Thursday, January 16, 2020

8th Circuit Hears Oral Arguments In Challenge To State Anti-BDS Law

Yesterday the U.S. 8th Circuit Court of Appeals heard oral arguments (audio of full oral arguments) in Arkansas Times LP vs. Waldrip.  In the case, an Arkansas federal district court dismissed a challenge to an Arkansas law which requires companies doing business with the state to certify that they are not boycotting Israel. (See prior posting.) Courthouse News Service reports on yesterday's oral arguments.

January 16 Is Religious Freedom Day

January 16 is Religious Freedom Day-- celebrating the anniversary of the passage in 1786 of the Virginia Statute of Religious Freedom. Each year since 1993 the President has issued a proclamation marking the day. Presumably this year's Proclamation will be posted by the White House today. Gov. Pete Ricketts of Nebraska also issued a Proclamation (full text) recognizing the day.

UPDATE: Here is President Trump's Proclamation on Religious Freedom Day, 2020.

Religious Group's Distribution of Vegan Food May Be Expressive Conduct

In Krishna Lunch of Southern California, Inc. v. Gordon, (9th Cir., Jan. 13, 2020), the U.S. 9th Circuit Court of Appeals held that Krishna Lunch had plausibly pleaded that its distribution of sanctified vegan and vegetarian food (prasada) is protected expressive conduct under the 1st Amendment. The court explained:
While distributing prasada, the organization plans on chanting the names of God and other devotional hymns and songs, speaking with interested students and others of the University of California, Los Angeles (“UCLA”) community, distributing religious literature, and displaying signs depicting reincarnation, animal protectionism, and other topics related to its followers’ beliefs. Drawing all reasonable inferences in favor of Krishna Lunch, we can infer that in these circumstances an onlooker would understand the distribution of food “to be communicative.”
However the court dismissed the organization's free exercise claim, finding that UCLA's four-times-per-year policy is neutral and generally applicable, and saying:
Krishna Lunch has not negated every conceivable basis that might support the policy.

Wednesday, January 15, 2020

New Report On State Laws Impacting Church-State Separation and Religious Equality

Last week, American Atheists released its report: 2019 State of the Secular StatesThe introduction to the 45-page report says in part:
In 2019 we saw a heightened awareness about the importance of the separation of religion and government, due in part to the increasing efforts to undermine this bedrock protection for religious freedom. At the federal level, the Trump Administration has stepped up its attempts to enshrine one particular religious viewpoint into the law by finalizing regulations promoting denial of health care by religious health care providers and by proposing rules which would prioritize religious beliefs over civil rights protections.
At the same time, Christian nationalists have continued to push forward Project Blitz, a well-organized and well-funded campaign designed to undermine religious equality around the country by using legislation at the state level to promote a distorted vision of religious freedom.... At www.BlitzWatch.orghttps://www.blitzwatch.org/, we provide tools to oppose this secretive campaign, and we closely track these negative bills....
In this second edition of the State of the Secular States report, we expand the number of evaluated law and policy measures. For every state, as well as the District of Columbia and Puerto Rico, we have assessed over 40 statewide law and policy measures, both positive and negative, pertaining to religious equality and the separation of religion and government.

Tennessee Passes Law Protecting Faith-Based Adoption/ Foster Care Agencies

Yesterday, the Tennessee General Assembly gave final passage to HB0836 (full text) which bars denial of licensing or funding for faith-based child placement agencies. The law protects agencies that refuse to participate in placing a child for foster care or adoption in violation of the agency's written religious or moral convictions or policies. According to AP, Gov. Bill Lee's Communications Director says that the governor will sign the bill.

No Action Under Color of Law In Refusing To Rent Meeting Space To Speaker

In Pasadena Republican Club v. Western Justice Center, (CD CA, Dec. 30, 2019), a California federal district court dismissed a suit claiming viewpoint discrimination and religious belief discrimination by the Western Justice Center (WJC) that was leasing the historic Maxwell House from the city of Pasedena.  WJC refused to rent space to the Republican Club for a speech by the president of the National Organization for Marriage because NOM's position on same-sex marriage, gay adoption, and transgender rights are antithetical to the values of WJC. In rejecting the Republican Club's civil rights claims, the court said in part:
The court will grant the Center’s and [its former executive director] Chirlin’s motion to dismiss because the complaint does not plausibly allege that the Center and Chirlin were acting under color of state law, as § 1983 requires, or that the City was involved in the alleged conspiracy, as § 1985(3) requires. Although a symbiotic relationship existed to some degree between the Center and the City, this case is distinguishable from Burton v. Wilmington Parking Authority, 365 U.S. 715 (1961), upon which the Club relies....

