Amicus Briefs In Supreme Court's Abortion Cases Now Available

Dozens of amicus briefs have now been filed in this Term's Supreme Court cases on abortion rights. Links to all of the briefs are available at SCOTUSblog's case page on June Medical Services LLC v. Gee.

AP: Catholic Church's Release of Sex Offenders' Names Is Incomplete

In a long investigative report, AP yesterday said that Church reporting of alleged sex abusers is incomplete:

An AP analysis found more than 900 clergy members accused of child sexual abuse who were missing from lists released by the dioceses and religious orders where they served....

More than a hundred of the former clergy members not listed by dioceses or religious orders had been charged with sexual crimes, including rape, solicitation and receiving or viewing child pornography.

On top of that, the AP found another nearly 400 priests and clergy members who were accused of abuse while serving in dioceses that have not yet released any names....

Some dioceses have excluded entire classes of clergy members from their lists — priests in religious orders, deceased priests who had only one allegation against them, priests ordained in foreign countries and, sometimes, deacons or seminarians ousted before they were ordained....

Dioceses varied widely in what they considered a credible accusation.....

The largest exceptions were made for the nearly 400 priests in religious orders who, while they serve in diocesan schools and parishes, don't report to the bishops.

Suit Challenges Attempt To Force Sex Offenders Out of Church's Program

The Chicago Tribune reports on a Dec. 30 lawsuit arguing that  the city of Aurora and Kane County (Illinois) are violating the rights of 18 registered sex offenders staying at Wayside Cross Ministries:

The city of Aurora has contended for months that new mapping software showed the men, registered child sex offenders participating in a rehabilitation program at Wayside Cross Ministries, live too close to McCarty Park on Aurora’s near East Side. The city deems it a playground, which would mean the men are in violation of a state law requiring them to live more than 500 feet from schools, playgrounds, daycare centers and other child-focused locations....

The men argue in the lawsuit that Aurora and the Kane County state’s attorney are “misinterpreting and misapplying the residency law." The suit argues the way they are applying the law “to force plaintiffs out of Wayside Cross substantially burdens plaintiffs’ exercise of religion and is not the least restrictive means of furthering a compelling government interest," and amounts to a violation of the Illinois Religious Freedom Restoration Act,,,,

The most recent lawsuit, filed in Kane County circuit court, argues that instead of measuring the required 500-foot-distance from the edge of the park, it should be measured from the edge of an area deemed a playground, such as the park’s fountain or two rocking horses installed in the summer. Both of those features are more than 500 feet from Wayside’s property line, according to the lawsuit.

O Centro Sues Over Failure To Process Visa Applications

AP reports on a lawsuit filed in a New Mexico federal district court by O Centro Espirita Beneficente União do Vegetal alleging religious discrimination by the U.S. Citizenship and Immigration Services which has failed to process the visa applications for one of its congregational leaders and his family:

The lawsuit comes after José Carlos Garcia, a Brazilian man who has led the church’s Florida congregation since 2013, applied for visas that would allow him and his family to continue living in the United States while their immigration cases are pending

But the federal agencies responsible for processing their applications have left the family in legal limbo. Some applications have been pending for two years, according to the suit.

This has prevented Garcia from traveling to religious meetings outside the United States, infringing on his religious freedom, the lawsuit said.

In  O Centro Espirita Beneficente União do Vegetal in the U.S. v. Wolf, (D NM, Dec. 31, 2019), a New Mexico federal district judge refused to issue a preliminary injunction, but ordered the government to file a response by Jan. 10. (See prior related posting,)

Sex Abuse Suit Transferred to State Supreme Court

In Doe v. Marianist Province of the United States, (MO App., Dec. 31, 2019), a Missouri state appellate court said it would affirm the dismissal of portions of a lawsuit brought against the Marianist Province and a Catholic preparatory high school by a former student. However, according to the court, "due to the general interest and importance of the issues on appeal, we transfer the case to the Supreme Court of Missouri."  In the suit, plaintiff alleged abuse by a Marianist Brother who served as a guidance counselor at the school.  Judge Hoff, writing for herself and Judge Sullivan, said in part:

[B]ecause Appellant’s negligent supervision and negligent failure to supervise children claims would require interpretation of religion doctrine, policy, and administration amounting to an excessive entanglement between church and state, the trial court did not err in granting summary judgment in favor of Respondents....

