Labor Department Proposes Religious Exemption Clarification For Government Contractors

Executive Order 11246 requires that all federal government contracts contain a provision barring the contractor from discriminating against employees on various grounds, including religion. The Executive Order, however, contains an exemption for "a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities." Today the Department of Labor published in the Federal Register proposed rules (full text) to clarify the scope of this exemption. Among other things, the proposal clarifies the kinds of entities covered by the exemption:

Religious corporation, association, educational institution, or society means a corporation, association, educational institution, society, school, college, university, or institution of learning that is organized for a religious purpose; holds itself out to the public as carrying out a religious purpose; and engages in exercise of religion consistent with, and in furtherance of, a religious purpose. To qualify as religious a corporation, association, educational institution, society, school, college, university, or institution of learning may, or may not: have a mosque, church, synagogue, temple, or other house of worship; be nonprofit; or be supported by, be affiliated with, identify with, or be composed of individuals sharing, any single religion, sect, denomination, or other religious tradition.

According to Axios, opponents of the rule change argue that it would allow government contractors to fire LGBTQ employees, or unmarried employees who are pregnant, on the basis of the employer's religious views.

Suit Challenges Virginia Fair Housing Act Provision Barring Religious Language In Ads

Suit was filed in a Virginia state trial court yesterday challenging a provision in the state's Fair Housing Code which provides that advertisements using "words or symbols associated with a particular religion.... shall be prima facie evidence of an illegal preference under this chapter which shall not be overcome by a general disclaimer." The complaint (full text) in Carter v. Virginia Real Estate Board, (VA Cir. Ct., filed 8/14/2019) contends that realtor Hadassah Hubbard Carter's free exercise, free speech and due process rights were infringed when the Virginia Real Estate Board claimed that she had violated the Fair Housing Code by use of a religious phrase in her e-mail signature line, and a Biblical quotation and a recitation of her religious beliefs on her business website. ACLJ issued a press release announcing the filing of the lawsuit.

Pro-Life Group Wins Challenge To University's Student Fee Allocation Process

In Apodaca v. White, (SD CA, Aug. 13, 2019), a California federal district court held that California State University- San Marcos cannot use mandatory student fees from objecting students to fund programs and speakers until the University adopts specific and detailed neutral standards for determining which funding applications will be granted. The suit was filed by a pro-life student group that was seeking funding for a lecture about abortion. ADF issued a press release announcing the decision.

Challenge To New York's Elimination of Religious Exemption From Vaccination Is Argued In Court

Media (such as Newsday, Gothamist, New York Law Journal) covered yesterday's oral arguments in a New York state trial court in a case challenging the constitutionality of New York's recent law that eliminated religious exemptions from vaccination requirements for school children. Robert F. Kennedy, Jr., a skeptic of vaccines, was one of the attorneys who argued the case for 55 families who are plaintiffs in the case.  They contend that the new law violates their religious freedom protections, and that legislators were motivated by hostility toward specific religious groups. The law was passed after an outbreak of measles in recent months. The state argued that the legislature was motivated by public health concerns.

Suits Filed As New York's Window For Old Child Sex Abuse Cases Opens

AP reports on the numerous lawsuits that were filed yesterday as the state's recently enacted Child Victim Act opened for the first time a one-year window for previously time-barred child sex abuse lawsuits. Defendants in various cases include the Catholic Church, Jehovah's Witnesses, Boy Scouts, Jeffrey Epstein, Rockefeller University and various public schools. Meanwhile, WBFO reports that statewide, 45 judges have been designated to hear Child Victim Act cases.

Georgia's Prisoner Grooming Policy Struck Down

In Smith v. Dozier, (MD GA, Aug. 7, 2019), (on remand from the 11th Circuit) a Georgia federal district court in an 18-page opinion held that the Georgia Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act. The state's policy allows inmates only to grow a beard up to one-half inch in length. No religious exemption from the requirement is provided.  The court went on to hold that for inmates who qualify for a religious exemption, the state must allow beards up to three inches in length. In its opinion, the court examined and rejected several justifications offered by the state for its challenged policy. Law.com reports on the decision.

Sex Abuse Lawsuit Against Jehovah's Witnesses To Be Filed Today

The provision in Sec. 3 of New York's Child Victims Act that creates a one-year window for filing previously time-barred child sex abuse lawsuits is triggered as of today.  New York Post reports that two former Jehovah's Witnesses will file suit in state court today:

Lawyers for Heather Steele, 48, and John Michael Ewing, 47, alleged at a press conference Monday that the Witnesses and its eight-member leadership council even maintain a database of church sex offenders that it’s kept secret....