Space Force General Sworn In On Bible Blessed In Controversial Ceremony

As reported by NPR, yesterday, Air Force Gen. John "Jay" Raymond was sworn in as head of the recently created United States Space Force. The swearing-in was unusually controversial because Raymond was sworn in by Vice President Mike Pence using a Bible that was blessed for that purpose at a ceremony last Sunday at the Washington National Cathedral. (Washington Post). Maj. Gen. Steven A. Schaick, chief of chaplains for the U.S. Air Force, held the Bible as it was being blessed.

Yesterday, the Military Religious Freedom Foundation filed a strongly worded letter of complaint (full text) with Secretary of Defense Mark Esper, calling the National Cathedral ceremony "a horrid example of DoD-endorsed, fundamentalist Christian supremacy, ...exclusivity ... and triumphalism...." God and Country blog also has coverage of the controversy.

Attorney Has Standing To Challenge Judge's Prayer Practices

In Freedom From Religion Foundation, Inc. v. Mack, (SD TX, Jan. 13, 2010), a Texas federal district court held that an attorney has standing to challenge a Texas Justice of the Peace's practice of having his court sessions opened with a prayer. The attorney, who is non-religious, has declined clients in order to avoid the judge's courtroom. The court said in part:
Here, Attorney Roe has offered testimony that he practices law in Montgomery County, Texas, has appeared in Judge Mack’s courtroom on several occasions, and that he avoids the courtroom because of Judge Mack’s practice. The harm alleged does not occur only because he enters the courtroom, but also because he must avoid the courtroom since the practice continues. Therefore, there is a substantive risk that were he to accept a case in Judge Mack’s court, he will be exposed to the prayer practice. Hence, Attorney Roe has satisfied the standing requirements.
Judge Mack also challenges the FFRF’s standing. Because the Court has determined that Attorney Roe has standing, the FFRF has associational standing.

Court Upholds Removal of Mosque's Finance Director

In Islamic Center of Passaic, Inc. v. Salahuddin, (NJ App.,Jan. 13, 2020), a New Jersey appellate court upheld the removal of defendant as finance director and member of the governing Shura Board of a New Jersey Islamic Center. Defendant was the wife of the founder and long-time spiritual leader of the Center. She clashed with the Center's new imam, refusing to allow him or the Shura Board to oversee her financial transactions on behalf of the organization.  The court said in part:
Here, the parties' claims arise from Islamic Center's constitution and bylaws and do not involve religious doctrine or practices. The trial court's findings of fact and conclusions of law concern whether Islamic Center complied with the procedures set forth in its organizational documents. Judge LaConte applied neutral principles of law to determine if Salahuddin was lawfully removed from office. Resolution of the parties' purely secular claims did not trespass on their religious freedoms.
With respect to Salahuddin's substantive claims, our scope of review of the judge's findings in this nonjury case is limited. We must defer to the judge's factual determinations, so long as they are supported by substantial credible evidence in the record....
[W]e are convinced there is substantial, credible evidence supporting Judge LaConte's findings of fact. We also agree with his legal conclusion Islamic Center complied with its constitution and bylaws when removing Salahuddin as finance director and Shura Board member.

Tuesday, January 14, 2020

Pennsylvania Archdiocese Can Be Sued In New Jersey Courts For Priest's Abuse In New Jersey