... [T]he record contains no competent evidence that Respondents had knowledge of Bro. Woulfe’s history of abuse in 1971 when Appellant suffered his abuse. As a result, Appellant failed to establish the existence of a genuine issue related to Respondents’ knowledge. The trial court did not err in granting summary judgment in favor of Respondents on Appellant’s claim of intentional failure to supervise clergy.

Judge Quigless dissenting in part said:

While I concur with the majority in affirming the grant of summary judgment in favor of the respondents regarding the appellant’s negligence claims, I believe the record is sufficient to defeat the respondents’ motion for summary judgment on the claim of intentional failure to supervise clergy because a genuine issue exists as to the material fact of the respondents’ knowledge.

Happy New Year 2020 !

Dear Religion Clause Readers:

Happy New Year 2020! I hope you continue to find Religion Clause an important resource for news on religious liberty and church-state developments. I continue to strive for objectivity in my posts and to provide links to an abundance of primary source material underlying each post. I am pleased that my regular readers span the political and religious spectrum and include a large number of law school faculty, journalists, clergy, governmental agency personnel, students and others working professionally dealing with church-state relations and religious liberty concerns in the U.S. and around the world.

As we usher in 2020, it has become conventional wisdom that many of the most highly charged issues that divide our country politically also often divide it along religious lines.  Whether the issue is abortion, transgender rights, immigration, same-sex marriage, climate change, or campus free speech, activists have increasingly defined the debate in religious terms. As I watch this, I recall the words of Chief Justice Burger nearly 50 years ago in Lemon v. Kurtzman:

Ordinarily political debate and division, however vigorous or even partisan, are normal and healthy manifestations of our democratic system of government, but political division along religious lines was one of the principal evils against which the First Amendment was intended to protect.

2019 has also been a year in which religious intolerance has grown.  Increasing anti-Semitic incidents in the United States and around the world remind us that this age-old manifestation of hate has not disappeared. Anti-Muslim attitudes and actions continue largely unabated in numerous countries, while minority Christian communities elsewhere are under siege.  2020 promises to be an important year for confronting religious liberty and church-state concerns.  Religion Clause will continue to cover all the developments.

Thanks again to all of you who are loyal readers-- both those who have followed Religion Clause for years and those of you who have only recently discovered the blog.  A special thanks to readers who have quickly sent me leads on recent developments, and to those who have alerted me to mistakes. All of you have made Religion Clause the most recognized and reliable source for keeping informed on the intersection of religion with law and politics. I encourage you to recommend Religion Clause to colleagues, students and friends who might find it of interest.

I also remind you that the Religion Clause sidebar contains links to a wealth of resources.  Please e-mail me if you discover broken links or if there are other links that I should consider adding.

Best wishes for 2020!  Feel free to contact me by e-mail (religionclause@gmail.com) in response to this post or throughout the year with comments or suggestions.

Howard Friedman

Hate Crime Charges Filed In Hanukkah Stabbing Spree

The U.S. Attorney's Office for the Southern District of New York announced yesterday that it has filed federal hate crime charges in the Hanukkah mass stabbing attack at a Rabbi's home in Monsey, NY last week.  The criminal complaint (full text) charges Grafton Thomas with 5 counts of obstruction of the free exercise of religious beliefs involving an attempt to kill and use of a dangerous weapon. The affidavit supporting the complaint says that a handwritten journal containing anti-Semitic views was recovered from the suspect's residence. Washington Post reports on these developments.

Denial of Name Change Did Not Burden Inmate's Free Exercise

In In re the Application of: Hollis John Larson for a Change of Name, (MN App, Dec. 30,2019), a Minnesota state appellate court upheld a trial court's denial of a name change petition from an inmate who has been indeterminately civilly committed to the Minnesota Sex Offender Program as a sexually dangerous person. Petitioner sought to change his name to "Better Off Dead."  He claimed his religious belief involving Hinduism, Taoism, Buddhism, and Agnosticism motivates his petition. He contended that he believes to achieve reconciliation with the divine he must escape the cycle of birth, life, death, and rebirth by being and remaining dead. In rejecting petitioner's free exercise claim, the appeals court said said that the trial court had concluded that petitioner's asserted religious belief was not sincerely held and "state regulation cannot burden an insincere belief." Minneapolis Star Tribune reports on the decision. The court also rejected petitioner's free speech claim.

