Tuesday, November 26, 2019

Court Rejects Parents' Objections To Vaccination Exemption Form

In W.B. v. Crossroads Academy- Central Street, (WD MO, Nov. 22, 2019), a Missouri federal district court rejected constitutional challenges by parents to the form that Missouri requires to be completed in order to claim a religious exemption for a school child from vaccination requirements. The form contains language strongly encouraging parents to obtain vaccinations for their children. In rejecting the parents' challenge, the court said in part:
Although the Bakers say they have religious scruples against  vaccination, they are not entitled to insist on governmental silence rather than advocacy....
The parental signature at the bottom of the religious exemption form serves to verify the required parental inserts of the child’s name, the types of vaccination objected to, and the grounds for the exemption, simply asserted as “religious.” Filling in, signing and submitting the form in no way comments on or endorses the State’s message....
The nearest legal problem area may be in the contention that contraception opponents should not be required to be “complicit” in the procedure by filing exemption forms. See, Wheaton College v. Burwell, 573 U.S. 958 (2014). In this situation, however, the filing of forms does not advance vaccination use but simply results in an exemption.
Kansas News Service reports on the decision.

USCIRF Reauthorization Mired In Controversy

Under current law, the U.S. Commission on International Religious Freedom terminated on Sept. 19, 2019. Nevertheless, USCIRF continues to operate, presumably with the assumption that Congress will enact reauthorizing legislation. A bipartisan reauthorization bill (S. 2503) was introduced on Sept. 18, one day before the current termination date.  Despite its bipartisan backing, the bill, which has not moved forward, has proven to be so controversial that USCIRF Commissioner Kristina Arriaga resigned in protest over it.

Here is some of AP's account (Nov. 21) of the controversy:
The bill also would ask the commission to review “the abuse of religion to justify human rights violations” — a responsibility not defined in more detail — and restrict commissioners from using their federal title when they speak as private citizens. Additionally, commissioners would have to report to Congress on international travel paid for by sources outside their families or the government.
In a capital often dominated by partisan polarization, those proposed changes created a rare division: senators in both parties seeking increased oversight, and commissioners in both parties balking....
[S]ome of the changes Arriaga opposes were aimed at ensuring commissioners — who serve as unpaid volunteers — don’t misrepresent the religious freedom body while speaking as private individuals. One commissioner, Trump evangelical adviser Johnnie Moore, has met twice in the past year with Saudi Crown Prince Mohammed bin Salman, whose kingdom’s long-standing restraint of religious freedom has drawn criticism from the commission.
Christianity Today (Nov. 25) says that there is tension between USCIRF Commissioners and USCIRF staff.  USCIRF played an active role in freeing American pastor Andrew Brunson from imprisonment in Turkey. But senior staff had argued that because USCIRF was limited in its role to international religious freedom, it was not permitted to advocate for Brunson, an American.  CT went on to describe its understanding of the issues raised by the proposed reauthorization legislation:
Among the bill’s proposed reforms, the terms of all commissioners would expire at the same time, yielding 100 percent turnover every time new commissioners were appointed; commissioners would be prohibited from identifying themselves with USCIRF at public speaking engagements they performed as private citizens; commissioners would be required to make annual reports to Congress on any international travel funded by someone other than the commissioner, a relative, or the US government; and commissioners would be required to keep records of all official communications.
Another proposed change [is] ... expansion of USCIRF’s mission to include monitoring the “abuse of religion to justify human rights violations.” That language, Arriaga said, could empower future USCIRF chairmen to “criticize conservative Christian congregations that will not marry same-sex couples,” target Jews for practicing circumcision (a practice some critics have called child abuse), or monitor religious groups that don’t ordain women.
Former USCIRF commissioner Richard Land told CT the proposed changes would “neuter” the commission and limit and pool of religious liberty experts willing to serve.

Church Sues Under RLUIPA To Operate Homeless Shelter

The Shawnee Mission Unitarian Universalist Church has filed a RLUIPA lawsuit against the city of Lenexa, Kansas which has denied the church zoning approval to operate an overnight homeless shelter for the winter months.  According to KCUR News, the church, in cooperation with the nonprofit Project 1020, wants to use the former elementary school building in which it is located as a shelter for up to 40 people. The building now is zoned residential single family, though it borders commercial and office properties. Lexana has no areas zoned for homeless shelters.

