British Parliament Approves Regulations Extending Civil Partnerships to Opposite-Sex Couples

Law & Religion UK reports that in Britain, the Civil Partnership (Opposite-sex Couples) Regulations 2019 were approved by the House of Commons on Oct. 31 and by the House of Lords on November 5.

Recent Articles and Books of Interest

From SSRN:

• Doug Magendanz, The Fiasco of the Righteous: A Note on Justice, (October 21, 2019).
• Thomas Charles Berg, Life Patents, Religion, and Justice: A Summary of Themes, (From Patents on Life: Religious, Moral, and Social Justice Aspects of Biotechnology and Intellectual Property, (Thomas C. Berg, Roman Cholij, and Simon Ravenscroft eds., Cambridge University Press, 2019, Forthcoming)).
• Sohail Wahedi, The Constitutional Dynamics of Religious Manifestations, (2019, PhD thesis).
• George Letsas, Accommodating What Needn't Be Special, (The Law & Ethics of Human Rights, Volume 10, Issue 2, Pages 319–340, 2018).
• Tanner Bean & Robin Fretwell Wilson, When Academic Freedom Collides with Religious Liberty of Religious Universities, (University of St. Thomas Law Journal, Vol. 15, No. 2, 2019).
• Barry Winston Bussey, The Independence of Judicial Conscience, (Journal of Christian Legal Thought, Vol. 9, No. 2, 2019).
• David Crawford, Gender Identity and Nihilism: Some Anthropological Implications of Recent Caselaw, (October 7, 2019).
• Craig A. Stern, A Mistake of Natural Law: Sir William Blackstone and the Anglican Way, University of Bologna Law Review, Vol. 4, No. 2 (2019)).

From SSRN (Non-U.S. Law):

• Jeffrey A. Redding, A Secular Failure: Sectarianism and Communalism in Shayara Bano v. Union of India, (October 23, 2019).
• Zubair Abbasi, Waqf in Pakistan: Rebirth of a Traditional Institution, (February 1, 2019).
• Samuel Singer, Charity Law Reform in Canada: Moving from Patchwork to Substantive Reform, (Alberta Law Review 57:3, Forthcoming).
• Jeffrey A. Redding, A Secular Failure: Sectarianism and Communalism in Shayara Bano v. Union of India (October 23, 2019).
• Ellen Johnson, Apostasy, Human Rights and Hate Crime in England and Wales: A Mixed Methods Study, (October 24, 2019).
• Md. Ashabur Rahman, Protection of Right to Divorce for Hindu Woman,(October 30, 2019).

Recent and Forthcoming Books:

• Haider Ala Hamoudi, Islamic Law in a Nutshell, (West Academic Publishing, Nov. 22, 2019).
• Thomas S. Kidd, Who Is An Evangelical?: The History of a Movement in Crisis, (Yale University Press, Sept. 24, 2019).
• Heiner Bielefeldt and Michael Wiener, Religious Freedom Under Scrutiny, (University of Pennsylvania Press, Dec. 2019).

India's Supreme Court Awards Disputed Ayodhya Site To Hindus

In M Siddiq (D) Thr Lrs v. Mahant Suresh Das & Ors, (India Supreme Court, Nov. 9, 2019), in an opinion that spans 1,045 pages, the Supreme Court of India ruled on a decades-old dispute over a piece of land claimed by both Hindus and Muslims.  BBC summarized the decision:

India's Supreme Court has ruled that the disputed holy site in Ayodhya in northern India should be given to Hindus who want to build a temple there.

The case, which has been bitterly contested for decades by Hindus and Muslims, centres on the ownership of the land in Uttar Pradesh state.

At the centre of the row is the 16th Century Babri mosque which was demolished by Hindu mobs in 1992, sparking riots that killed nearly 2,000 people.

Muslims would get another plot of land to construct a mosque, the court said.

