like all of the people that have been so supportive — our pastors, our ministers, our priests, our rabbis — all of our religious leaders — every — we’re allowed to speak again.  We’re allowed to talk without having to lose your tax exemption, your tax status, and being punished for speaking.  (Applause.)  And the people that we most want to hear, our great clergy, is now able to speak without fear of retribution....

We’re cherishing our nation’s religious heritage once again.  My administration has taken historic action to protect religious liberty. (Applause.)  We are protecting the conscience rights of doctors, and nurses, and teachers, and groups like the Little Sisters of the Poor.  We’re with them.  (Applause.)....

Americans’ belief in God has forged the character of our country and made our nation a light unto the world.  We are respected again as a nation, I will tell you that.  And I’m not only talking about from a religious standpoint.  Our country is respected again.  (Applause.)

Minnesota Diocese Settles With Abuse Victims In Bankruptcy Proceeding

The Diocese of New Ulm, Minnesota announced yesterday that along with area parishes it has reached a settlement in its bankruptcy proceeding with victims and survivors of sexual abuse.  The Diocese and area parishes, along with their insurance companies, will pay $34 million which will be distributed to claimants. The Diocese has also agreed to disclose the names of all clergy with credible claims of abuse against them. The eventual bankruptcy court order will bar all other claims that arose before confirmation of the plan of reorganization. AP reports on the settlement.

Survey Finds Increased Support for Religious-Based Refusals To Serve Small Business Customers

On Tuesday, the Public Religion Research Institute released the results of its survey finding increased public support for allowing small businesses to refuse service to various minority groups because of the business owner's religious views. (Full text of survey results.) The report finds 30% say it should be permissible to refuse service to gays or lesbians on religious grounds, while 29% say the same for refusals to serve transgender individuals. 24% support allowing refusal to serve atheists; 22% say this should be allowed as to Muslims.19% say it should be allowed as to Jews. 15% say small businesses should be able to refuse service to African-Americans if it conflicts with religious beliefs.

District Court, Citing 1st Circuit Precedent, Upholds Maine's School Funding Plan

In Carson v. Makin, (D ME, June 26, 2019), the Maine federal district court rejected a 1st Amendment challenge to Maine's program for paying tuition to private high schools for students in districts which do not operate their own high schools. The program excludes sectarian schools from participating. The district court approved Maine's plan on the basis of prior 1st Circuit decisions, despite challengers' argument that the Supreme Court's decision in Trinity Lutheran Church v. Comer should change the result. The district court said in part:

My decision not to decide the ultimate question the parties and amici pose—whether Trinity Lutheran has changed the outcome in Eulitt—is no great loss for either the parties or the amici. It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court. In the First Circuit, the parties can argue their positions about how Trinity Lutheran affects Eulitt. I congratulate them on their written and oral arguments in this court. I hope that the rehearsal has given them good preparation for their argument in the First Circuit (and maybe even higher). My prompt decision allows them to proceed to the next level expeditiously.

(See prior related posting.) Maine Public Radio reports on the decision.

9th Circuit, Over Dissents, Denies En Banc Rehearing In Ministerial Exception Case

In Biel v. St. James School, (9th Cir., June 25, 2019), the U.S. 9th Circuit Court of Appeals denied a rehearing en banc in an ADA case brought by a 5th grade teacher at a Catholic elementary school. The panel, in a 2-1 decision, held that the teacher is not a "minister" for purposes of the ministerial exception doctrine. (See prior posting.)  Nine judges dissented from the denial of an en banc  rehearing in a 24-page opinion written by Judge Nelson, saying in part:

By declining to rehear this case en banc, our court embraces the narrowest construction of the First Amendment’s “ministerial exception” and splits from the consensus of our sister circuits that the employee’s ministerial function should be the key focus.

[Thanks to Jeff Pasek for the lead.] 