Energy Secy. Perry Compares Trump To Biblical Kings

The Hill reports on the release last weekend by Fox and Friends of portions of an interview with retiring Energy Secretary Rick Perry.  In the interview, Perry says that Trump is"the Chosen One" who was "sent by God to do great things." Rick Perry told the Fox interviewer:
God's used imperfect people all through history. King David wasn't perfect. Saul wasn't perfect. Solomon wasn't perfect....  And I actually gave the president a little one-pager on those Old Testament kings about a month ago and I shared it with him. I said, 'Mr. President, I know there are people that say you said you were the chosen one and I said, 'You were.’
I said, 'If you're a believing Christian, you understand God's plan for the people who rule and judge over us on this planet in our government.’

Monday, November 25, 2019

6th Circuit Rules In Firefighter's Claim of Retaliation for Religious Speech

In Hudson v. City of Highland Park, Michigan, (6th Cir., Nov. 22, 2019), the U.S. 6th Circuit Court of Appeals in part reversed a district court's dismissal of claims by a firefighter that he was dismissed in retaliation for his religious views.  The court summarized the facts:
Hudson worked for the Highland Park Fire Department from 2002 to 2015. Over time, he developed a reputation for two things: being an effective firefighter and being outspoken about his Christian faith. According to Hudson, the other firefighters had reputations too—for watching pornography in communal spaces and engaging in extra-marital affairs at the fire station. All of this created tension. He criticized their behavior, and they responded with disrespectful comments about his religious practices and sexual orientation. The back and forth went on for five years.
Hudson was fired after he claimed extra hours on his time sheet and reported he had worked the same shift for two different employers. The 6th Circuit held, however, that Hudson had shown enough to avoid dismissal on the pleadings of his claim that the Chief had fired him because of his speech. The court however affirmed the dismissal of his Title VII religious discrimination claim, saying in part:
Employees are free to speak out about misconduct in the workplace without subjecting themselves to discharge for rocking the boat.... Employees are no less free to root legitimate criticisms about the workplace in their faith than in any other aspects of their worldview. For many people of faith, their religion is not an abstraction. It has consequences for how they behave and may require them to be witnesses and examples for their faith. That reality does not permit differential treatment of them because they criticize behavior on moral grounds stemming from religious convictions as opposed to moral grounds stemming from secular convictions. “Let firemen be firemen” is not a cognizable defense to Title VII claims based on gender discrimination, race discrimination, or faith-based discrimination.
Even so, Hudson’s disparate treatment claim fails.... He cannot show that the city’s justification for his discharge amounted to a pretextual basis for discriminating against him because of his faith. The fire department put forth a legitimate, non-discriminatory reason for treating Hudson differently. He falsified his time-sheets while other firefighters did not.
Judge Kethledge, dissenting in part, would have affirmed the dismissal of Hudson's claim that he was fired in retaliation for his speech. Judge Stranch dissented in part, contending that Hudson should have been allowed to move ahead on his hostile work environment claim which the majority held should be dismissed.

Church of England Issues New Document On Christian- Jewish Relations

The Church of England last week released a new study titled God’s Unfailing Word-- Theological and Practical Perspectives on Christian–Jewish Relations. (full text). The Church headlined this summary in its release on the new document:
Christian theology played a part in the stereotyping and persecution of Jewish people which ultimately led to the Holocaust, a new reflection on Christian-Jewish relations issued by the Church of England acknowledges.
[Thanks to Scott Mange for the lead.] 

Recent Articles of Interest

From SSRN:

Saturday, November 23, 2019

Challenge To Chaplaincy Program Dropped After Changes Are Made

A Stipulation for Dismissal signed by both parties was filed earlier this week in  Freedom From Religion Foundation, Inc. v. Kaul, (WD WI, 11/20/2019). The suit, which was initially filed in state court and was apparently removed to federal court, challenged the constitutionality of a Chaplaincy Program for employees and their families created by the Wisconsin Department of Justice. Six chaplains from across the state were appointed initially-- all white males from Christian faiths. The program excluded secular mental health professionals.  According to a press release from FFRF, after a new state attorney general was elected, the chaplaincy program was dropped in favor of an "Employee Support Team". The goal is to create teams with training in counseling, police chaplaincy, and/or empathetic listening.