In its opinion, the court explained:

The disputed land forms part of the village of Kot Rama Chandra or, as it is otherwise called, Ramkot at Ayodhya, in Pargana Haveli Avadh, of Tehsil Sadar in the District of Faizabad. An old structure of a mosque existed at the site until 6 December 1992. The site has religious significance for the devotees of Lord Ram, who believe that Lord Ram was born at the disputed site. For this reason, the Hindus refer to the disputed site as Ram Janmabhumi or Ram Janmasthan (i.e. birth-place of Lord Ram). The Hindus assert that there existed at the disputed site an ancient temple dedicated to Lord Ram, which was demolished upon the conquest of the Indian sub-continent by Mughal Emperor Babur. On the other hand, the Muslims contended that the mosque was built by or at the behest of Babur on vacant land. Though the significance of the site for the Hindus is not denied, it is the case of the Muslims that there exists no proprietary claim of the Hindus over the disputed property.

Reuters has more extensive reporting on the decision. [Thanks to Scott Mange for the lead.]

New Stay of Execution For Buddhist Inmate Over Access To Chaplain

In Murphy v. Collier, (SD TX, Nov. 7, 2019), a Texas federal district court stayed the execution of Patrick Murphy because of differential treatment of the religious needs of prisoners being executed. The U.S. Supreme Court stayed a previous execution date because of Texas' policy to allow a Christian chaplain to be in the execution chamber, but Murphy's Buddhist spiritual adviser could only be in an adjacent room. (See prior posting.) Texas then modified its procedures and allowed no chaplains in the execution chamber. (See prior posting.) However Murphy claims that there is still differential treatment:

Murphy’s amended complaint, however, has moved its primary focus to the interaction an inmate has with his spiritual advisor before entering the execution chamber..... [A]ll inmates have access to their spiritual advisor during business hours in the two-and-a-half days leading up to the execution. An inmate, however, may only meet with non-TDCJ spiritual advisors in the holding area (generally referred to as the “death house”) between 3:00 and 4:00 p.m. on the day of execution. For the next two hours, preparations are made for the execution. The inmate may make phone calls, including to his spiritual advisor, until 5:00 p.m. Only TDCJ personnel may interact with the inmate thereafter.

The policy, however, does not place any limitation on visits by TDCJ-employed clergy, “who appear to have access to an inmate until the minute he enters the execution chamber.”... Murphy argues that the amended policy still favors some religions over others because TDCJ-employed chaplains, who are all Christian or Muslim, have greater access to the condemned than non-TDCJ employee spiritual advisors.

The court concluded:

The concerns raised by the amended complaint’s focus on the pre-execution procedure are as compelling as those in the original complaint..... A stay will allow the Court time to explore and resolve serious factual concerns about the balance between Murphy’s religious rights and the prison’s valid concerns for security.

Texas Tribune reports on the decision.

State False Advertising Ban Does Not Apply To Catholic Schools

In State of West Virginia ex. rel. Morrisey v. Diocese of Wheeling-Charleston, (WV Cir. Ct., Nov. 6, 2019), a West Virginia Trial Court held that West Virginia's Consumer Credit and Protection Act does not apply to religious institutions' advertising or sale of educational or recreational services.  In the case, plaintiffs contended that the Diocese engaged in deceptive acts or practices by failing to disclose that in the past it had knowingly employed some priests and laity that had sexually abused children while it advertises a safe learning environment in its schools and camps. The court also held that application of the Act to religious schools would involve an unconstitutional excessive entanglement of church and state. After reaching its conclusions, the trial court stayed the action and certified the questions raised in the case to the West Virginia Supreme Court. The Intelligencer reports on the decision. [Thanks to Mark Chopko for the lead.]

Court Invalidates HHS Conscience Rules

In State of New York v. U.S. Department of Health and Human Services, (SD NY, Nov. 6, 2019), a New York federal district court vacated a 2019 rule promulgated by HHS which, as summarized by the court:

purports to interpret and provide for the implementation of more than 30 statutory provisions that recognize the right of an individual or entity to abstain from participation in medical procedures, programs, services, or research activities on account of a religious or moral objection. [See prior posting].