Workplace Hate Crime Meets Commerce Clause Threshold

In United States v. Hill, (4th Cir., June 13, 2019), the U.S. 4th Circuit Court of Appeals, in a 2-1 decision, held that the federal Hate Crimes Prevention Act can constitutionally be applied to the assault of a co-worker who was preparing packages for interstate sale and shipment.  Defendant boastfully admitted to assaulting the coworker because of his sexual orientation. Finding that the commerce clause was broad enough to authorize federal coverage in this case, the majority said in part:

[W]hen Congress may regulate an economic or commercial activity, it also may regulate violent conduct that interferes with or affects that activity.

Judge Agee dissented, arguing:

To allow Congress to exercise its Commerce Clause power over the noneconomic offense of a bias-motived punch would allow Congress to exercise its Commerce Clause power based on such indirect—and often, as here, non-existent—connection to commerce that it converts the Clause into a federal police power.

House Holds Hearing On "Do No Harm" Act

The U.S. House Education and Labor Committee held a hearing yesterday on H.R. 1450, the "Do No Harm" Act. The hearing was titled Do No Harm: Examining the Misapplication of the 'Religious Freedom Restoration Act'. A video of the full 3 hour and 45 minute hearing plus transcripts of the prepared testimony of the committee chairman and the witnesses are all available from the committee's website.   The Opening Statement by Committee Chairman Robert C. “Bobby” Scott reads in part"

The passage of RFRA was meant to re-instate a broader protection of free exercise rights. It was not meant to erode civil rights under the guise of religious freedom. Importantly, it did not change the First Amendment’s Establishment Clause, which ensures that the government cannot elevate certain religious or moral beliefs above the law.

No sooner than RFRA was enacted, the floodgates began to open and RFRA has since been used to: • Legitimize housing discrimination against single mothers and minorities, • Shield church groups from paying child abuse victims, and • Impose extreme emotional harm on schoolchildren based on their gender identity.

Since the beginning of the Trump administration, this troublesome trend has only gotten worse. On May 4th, 2017, the Trump administration issued an Executive Order, undermining RFRA’s original intent and allowing individuals to use 'conscience-based objections' to override civil rights protections....

We must pass legislation that restores RFRA’s original intent. H.R. 1450, the Do No Harm Act, would help ensure that our right to religious liberty does not threaten fundamental civil and legal rights.

Specifically, the bill would prevent RFRA from being used to deny: • Equal opportunity and protection against discriminatory laws; • Workplace protections and protections against child abuse; • Health care access, coverage, and services; and, • Contracted services.

Christian School Sues Over Exclusion From State Funding Programs

Suit was filed on Monday in a Maryland federal district court by a preschool- 8 Christian school that was excluded from Maryland's scholarship program for low-income students, as well as the state's textbook and technology and its aging schools programs.  The complaint (full text) in Bethel Ministries, Inc. v. Salmon, (D MD, filed 6/24/2019), alleges that the school does not discriminate in admissions on the basis of sexual orientation, but that it was nevertheless disqualified because of its policy on transgender students and on same-sex marriage.  According to the complaint:

50. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that marriage is the union of one man and one woman. 

51. Faculty, staff, and students are expected to align their conduct with Bethel’s belief that biological sex as either male or female is an immutable gift from God, and therefore identify with, dress in accordance with, conduct themselves in keeping with, use the pronouns associated with, and use the facilities provided for, their biological sex....

53. Bethel’s conduct policy prohibits any communication of a sexual nature, such as identifying as the opposite sex, or expressing romantic attraction towards another student.

The school alleges that disqualifying it on this basis violates its 1st and 14th Amendment rights. ADF issued a press release announcing the filing of the lawsuit.

State Department Issues 2018 International Religious Freedom Report

On June 21, the U.S. State Department released its 2018 Report on International Religious Freedom, saying:

The annual Report to Congress on International Religious Freedom – the International Religious Freedom Report – describes the status of religious freedom in every country. The report covers government policies violating religious belief and practices of groups, religious denominations and individuals, and U.S. policies to promote religious freedom around the world. The U.S. Department of State submits the reports in accordance with the International Religious Freedom Act of 1998.