Supreme Court Grants Review In RFRA Damages Case

The U.S Supreme Court yesterday granted certiorari in Tanzin v. Tanvir. (Docket No.19-71, cert. granted 11/22/2019). In the case, a 3-judge panel of the 2nd Circuit Court of Appeals held that under the Religious Freedom Restoration Act, a plaintiff may sue federal officials in their individual capacities and may recover monetary damages from them. The holding comes in a lawsuit by three Muslims who claim that their names were placed on the "No Fly List" in retaliation for their refusal to serve as government informants. (See prior posting.) By a vote of 7-3, the 2nd Circuit denied en banc review. (See prior posting.) The SCOTUSblog case page has links to the fiilngs with the Supreme Court in the case.

Friday, November 22, 2019

Proselytizing Does Not Rise To Level of Intentional Infliction of Emotional Distress

In Trombetta v Kruse, (NY Civ. Ct., Nov. 19, 2019), a New York state trial court held that a proselytizing pamphlet and a subsequent e-mail did not amount to intentional infliction of emotional distress, nor was any injury proven. According to the court:
The pamphlet ... shows a cartoon depiction of a catholic who is sent into the "lake of fire" to "burn in hell" for practicing as a catholic, instead of following the version of Christianity promoted by the pamphlet which is evangelical Baptist. The tract urges the reader to reject Catholicism, or be barred from heaven....
... [D]efendant wrote plaintiff an email that included the following statements: ... My family does not believe and, if any of them were to die tomorrow, they would not go to heaven but to hell. I sent them tracts because I do not want them to go to hell. I want them to go to heaven. It is what I want for you too.
The court held in part:
The First Amendment to the United States Constitution prohibits the courts of this State from evaluating the religious beliefs of a church or individual....
While the court understands why the plaintiff found the tract and email disturbing, the court does not find that the conduct rose to the level of intentional infliction of emotional distress.
[Thanks to Volokh Conspiracy for the lead.]

Sex Abuse Victims Sue Claiming Unfair Settlements By Catholic Church

AP reports on a lawsuit filed by two African-American men who are cousins and who allege that as grade schoolers in a Mississippi Catholic school they were repeatedly abused by two Franciscan bothers:
Two impoverished Mississippi men who say they were sexually assaulted by Franciscan missionaries filed a federal lawsuit Thursday claiming that Catholic officials pressured them into signing settlements that paid them little money and required them to remain silent about the alleged abuse.
The lawsuit, filed in New York, claims the church officials drew up the agreements a year ago to prevent the men from telling their stories or going to court — a violation of a 2002 promise by American bishops to abandon the use of nondisclosure agreements, as part of an effort to end the cover-up of sexual abuse within the church.

Thursday, November 21, 2019

California Denied Preliminary Injunction In License Dispute Over Faith Based Teen Rescue Facility

In a Tentative Ruling (full text [scroll down]) in Leary v. Teen Rescue,(Shasta Cty. Calif. Super. Ct., Nov. 18, 2019), a California state trial court judge refused to enter a preliminary injunction that would shut down a residential facility for abused and neglected children.  The state claims that the facility should be regulated under state law as a "community care facility." The court agrees that the state has a reasonable probability of prevailing at trial on this claim, but says that there remains a significant religious free exercise question:
Defendants argue that they choose to address behavior through faith-based practices. Compliance with the Act and licensure would impact Defendants’ rights to free exercise of religion, in that 22 CCR § 80072 mandates that students be “free to attend religious services or activities of his/her choice and have visits from the spiritual advisor of his/her choice.” Further, “Attendance at religious services, in or outside of the facility, shall be on a completely voluntary basis” (“the spiritual exploration provisions”). Additionally, the Act provides students the right “[t]o be free from acts that seek to change his or her sexual orientation . . .” (“the SOCE prohibit”). The Act requires staff be trained in “[c]ultural competency and sensitivity in issues relating to the lesbian, gay, bisexual, and transgender communities” (“the LGBT cultural competency requirement”)....
The State advances the argument that requiring community care facilities to train staff in sensitivity to LGBTQ issues is neutral and does not infringe on or restrict religious practices. Defendants hold beliefs that are in direct opposition to this requirement. ....
There is no question that the protection of children – especially the particularly sensitive population of children Defendants seek out for their facility – is of great importance. However, the Court must also consider the foreseeable harm to the defendants in granting this injunction. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns (1976) 427 US 347, 373. The Court is concerned about the potential impact of the preliminary injunction on Plaintiff’s First Amendment freedoms, and the attendant presumption of irreparable injury to Defendants if this injunction were to be granted prior to a full determination of the facts of the case. 
Pacific Justice Institute issued a press release announcing the decision.