The court summarized the conclusions it reached in its 147-page opinion:

With respect to the Church, Coats-Snowe, and Weldon Amendments, HHS was never delegated and did not have substantive rule-making authority.....

 With respect to all Conscience Provisions, HSS was never delegated and did not have authority to promulgate a Rule authorizing, as a penalty available to the agency for a recipient’s non-compliance, the termination of all of the recipient’s HHS funds....

With respect to all Conscience Provisions, the Rule is contrary to law... insofar as (1) in its application to the employment context, it conflicts with Title VII of the Civil Rights Act of 1964 ... to prescribe a framework governing the circumstances under which an employer must accommodate an employee’s religion-based objections; and (2) in its application to emergencies, it conflicts with the 1986 Emergency Medical Treatment and Labor Act....

With respect to all Conscience Provisions, HHS acted arbitrarily and capriciously in promulgating the Rule,... because (1) HHS’s stated reasons for undertaking rulemaking are not substantiated by the record before the agency, (2) HHS did not adequately explain its change in policy, and (3) HHS failed to consider important aspects of the problem before it.

With respect to all Conscience Provisions, HHS did not observe proper rulemaking procedure in promulgating the Rule... insofar as portions of the Rule that define “discriminate or discrimination” were not a “logical outgrowth” of HHS’s notice of proposed rulemaking....

With respect to all Conscience Provisions, the Rule’s authorization ... as a penalty ... in the event of a recipient’s non-compliance of the termination of all of the recipient’s HHS funds, violated the Separation of Powers and the Spending Clause of the Constitution, U.S. Const. art. I, § 8, cl. 1.

Reuters reports on the decision.

UPDATE: A press release from the Washington state Attorney General's office reports that on Nov. 7 a federal district court in Washington also found the new conscience rules invalid.

New York Trial Court Upholds Vaccination Requirement

The Rochester Democrat & Chronicle reports that a New York state trial judge in Seneca County has rejected a challenge by an Amish family to New York's requirements that students be vaccinated in order to attend public or private school. The suit claimed that the immunization requirement violates the protection of religious freedom set out in the state constitution. The court wrote in part:

the free exercise clause of the New York Constitution would yield to a valid exercise of the state’s police powers.

Recent Articles of Interest

From SSRN:

• Shaakirrah Sanders, Religious Healing Exemptions and the Jurisprudential Gap Between Substantive Due Process and Free Exercise Rights, (8 U.C. Irvine L. Rev. 633 (2018)).
• Farnush Ghadery, 'Sticking to Their Guns': The United Nations' Failure to See the Potential of Islamic Feminism for the Promotion of Women's Rights in Afghanistan, (October 8, 2019).
• Robin S. Maril, From Piggie Park v. Newman to Masterpiece Cakeshop v. Colorado Civil Rights Commission: Application of the Outward Facing Actions Test to LGBTQ Nondiscrimination Provisions, (Rutgers Journal of Law and Religion, Forthcoming).
• Rafael Domingo & John Witte, Christianity and Global Law: Introduction,(October 10, 2019).
• Brenda Bauges, Balancing Religious Liberties and Anti-Discrimination Interests in the Public Employment Context: The Impact of Masterpiece Cakeshop and American Legion, (54 U. Rich. L. Rev., Forthcoming).
• Sabah Mofidi, Christianity, Women’s Rights and Feminist Ethics; in an Interview With Prof. Cristina Traina, (October 12, 2019).
• Shahbaz Ahmad Cheema, Non-Repugnancy Decisions of the Federal Shariat Court of Pakistan: An Analysis of Politico-legal Ramifications, (October 13, 2019).
• Shahbaz Ahmad Cheema, An Unlikely Champion of Women’s Rights under Muslim Personal Law: Mawdudi on Anglo-Muhammadan Law, (October 13, 2019).
• Pauline Ridge, When Is the Advancement of Religion Not a Charitable Purpose?,(Canadian Journal of Contemporary and Comparative Law (Summer 2020, Forthcoming)).
• Charles A. Sullivan, Retaliation and Requesting Religion Accommodation, (Case Western Reserve Law Review, Vol. 70, 2020).
• Dustin N. Sharp, Prickles and Goo: Human Rights and Spirituality, (October 18, 2019).
• Christos Makridis, Human Flourishing and Religious Liberty: Evidence from Over 150 Countries, 2006-2018, (October 21, 2019).