Ewing claims in his lawsuit that a Jehovah’s Witness elder molested him “approximately four to six times per week” for four years, starting when he was 14 — including while his abuser was on vacation with his family.

Steele, who grew up in New York and is now living in Orlando, Florida, claims she was still in diapers when Jehovah’s Elder Donald Nicholson, a family friend, started molesting her in the mid-1970s.

Saudi Arabia Relaxes Legal Restrictions On Women

Human Rights Watch reported earlier this month on significant changes that Saudi Arabia has made to its restrictions on women's rights:

The legal changes, adopted by a Council of Ministers decision and endorsed by royal decree M.134, will allow Saudi women to obtain passports without the approval of a male relative, register births of their children, and benefit from new protections against employment discrimination. Saudi official sources have announced that women over 21 will no longer require male guardian permission to travel abroad, but the Council of Ministers decision makes no reference to women’s freedom to travel....

The Council of Ministers decision on July 31, 2019, published in the official gazette on August 1, amend the Travel Documents Law, the Civil Status Law, and the Labor Law.

White House Already Planning For Christmas

The White House issued a press release yesterday announcing that planning for the 2019 Christmas season is already under way at the White House.  It invites applications from individuals interested in volunteering to decorate the White House or act as greeters during Holiday Open Houses.  It also invites musicians including high school bands, choirs, and Christmas-themed entertainers to apply to perform during the Holiday Open Houses in December.

Homeless Shelters Excluded From City's Anti-Discrimination Ordinances

In Downtown Soup Kitchen v. Municipality of Anchorage, (D AK, Aug. 9, 2019), an Alaska federal district court issued a preliminary injunction barring enforcement of two of Anchorage's anti-discrimination ordinances against a faith-based homeless shelter for women which admits only individuals who were determined to be female at birth. Thus transgender men may be admitted, but transgender women may not.  The court concluded that homeless shelters are not covered by either the fair housing or public accommodation provisions of the city's code. ADF issued a press release announcing the decision.

Recent Articles of Interest

From SSRN:

• Micah Schwartzman, Must Laws Be Motivated by Public Reason? (Public Reason and Courts (Silje Langvatn, et al. eds., Cambridge University Press, Forthcoming).
• Oana Horhogea, Law and Religion. The Mystical Link, (June 30, 2019).
• Cecile Laborde, Abortion, Marriage and Cognate Problems, (American Journal of Jurisprudence (July 2018)).
• Matthew Segal, America’s Conscience: The Rise of Civil Society Groups Under President Trump, (UCLA Law Review, Vol. 65, No. 6, 2018).
• Charles A. Sullivan, Making Too Much of Too Little?: Why 'Motivating Factor' Liability Did Not Revolutionize Title VII, (August 2, 2019).
• Eric Steven Smith, Exploiting the Charitable Contribution Deduction's Hypersalience, (Utah Law Review, Forthcoming).

From SSRN (Non-US Law):

• Leah Bornstein-Makovetsky, The Welfare of the Minor As a Fundamental Principle Guiding Guardianship and Custody Issues in Ottoman Jewish Society, (Forthcoming, International Journal of the Jurisprudence of the Family).
• Harlan Grant Cohen, The Primitive Lawyer Speaks!: Thoughts on the Concepts of International and Rabbinic Laws, (Villanova Law Review, Forthcoming).
• Avishalom Westreich, Surrogacy and Egg Donation in Israel: Legal Arrangements, Difficulties, and Challenges, (Fundamental Legal Problems of Surrogate Motherhood - Global Perspective (Piotr Mostowik, ed., Warsaw, 2019)).
• Sujit Choudhry, Postcolonial Proportionality: Johar, Transformative Constitutionalism and Same Sex Rights in India, (Philipp Dann, ed., The Global South and Comparative Constitutional Law (Oxford University Press, Forthcoming)).
• Ayesha Umar, Assessing Social Inclusion through Transgender Legal Reforms in Pakistan, (October 7, 2018).
• Erum Sattar, Property Rights for Landless Agricultural Workers and the Flexibility of Hanafi Land Law Jurisprudence: A Solution for Rural Displacement?, (August 1, 2019).