Court Sets Aside New Health Care Conscience Rules

In City and County of San Francisco v. Azar, (ND CA, Nov. 19, 2019), a California federal district court set aside rules adopted earlier this year by the Department of Health and Human Services to give additional protection to conscience rights of health care providers. The court said in part:
With the minor exceptions noted below, the new rule is purely an interpretive rule, not a legislative rule. An agency, of course, must interpret a statute under its care. But an interpretation, even if cast in the form of a regulation, is nothing more than that — an interpretation. The statute itself is what has the force of law, not the interpretation. No interpretation can add or subtract from the actual scope of the statute itself. If the agency misconstrues a statute, then the statute controls, not the interpretation.....
... Congress tried to strike a balance between two competing considerations. One consideration was recognition that, due to religious or ethical beliefs, some doctors, nurses, and hospitals, among others, wanted no part in the performing of abortions and sterilizations, among other medical procedures, and Congress wanted to protect them from discrimination for their refusal to perform them. The countervailing consideration was recognition of the need to preserve the effective delivery of health care to Americans, including to those seeking, for example, abortions and sterilizations. Every doctor or nurse, for example, who bowed out of a procedure for religious or ethical reasons became one more doctor or nurse whose shifts had to be covered by someone else, a burden on the healthcare system. Congress struck a balance between these two opposing considerations.
In reading the rule in question, the Court sees a persistent and pronounced redefinition of statutory terms that significantly expands the scope of protected conscientious objections. As laudable as that sounds, however, it would come at a cost — a burden on the effective delivery of health care to Americans in derogation of the actual balance struck by Congress.
California's Attorney General issued a press release commenting on the decision.  KPIX5 reports on the decision.

Argentinian Court Dismisses Transgender Man's Suit Against Catholic Church That Reused To Change His Name On Records

Church Militant reports on a lawsuit in Argentina by a transgender man who contends that Archbishop Mario Cargnello is required by Argentina's Gender Identity Law to change his name on Church baptismal and confirmation records.  When in 2018 the archbishop refused, activist Alba Rueda sued. A lower court dismissed the case saying it is a religious matter. On Nov. 14, an appeals court affirmed the dismissal. Rueda plans to take the case to the country's Supreme Court.

Suit Claiming Discriminatory Enforcement of Codes Against Orthodox Jews Moves Ahead

In Indig v. Village of Pomona, (SD NY, Nov. 18, 2019), a New York federal district court refused to dismiss equal protection and Fair Housing Act claims brought by plaintiffs who contend that the Village has enforced municipal codes in a discriminatory manner as part of a broader campaign against Orthodox Jews residing in the Village. Plaintiffs' free exercise and New York Civil rights Act claims, however, were dismissed.

Wedding Photographer Sues Over City's Public Accommodation Ordinance

Suit was filed in a Kentucky federal district court this week raising a pre-enforcement challenge to the application of Louisville, Kentucky's public accommodation ordinance to plaintiff's wedding photography business. The complaint (full text) in Chelsea Nelson Photography LLC v. Louisville/ Jefferson County Metro Government, (WD KY, filed 11/19/2019) says that plaintiff "only accepts requests for services which are consistent with her editorial, artistic, and religious judgment."  This precludes her from providing photography and social media services for same-sex weddings. The complaint alleges that enforcement of the ordinance against plaintiff would violate her free speech, free exercise and due process rights. ADF issued a press release announcing the filing of the lawsuit.