2nd Circuit Allows Christian Adoption Agency To Continue Ongoing Cases Pending Appeal On Anti-Discrimination Law

In New Hope Family Services, Inc. v. Poole, (2d Cir., Nov. 4, 2019), the U.S. 2nd Circuit Court of Appeals issued a preliminary injunction allowing a Christian adoption agency, pending a decision on appeal of a lower court order, to continue to provide adoption services that are under way and ongoing without complying with New York's law barring discrimination on the basis of sex, sexual orientation, gender identity or marital status against applicants for adoption services. At the same time, the agency agreed to stop accepting all new clients while the appeal is pending. In May, the district court had rejected the agency's 1st and 14th amendment challenges to New York's anti-discrimination provisions. The Court of Appeals said in part:

On the motion record here, the court can conclude only that New Hope may succeed on the merits of its appeal; the likelihood of such success cannot confidently be predicted in advance of reviewing the circumstances and law as more fully presented by the parties in their merits briefs.

What can be determined even on the motion record, however, is that New Hope will suffer irreparable injury without the requested preliminary injunction pending appeal.

ADF issued a press release announcing the decision.

European Court Criticizes Greece's Procedure For Exemptions From Compulsory Religion Courses

In Papageorgiou and Others v. Greece, (ECHR, Oct. 31, 2019), the European Court of Human Rights in a chamber judgment held that Greece's system of exemptions of children from compulsory religious education classes in public schools violates freedom of education provisions and freedom of thought conscience and religion protected by the European Convention on Human Rights and Protocol Number 1 to the Convention.  Children who are not Orthodox Christians may be excused from the course. The court said in part:

the current system of exemption of children from the religious education course is capable of placing an undue burden on parents with a risk of exposure of sensitive aspects of their private life and that the potential for conflict is likely to deter them from making such a request, especially if they live in a small and religiously compact society, as is the case with the islands of Sifnos and Milos, where the risk of stigmatisation is much higher than in big cities. The applicant parents asserted that they were actually deterred from making such a request not only for fear of revealing that they were not Orthodox Christians in an environment in which the great majority of the population owe allegiance to one particular religion..., but also because, as they pointed out, there was no other course offered to exempted students and they were made to lose school hours just for their declared beliefs.

The Court also issued a Press Release summarizing the decision.

Hate Crime Charges Filed In Plot To Bomb Synagogue

Yesterday, the U.S. Attorney's Office in Colorado announced that a criminal complaint was filed charging a Colorado man with federal hate crimes for plotting to blow up a synagogue:

Richard Holzer, 27, of Pueblo, Colorado, was charged by criminal complaint with intentionally attempting to obstruct persons in the enjoyment of their free exercise of religious beliefs, through force and the attempted use of explosives and fire, in violation of Title 18, United States Code, Section 247.  

According to the affidavit in support of the criminal complaint, Holzer planned to destroy Temple Emanuel, a synagogue in Pueblo, Colorado, that is listed on the National Register of Historic Places. After visiting Temple Emanuel and observing Jewish congregants, Holzer, who self-identifies as a skinhead and a white supremacist, told undercover FBI agents that he wanted to do something that would tell Jewish people in the community that they are not welcome in Pueblo, and they should leave or they will die. The affidavit states that during a meeting with the undercover agents, Holzer repeatedly expressed his hatred of Jewish people and his support for RAHOWA, shorthand for a racial holy war. Holzer went on to suggest using explosive devices to destroy the Synagogue and “get that place off the map.” The affidavit notes that Holzer’s actions meet the federal definition of domestic terrorism in that his actions involve criminal acts dangerous to human life that are intended to intimidate or coerce a civilian population.