Suit Challenges Postal Service's Rules On Content of Customized Stamps

Suit was filed earlier this month in a Texas federal district court challenging the constitutionality of a portion of the U.S. Postal Service's regulation (39 CFR §501.21) that limits the depictions that may be placed on customized postage stamps produced by private providers authorized by USPS. The regulation limits, among other things, "Any depiction of political, religious, violent or sexual content".  The complaint, (full text) in Fletcher v. U.S. Postal Service, (ED TX, filed 12/19/2019), contends that plaintiff's free speech and free exercise rights (including her rights under RFRA) are violated because she will be unable to create personalized postage stamps that allow her to share her love of Christmas and other holidays through PhotoStamps.com's website.  According to the complaint:

16. The website also requires customers to agree that Stamps.com, in its sole discretion, may determine if designs meet the eligibility criteria and may also reject orders without explanations. If customers submit a design Stamps.com determines is in violation of their requirements, those customers may be charged a processing fee of $10 per image.

17. If customers publicly complain about the rejection of a stamp design, Stamps.com claims it will be harmed and may pursue legal action. The website states, “[if] you intentionally publicize such violation, you acknowledge that Stamps.com will suffer substantial damage to its reputation and goodwill and that you can be liable for causing such substantial damage.”

The complaint goes on to allege that:

... USPS chose to promulgate a regulation allowing third-party providers, such as PhotoStamps, to discriminate against speech. Regulation 39 C.F.R. § 501.7(c)(1) requires the provider—here, PhotoStamps—to ensure that what it prints is “[c]onsistent with the Postal Service’s intent to maintain neutrality on religious, social, political, legal, moral, or other public issues.”

First Liberty Institute issued a press release announcing the filing of the lawsuit.

Recent Articles of Interest

From SSRN:

• Jeremy Rovinsky, Don’t Have a Cow, Flanders: Guidance for the European Court of Justice as it Considers the Flemish Parliament’s Ban on Ritual Slaughter, (University of Detroit Mercy Law Review, Vol. 90, No. 180, Forthcoming).
• Richard Adams, Conscience and Coercion: Justice and the Defence Act, (Adelaide Law Review, 40:2, pp. 427 - 446, 2019).
• David John Harvey, Dangerous Speech - Some Legislative Proposals, (April 20, 2019).
• Aminu Yakubu, Haruna Yawale, Abdulbar Yakubui Isa & Muhammad Salihu Abubakar, Legal and Illegal Earning in Islam: A Literature Review (April 25, 2019).

State Department Designates Religious Freedom Violators

In a Dec. 20 press release, the U.S. State Department announced it designations for this year of countries which are the worst violators of religious freedom:

On December 18, 2019, the Department of State re-designated Burma, China, Eritrea, Iran, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan as Countries of Particular Concern under the International Religious Freedom Act of 1998 for having engaged in or tolerated “systematic, ongoing, [and] egregious violations of religious freedom.”  The Department renewed the placement of Comoros, Russia, and Uzbekistan on a Special Watch List (SWL) for governments that have engaged in or tolerated “severe violations of religious freedom,” and added Cuba, Nicaragua, Nigeria, and Sudan to this list.  Sudan was moved to the SWL due to significant steps taken by the civilian-led transitional government to address the previous regime’s “systematic, ongoing, and egregious violations of religious freedom.”  Finally, we designated al-Nusra Front, al-Qa’ida in the Arabian Peninsula, al-Qa’ida, al-Shabab, Boko Haram, the Houthis, ISIS, ISIS-Khorasan, and the Taliban as Entities of Particular Concern.

The U.S. Commission on International Religious Freedom issued a press release welcoming the action and reiterating its recommendations.