Advocacy Organization Releases "Religious Freedom Index" Survey

Becket yesterday released its first Religious Freedom Index which it describes in part as follows:
The Religious Freedom Index is designed to give a 30,000-foot view of changes in American attitudes on religious liberty by surveying a nationally representative sample of 1,000 American adults. Rather than focus on the most hot-button issues dominating the news-cycle, questions asked in the Index cover a wide spectrum of religious liberty protections under the First Amendment. The responses to these questions statistically group into six dimensions: 1) Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action. The composite Index score is the average score of these dimensions.
A Key Finding was:
In 2019, the majority of Americans accept and support religious freedom as a fundamental right as indicated by the Index score of 67. Although that fact may not come as a surprise, the Index clearly shows that Americans support a much broader array of religious freedom principles than current news cycles might suggest.

Wednesday, November 20, 2019

USCIRF Criticizes Action In India That Targets Bengali Muslims

Yesterday the U.S. Commission on International Religious Freedom issued a report titled The Religious Freedom Implications of the National Register of Citizens in India. The report says in part:
On August 31, 2019, the government of the northeastern Indian state of Assam released an updated National Register of Citizens (NRC), originally introduced in 1951 as part of India’s first census. The purpose of updating this list was to verify the citizenship of Assam residents and aid the government in identifying so-called “infiltrators” or “illegal immigrants.” India’s Union government supported this effort, and both national and state leaders from the ruling Bharatiya Janata Party (BJP) have pushed for the implementation of an NRC in other states..... Union Home Minister Amit Shah has expressed his desire to implement a nationwide NRC.
The final NRC list excluded 1.9 million Assam residents. Moreover, a number of domestic and international organizations have expressed concern that the NRC is a targeted mechanism to disenfranchise Assam’s Bengali Muslim community, implicitly establishing a religious requirement for citizenship and potentially rendering large numbers of Muslims stateless.

Hearing Officer Recommends License For Orthodox Jewish Women's Ambulance Service

A hearing officer's Nov. 11 report (full text) to New York City's Regional Emergency Medical Services Council recommends that an Orthodox Jewish women's organization known as Ezras Nashim be granted a certificate of need so it can operate an ambulance service directed to Orthodox Jewish women.  The Forward sets out some background:
Ezras Nashim, the female team which serves as emergency medical technicians in Boro Park, Brooklyn, was founded because Orthodox women in that community are often uncomfortable with male medics, even in emergencies. Their religious value of modesty prohibits men and women to touch unless they are husband and wife or close relatives.
Founded with little money and in the face of much community opposition in 2014, Ezras Nashim has operated by driving around in its members’ own cars. Now they’re trying to grow.... But the Orthodox-run male EMT service, Hatzolah, that opposed their founding is trying to block the ambulance application. The fight over the ambulance reflects a much broader communal debate about female modesty, and who gets to define it — men or women?
The Hearing Officer said in part:
A conservative approach would deny the request for an ambulance certificate on the strength of faster response times by all-male Hatzolah, or slower non-culturally aware FDNY and other responders. But that approach ignores the clear need that exists among the Orthodox Jewish women.
The application filed by Ezras Nashim, as well as video and transcripts of the public hearing on the application are available from REMSCO's website.

Tuesday, November 19, 2019

Suit Challenges New York's Ban On Reproductive Health Care Employment Discrimination

A lawsuit was filed last week in a New York federal district court by a pro-life pregnancy care center, a religious pro-life pregnancy care center membership organization and a Baptist church challenging the constitutionality of  New York's SB 660 which was signed into law earlier this month. the new law prohibits employers from taking action against an employee because of reproductive health care decisions by the employee or their dependents.  It bars employers from accessing information about employees' reproductive health decision making or requiring waivers by employees of their right to make such decisions. The complaint (full text) in CompassCare v. Cuomo, ND NY, filed 11/14/2019), alleges in part:
SB 660 is a transparent attempt to meddle in the affairs of religious and pro-life organizations—including but not limited to pregnancy care centers, churches, and schools—by forcing them to employ and associate with those persons who do not share or live by the organizations’ beliefs regarding abortion, contraception, and the impropriety of sexual relations outside the context of a marriage between a man and a woman.....
Taken together, these requirements compromise the very reason for being of these organizations, which is to promote life, oppose abortion, and teach and live a sexual ethic consistent with biblical principles.
The suit claims that the law violates their free speech and free exercise rights. CNA reports on the lawsuit.