Ministerial Exception Requires Dismissal of Elementary Teacher's Pregnancy Discrimination Suit

In Hutson v. Concord Christian School, LLC, (ED TN, Nov. 4, 2019), a Tennessee federal district court dismissed an employment discrimination suit brought by an elementary teacher at a Baptist school.  The teacher's contract was not renewed after she became pregnant out of wedlock. The court held that the ministerial exception doctrine requires dismissal of plaintiff's claims.

HHS To Allow Grantees To Refuse To Serve LGBT Clients

On Nov. 1, the U.S. Department of Health and Human Services announced actions that effectively allow agencies receiving HHS grants, including foster care and adoption agencies, to refuse to serve gay, lesbian and transgender individuals and families on religious grounds. First, HHS issued a Notice of Non-Enforcement of  rules adopted in 2016 that prohibit such discrimination. The non-enforcement decision was based on "significant concerns about compliance with the Regulatory Flexibility Act" in the promulgation of the 2016 rules.  HHS then issued a Notice of Proposed Rulemaking that would repromulgate the rules with narrower anti-discrimination protections. The proposed new rules would replace this section:

(c) It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.

(d) In accordance with the Supreme Court decisions in United States v. Windsor and in Obergefell v. Hodges, all recipients must treat as valid the marriages of same-sex couples. This does not apply to registered domestic partnerships, civil unions or similar formal relationships recognized under state law as something other than a marriage.

The new rules will instead provide:

(c) It is a public policy requirement of HHS that no person otherwise eligible will be excluded from participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services, to the extent doing so is prohibited by federal statute.

(d) HHS will follow all applicable Supreme Court decisions in administering its award programs.

In its announcement, HHS said in part:

The proposed rule would better align its grants regulations with federal statutes, eliminating regulatory burden, including burden on the free exercise of religion.

New York Times reports on the HHS action.

Bankruptcy Court Upholds Order To Sell Church Property

In In re: Sindesmos Hellinikes-Kinotitos of Chicago, (ED IL Bkrpt., Oct. 25, 2019), an Illinois federal bankruptcy court refused to vacate a prior order for the sale of the Greek Orthodox Holy Trinity Church in Chicago which was $8.2 million in debt to a bank lender. A group of parishioners sought to have the order vacated, claiming that the local church lacked authority to sell the property because the sale had not been approved by a Parish Assembly vote.  The court said in part:

Here, the parties do not contest that the Debtor is subject to the hierarchy of the Greek Orthodox Diocese of America and is so bound by its Uniform Parish Regulations..... Those Uniform Regulations provide that a

Parish may purchase real and person property, or sell, mortgage, or otherwise encumber its real property . . . upon approval of two-thirds (2/3) of the parishioners in good standing present at a Parish Assembly duly called (with at least ten (10) days prior written notice) for that purpose, provided that approval from the respective Hierarch is received . . . .

The crux of the Concerned Parishioners' argument is, however, that while such approval may have been obtained, as the approval of two-thirds of the parishioners was not, the sale is unauthorized.... According to the Opposing Parties, such procedure is one of convenience for the Hierarch but is not an actual vested right of the parishioners....

[F]or the court to conclude that the church intended to vest in its parishioners a property right sufficient to require service under Bankruptcy Rule 6004(c) and sufficient to create a pecuniary interest in the outcome of the sale, the court must attempt to answer fundamental questions of the church's treatment of its parishioners.

Interpreting that ambiguity and resolving those fundamental questions would require this court to probe into the allocation of power within the church, to attempt to posit the church's intent and polity regarding the rights of its parishioners. That, quite simply, cannot happen.

Organization Lacks Standing To Claim Sexual Orientation Discrimination By Christian Business Owners

In Lexington-Fayette Urban County Human Rights Commission v. Hands On Originals, (KY Sup. Ct., Oct. 31, 2019), The Kentucky Supreme Court dismissed on standing grounds a suit against a small business whose Christian owners refused on religious grounds to print T-shirts for a Pride Festival. The court held that because the discrimination complaint was filed only by a gay-rights organization, plaintiff lacks statutory standing:

[B]ecause an “individual” did not file the claim, but rather an organization did, we would have to determine whether the organization is a member of the protected class, which we find impossible to ascertain. No end user may have been denied the service who is a member of the protected class, or perhaps one was. If so, then the determination would have to follow whether the reason for denial of service constitutes discrimination under the ordinance, and then whether the local government was attempting to compel expression, had infringed on religious liberty, or had failed to carry its burden under KRS 446.350. But without an individual, as required by Section 2-32(2)(a), this analysis cannot be conducted.