Montenegro Passes Controversial Religion Law

Reuters reports that early today the Parliament of Montenegro passed a controversial law on religious communities:

Under the law, religious communities in the tiny Adriatic state would need to prove property ownership from before 1918, when predominantly Orthodox Christian Montenegro joined the Kingdom of Serbs, Croats and Slovenes, the predecessor of the now-defunct Yugoslavia.

The pro-Serb Democratic Front (DF) and other critics of the legislation say it is an attempt to promote the small Montenegrin Orthodox Church, which is not recognised by other major churches, at the expense of the Serbian Orthodox Church, the dominant church in the country of 620,000 people.

Suit Over Unification Church Leadership Is Dismissed

In Hyung Jin "Sean" Moon v. Hak Ja Han Moon, (SD NY, Dec. 19, 2019), a New York federal district court applied the ecclesiastical abstention doctrine to dismiss a suit over who is the rightful leader of the Unification Church. The leadership struggle was between the wife and the son of Unification Church founder Rev. Sun Myung Moon. Summarizing its holding, the court said:

[N]otwithstanding plaintiff's efforts to cast this proceeding as a "classic corporate dispute" resolvable by reference to neutral principles of law,... this matter is, at bottom, the latest chapter in a protracted controversy over who should replace the late Rev. Moon as leader of the Unification Church. Because this Court may not, consistent with the First Amendment, intervene in that dispute, plaintiff's complaint must be dismissed in its entirety for lack of subject matter jurisdiction.

Suit Filed Against Synagogue Picketers

A lawsuit was filed last week in a Michigan federal district court against protesters who, every Saturday for the last 16 years, have picketed an Ann Arbor synagogue with anti-Israel and anti-Jewish signs. The 85-page complaint (full text) in Gerber v. Herskovitz, (ED MI, filed 12/19/2019) contends in part:

The conduct of the protesters is infringing on the 1st Amendment right of the congregants to exercise their freedom of religion without being harassed and insulted by the protesters. The City, by its failure to enforce its own Code provisions to curtail the protesters' conduct, is aiding and abetting the protesters harassment of the congregants, thereby making the protesters state actors under 42 U.S.C. §1983 and the protesters and the City co-conspirators under §§ 42 U.S.C. 1983 and 1985(3)....

The 1st Amendment right of free speech does not entitle a speaker to use that right repeatedly as a bludgeon, for weeks and years at a time, in the same location, rather than as a means of legitimate communication in an effort to convey information and persuade others to the speaker's point of view.

M Live reports on the lawsuit. [Thanks to Tom Rutledge for the lead.]

Top 10 Religious Liberty and Church State Developments of 2019

Each year in December, I attempt to pick the most important church-state and religious liberty developments of the past year-- including developments internationally in the mix.  My choices are based on the importance of the pick to law or policy, regardless of whether the development has garnered significant media attention. This year has been a particularly active one, and 2020 promises to be even more eventful.  The selection of top stories obviously involves a good deal of subjective judgment, and I welcome e-mail comment from those who disagree with my choices.  So here are my Top Ten picks as another year comes to an end:

1. The ongoing battle over abortion rights, including the Supreme Court's action on Indiana's abortion law in Box v. Planned Parenthood, and Justice Thomas opinion focusing on abortion as eugenics; Supreme Court's granting of certiorari on Louisiana's abortion law; increasingly restrictive enactments by various states; and challenges to new HHS health care conscience rules.
   
2. Supreme Court's decision in American Legion v. American Humanist Society clarifying when religious-themed monuments on public property may remain.
   
3. Controversies over transgender rights, including Supreme Court's grant of review in cases on Title VII protections for LGBT employees, and DOD's amended policy on transgender service in the military.
   
4. Growth of anti-Semitism and governmental efforts to combat it, including controversial interpretation of Title VI.
   
5. Litigation and rule-making over whether adoption and foster care agencies receiving government funding can refuse to place children with same-sex couples.
   
6. Elimination of religious exemptions to vaccination requirements in wake of measles outbreaks, especially in New York.
   
7.  Supreme Court weighs in on inmates' access to chaplains during execution.
   
8. Extensions of statutes of limitations lead to flood of clergy abuse cases.
   
9. 7th Circuit upholds tax code's parsonage allowance.
   