From SmartCILP:

• Michael Arthur Vacca, Education and Religious Freedom in the Toledo Guiding Principles: A Comparative Analysis Between the Holy See and the United States, 36 Arizona Journal of International & Comparative Law 111-132 (2019).
• Daniel Altaras, Separation of Synagogue and State in Israel, 36 Arizona Journal of International & Comparative Law 133-163 (2019).
• James D. Nelson, Corporate Disestablishment, 105 Virginia Law Review 595-654 (2019).
• Samuel W. Calhoun, Inappropriate for Establishment Clause Scrutiny: Reflections on Mary Nobles Hancock's Note. God Save the United States and this Honorable County Board of Commissioners: Lund, Bormuth, and the Fight Over Legislative Prayer, 76 Washington & Lee Law Review 485-508 (2019).

Court Rejects School's Transgender Bathroom Restrictions

In Grimm v. Gloucester County School Board, (ED VA, Aug. 9, 2019). a Virginia federal district court held that a school system violated Title IX and the equal protection clause of the 14th Amendment when it prevented a transgender male student from using rest rooms that correspond with his gender identity. The court rejected the school's argument that its policy is substantially related to protection of student privacy.  The court also issued a permanent injunction requiring the school to update the student's school records to reflect the male gender listed on the student's updated birth certificate. Washington Post reports on the decision.

Hajj Is Underway In Saudi Arabia

As reported by Time, in Saudi Arabia yesterday (Friday, Aug. 9) more than 2 million Muslims gathered at Mecca to begin the Hajj. The Conversation has a detailed explanation of each of the five days' rituals.

7th Circuit Clarifies Application of Ministerial Exception Doctrine

In Sterlinski v. Catholic Bishop of Chicago, (7th Cir., Aug.8, 2019), the U.S. 7th Circuit Court of Appeals in an opinion by Judge Easterbrook held employment discrimination allegations brought by an organist in a Catholic church must be dismissed under the "ministerial exception" doctrine.  In deciding the case, the court clarified the 7th Circuit's approach to determining when the ministerial exception doctrine will apply:

If the Roman Catholic Church believes that organ music is vital to its religious services, and that to advance its faith it needs the ability to select organists, who are we judges to disagree? Only by subjecting religious doctrine to discovery and, if necessary, jury trial, could the judiciary reject a church’s characterization of its own theology and internal organization. Yet it is precisely to avoid such judicial entanglement in, and second-guessing of, religious matters that the Justices established the rule of Hosanna-Tabor....

It is easy to see a potential problem with a completely hands-off approach. Suppose a church insists that everyone on its payroll, down to custodians and school-bus drivers, is a minister. That is not fanciful—it is what one religious group did assert in Tony & Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985)....

The answer lies in separating pretextual justifications from honest ones....  Once the defendant raises a justification for an adverse employment action, the plaintiff can attempt to show that it is pretextual. The defense bears the burden of articulating the justification, but the plaintiff bears the burden of showing that the justification is a pretext.

Near the end of his opinion, Judge Easterbrook adds an interesting tangential discussion of the history of music in the Catholic Church:

Even Hieronymus von Colloredo, the Prince-Archbishop of Salzburg who sacked Wolfgang Mozart, understood that music has a vital role in the Roman Catholic faith. After Colloredo decided that the mass, including its music, must not  exceed 45 minutes, Mozart asked for leave to travel. Colloredo refused and fired him.... Colloredo thought that lesser (and less demanding) musicians would suffice; he did not remove music from the mass. In 1782 he abolished instrumental music in church and severely limited accompanied music, but the organ remained. The rest of the world gained from Colloredo’s decisions, as Mozart moved to Vienna and went on to produce secular masterpieces such as the Marriage of Figaro and the Jupiter Symphony, as well as two glorious masses in which the music alone exceeds 45 minutes (the Mass in C minor, K. 427/417a, and the Requiem, K. 626).

3rd Circuit Upholds Cross On County Seal

In one of the first cases to rely on the U.S. Supreme Court's decision in June rejecting an Establishment Clause challenge to the 94-year old Bladensburg Cross, the U.S. 3rd Circuit Court of Appeals yesterday rejected a challenge to a Latin cross on the 75-year old official seal of Lehigh County, Pennsylvania. In Freedom From Religion Foundation, Inc. v. County of Lehigh, (3d Cir., Aug. 8, 2019), the 3rd Circuit said in part:

American Legion confirms that Lemon does not apply to “religious references or imagery in public monuments, symbols, mottos, displays, and ceremonies.”... Instead, informed by four considerations, the Court adopted “a strong presumption of constitutionality” for “established, religiously expressive monuments, symbols, and practices.”...