Justice Buckingham filed a concurring opinion, arguing that the Human Rights Commission had unconstitutionally attempted to compel the business to express ideas with which it disagreed. [Thanks to Tom Rutledge for the lead.]

"Prosperity Gospel" Minister Joins White House Staff

New York Times reported last week that Florida-based evangelist Paula White will join the White House staff in an official capacity. She will work in the Office of Public Liaison as an adviser to the administration's Faith and Opportunity Initiative. White has been part of President Trump's informal religious advisers.  As a proponent of the "prosperity gospel", White is controversial among some Evangelicals.

NOTE TO READERS: RELIGION CLAUSE WILL BE ON BREAK FROM OCT. 21 TO NOV. 3

Religion Clause will be on break from Oct. 21 to Nov. 3.  Look for regular postings to resume on November 4.

Recent Articles of Interest

From SSRN:

• Shaakirrah Sanders, Religious Healing Exemptions and the Jurisprudential Gap Between Substantive Due Process and Free Exercise Rights, (8 U.C. Irvine L. Rev. 633 (2018)).
• Farnush Ghadery, 'Sticking to Their Guns': The United Nations' Failure to See the Potential of Islamic Feminism for the Promotion of Women's Rights in Afghanistan, (October 8, 2019).
• Perry Dane, 'Avinu, Malkeinu, Kin(g) of All the Earth': A Yom Kippur D’var Torah, (October 4, 2019).
• Dimitry Kochenov & Uladzislau Belavusau, Same-Sex Spouses in the EU after Coman: More Free Movement, But What about Marriage?, (EUI Working Paper (Florence) No. 2019/3).
• Deepa Das Acevedo, Just Hindus, (Law & Social Inquiry (2020, Forthcoming)).
• Joshua Jones, Title IX's Substantive Equity Mandate for Transgender Persons in American Law Schools: A Call to Disaggregate SOGI Data, (Forthcoming, Spring 2020, Vol. 44.3 NYU Review of Law and Social Change).
• Andrew T. Hayashi, The Law and Economics of Animus, (Virginia Public Law and Legal Theory Research Paper No. 2019-57).

Court In India Reduces Power of Ecclesiastical Courts In Goa

Hindustan Times of Oct. 19 reports:

After hearing two separate petitions filed by persons whose marriages were annulled by a so-called church court, the Bombay high court at Goa has struck down Article 19 of a Portuguese edict that gave legal sanctity to rulings of ecclesiastical tribunals in the former Portuguese colony

The high court said the article was “unconstitutional, illegal, null and void and ultra vires Articles 14 and 21 of the Constitution of India.”

The decree in question, Portuguese Decree 35461, has its origin in a 1940 agreement between the government of Portugal and the Holy See.... The decree went into effect in Goa in 1946 and governs marriages and divorces of Catholic couples. But in doing so, it virtually reduced the role of civil courts to administrative bodies, merely tasked with ensuring the execution of orders passed under the decree....

Interpreting the judgement, [a former law commissioner] said that now, couples who seek annulment of a church marriage can approach the ecclesiastical tribunals, but will also have the option of approaching the civil courts to dissolve the civil aspect of marriage....

Hong Kong Court: No Protection For Same-Sex Marriage or Civil Unions

In MK v. Government of HKSAR, (HKCFI, Oct. 18, 2019), the Hong Kong Court of First Instance ruled that Article 37 of Hong Kong's Basic Law  providing protection for the freedom of marriage applies only to heterosexual marriage.  It also held that the government does not have a duty to provide a legal framework, such as civil unions, as an alternative to protect same-sex couples. JURIST reports on the decision.