10. India's courts and Parliament make major rulings that infringe on religious autonomy: Hindu Marriage Act covers transgender marriage; Parliament outlaws triple talaq; court bans animal sacrifice; power of ecclesiastical courts reduced; disputed holy site awarded to Hindus.

For other opinions on 2019's top stories, see the lists from Don Byrd at BJC, and from from the Religion News Association.

President Sends Christmas Greetings

The White House today posted President Trump's Message on Christmas. (full text).  He said in part:

While the challenges that face our country are great, the bonds that unite us as Americans are much stronger.  Together, we must strive to foster a culture of deeper understanding and respect—traits that exemplify the teachings of Christ.

The White House also posted the transcript of the President's  Video Teleconference With Members of the Military, extending Christmas and New Years greetings to them.

Cuomo Vetoes Expansion of Federal Judges Who Can Officiate At Weddings

On Dec. 20, that New York Gov. Andrew Cuomo vetoed S6330 which would have expanded the federal judges who can officiate at marriage ceremonies in New York.  Currently only federal judges sitting in New York districts or on the 2nd Circuit can officiate. The vetoed bill would have expanded this to all federal judges. According to yesterday's New York Times, Cuomo said in his veto message:

I cannot in good conscience support legislation that would authorize such actions by federal judges who are appointed by this federal administration. President Trump does not embody who we are as New Yorkers.

President Trump Issues Hanukkah Greetings

On Sunday, President Trump issued a Hanukkah message (full text) sending greetings from himself and Melania.  He said in part:

Today, the relationship between the United States and Israel, one of our most cherished allies and friends, is stronger than ever.  We will continue to stand with the Jewish people in defending the God-given right to worship freely and openly.

New HHS Obamacare Rule Requires Separate Bill For Abortion Services

The Department of Health and Human Services last week issued a group of rules (full text) on oversight of state Obamacare exchanges.  One portion of the new rules changes the billing requirements for health insurance policies that cover abortion services. The Affordable Care Act requires a separate payment by the policyholder for the amount of the premium that covers abortions in order to avoid public funds being used to pay for abortions.  The new rules sharpen that requirement.  As explained in the HHS Fact Sheet on the new rules, health plan issuers will now be required to:

(1) send an entirely separate monthly bill to the policy holder for only the portion of premium attributable to coverage of certain abortion services, and (2) instruct the policy holder to pay the portion of their premium attributable to coverage of certain abortion services in a separate transaction....  QHP issuers sending paper bills will be permitted to send the separate paper bill in the same mailing as the separate bill for the rest of the enrollee’s premium. QHP issuers sending bills electronically will be required to send the separate bill in a separate email or electronic communication.... However, if the policy holder fails to pay the separate bill in a separate transaction as instructed by the issuer, the issuer may not terminate the policy holder’s coverage on this basis, provided the amount due is otherwise paid.

Appellate Court Narrows Ruling Allowing Clearing Of Homeless Encampments

In State of Ohio ex rel. New Prospect Baptist Church v, Rulehlman (OH App., Dec. 20, 2019), an Ohio state appellate court, narrowed an injunction previously issued by a trial court.  The city of Cincinnati had allowed homeless encampments to be created.  In a suit against the city, it was alleged that these presented a hazard to health and safety and constituted a nuisance. Agreeing with that contention, the trial court held that city and county law enforcement authorities could to clear homeless encampments throughout the city and county.  New Prospect Baptist Church, which was not a party to the trial court action, sued to prevent enforcement of the injunction against its use of its 4-acre site in the city as a refuge for the homeless. The appellate court issued a writ of prohibition requiring the trial court to narrow its injunction. The appeals court said in part:

[The trial judge's] permanent injunction is unauthorized by law to the extent that respondent seeks to enjoin actions by private nonparties, not found to be aiding or abetting a named defendant, within the city limits of Cincinnati, and by any entity outside the city limits of Cincinnati. Respondent’s orders imposing additional health and safety conditions on entities like New Prospect are similarly unauthorized by law.

City Beat, reports on the decision.