WFMZ News reports on the decision. [Thanks to Tom Rutledge for the lead.]

Seventh Day Adventist Tennis Players Sue Over Tournament Scheduling

Suit was filed this week in a Washington federal district court by two high school tennis players who are Seventh Day Adventists and were precluded from participating in state championship tournaments because matches were scheduled on their Sabbath (Friday night/ Saturday).  The complaint (full text) and motion for preliminary injunction (full text) in J.G.C. v. Washington Interscholastic Activities Association, (WD WA, filed 8/6/2019) allege that plaintiffs' free exercise and equal protection rights were infringed, and that the anti-discrimination provisions of Washington law and the Establishment Clause were violated in two respects.  Plaintiffs object to tournament scheduling that includes Friday evening/ Saturday games. They also object to tournament rules that require players participate in all events, except in case of injury, illness or unforeseen events.  Religious accommodation is not permitted. Becket issued a press release announcing the filing of the lawsuit.

Religious Activist Fined For Burning Library's LGBTQ Children's Books

In Orange City, Iowa yesterday, religious activist Paul Robert Dorr was found guilty of criminal mischief and fined $125 for burning four children's books that he checked out of the public library. As reported by the Des Moines Register, the books had LGBTQ themes. Dorr posted a video to Facebook showing him throwing the books into a burning barrel after he denounced the Orange City library for having the books.

Israel's Election Laws Require Advertising Companies to Sell Space For Objectionable Ads

In Israel yesterday, the Central Elections Committee, the body within the Knesset that enforces election laws, ruled that two major advertising companies in Israel cannot refuse to sell advertising space to Noam-- a far-right religious conservative party known for its opposition to gay rights.  As reported by the Times of Israel, the advertising companies-- which control large amounts of the billboard and bus advertising space-- objected to ads targeting gays and Reform Jews.  The ads read:

[Gay] pride and the buying of children, or having my son marry a woman – Israel chooses to be normal.

Reform [Judaism] or my grandson remains Jewish – Israel chooses to be normal.

Israel's 1959 Election Law (Publicizing Methods) prohibit companies selling election advertising from discriminating between political parties in any way. The Elections Committee's decision was handed down by Supreme Court Justice Neal Hendel.

Suit Charges Mormon Church With Intentional Misrepresentation of Its History

A former member of the Mormon Church filed suit this week in a Utah federal district court accusing the "Mormon Corporate Empire" of fraud, breach of fiduciary duty, RICO violations and intentional infliction of emotional distress. The 75-page complaint (full text) in Gaddy v. Corporation of the President of the
Church of Jesus Christ of Latter-day Saints, (D UT, filed 8/5/2019), asks for certification as a class action and contends:

2. This is not a claim for propagating false religious beliefs as part of the Mormon Church. Rather, it is a claim that the material facts upon which Mormonism is based have been manipulated through intentional concealment, misrepresentation, distortion and or obfuscation by the COP to contrive an inducement to faith in Mormonism’s core beliefs.

3. For almost 200 years, the COP, through its agent leaders, has represented Mormonism to be the restoration of the gospel of Jesus Christ, claiming that the divine authority essential to that gospel (Melchizedek and Aaronic priesthoods) was taken from the Earth after Christ’s crucifixion. It was purportedly restored hundreds of years later to Joseph Smith, Jr....

4. When the true facts are substituted for the longstanding false orthodox narrative, the story that emerges has shocked devoted Mormons who have made life-altering decisions based upon a scheme of lies.

Courthouse News Service reports on the filing of the lawsuit.

Factional Dispute In Church Dismissed

In In re Torres, (TX App., July 30, 2019), a Texas appellate court ordered dismissal of a suit between two factions of a church known as Templo Bautista.  According to the court:

Ramirez and Herrera complain about the removal of a pastor, his replacement by another, the manner in which that was done, whether it complied with the church procedures, the removal of parishioners as church members, and the way Torres and those aligned with him came to govern their church.

The court held that these "are controversies insulated from judicial interference under the neutral principles methodology. Thus, the trial court lacked subject-matter jurisdiction to address or regulate them."