Doe I v. Archdiocese of Philadelphia, (NJ Super. Ct., Jan. 8, 2020) is a case in which plaintiff sued the Archdiocese of Philadelphia (PA) in a New Jersey court alleging that in the 1970's he was sexually abused by a now-deceased priest who was assigned to a Pennsylvania parish.  The abuse, however, took place in New Jersey.  The suit claims that the Archdiocese was negligent in hiring, supervising and investigating complaints against the priest. Apparently the suit was brought in New Jersey because the state had extended its statute of limitations in child sex abuse cases, while Pennsylvania's statute of limitations would bar the lawsuit.  The New Jersey trial court rejected the Archdiocese's claim that the suit should be dismissed either for lack of jurisdiction or on forum non conveniens grounds. As to jurisdiction, the court said in part:
Here, the alleged conduct by the defendants’ agent ..., while in New Jersey ... caused serious injury – in the form of sexual abuse – to plaintiff. Once the abuse began, Brugger purposely transported plaintiff from Pennsylvania to New Jersey on two additional occasions to continue the abuse....
[P]laintiff is now, and was at all relevant times, a resident of Pennsylvania. Thus, plaintiff’s choice of forum in New Jersey is granted substantially less deference.... Additionally, the majority of potential witnesses are domiciled in Pennsylvania.... The Archdiocese’s principal office is located in ... Pennsylvania.... [However] the Archdiocese previously owned two properties in ... Atlantic County, New Jersey – the very county where the instant litigation pends....The New Jersey property ownership took place during the times relevant to this litigation, although no alleged abuse by Brugger occurred at either location....
Under this set of facts, it would not be a violation of defendants’ due process rights to subject them to the long-arm jurisdiction of the Courts of New Jersey, given their contacts with this State.....
Denying defendants' forum non conveniens defense, the court said in part:
the alternate forum, Pennsylvania, is inadequate as there remains no remedy there for the plaintiff due to its strict statute of limitations.

Brazil's Supreme Court Head Allows Video Satirizing Jesus to Be Shown On Netflix

AFP and AP report that the President of Brazil's Supreme Federal Court last Thursday overturned a lower court's preliminary injunction against the Netflix film The First Temptation of Christ. The film depicts Jesus in a gay relationship. In his decision last Thursday,  Judge Antonio Dias Toffoli said in part:
One cannot suppose that a humorous satire has the ability to weaken the values of the Christian faith, whose existence is traced back more than two thousand years, and which is the belief of the majority of Brazilian citizens.
On Christmas Eve, the Brazilian headquarters of Porta dos Fundos -- the company that produced the film-- were pelted with Molotov cocktails.

British Criminal Prosecution of Husband For Coercive Behavior Used To Obtain Jewish Divorce ("Get")

Britain's Serious Crime Act 2015, Sec. 76, criminalizes controlling or coercive behaviour in an intimate or family relationship. Jewish Chronicle yesterday reported that for the first time the law has been used in a private prosecution brought by a wife to obtain a get (Jewish divorce document) from her husband. According to the paper:
The husband was due to face a crown court trial in July and, if convicted, could have been jailed for up to five years.
But she has discontinued the case after her ex-husband finally gave the get last month.

Challenge To Missouri Vaccination Exemption Form Is Dismissed

Reiterating his reasoning in a November preliminary injunction decision, a Missouri federal district judge in W.B. v. Crossroads Academy- Central Street, (WD MO, Jan. 10, 2020), dismissed a challenge 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. The court said in part:
I again conclude that if the State wishes to require vaccination of school children, there is an unbroken collection of cases confirming that it can do so. It can also advocate vaccination... Such advocacy (right or wrong) deals with public health issues. It is entirely secular in nature and motive, not “hostile to religion.” For instance, it would not be hostile to a religious objection to eating pork for an agency to certify that pork is safe to eat. The certification, like the DHSS language here, is religiously neutral.... There is also no case-law cited by plaintiffs tending to show that parents are subject to a compelled speech regime when the DHSS message appears at the top of the exemption form that they are required to fill out. The text is in no way ambiguous as to the source of the vaccination recommendation.
NPR reports on the decision.

Monday, January 13, 2020

Challenge To Form 990 Rules Is Dismissed

In Nonbelief Relief, Inc. v. Rettig, (D DC, Jan. 10, 2020), the D.C. federal district court dismissed a challenge by a non-profit organization to the exemption which excuses churches from filing an annual form 990 with the Internal Revenue Service.  NonBelief Relief was formed to assist atheists and other non-religious individuals.  It contributes funds to other charitable organizations. When NonBelief Relief failed to file its Form 990 for three years, its tax-exempt status was revoked.  It then sued seeking an injunction reinstating its status, and a declaratory judgment that the church exemption violates the Establishment Clause.  The court first held that the Anti-Injunction Act and the Declaratory Judgment Act bar granting relief:
... the award of an injunction or declaratory judgment on NonBelief Relief’s behalf would restrain the government’s collection of taxes against NonBelief and its donors.
The court went on to hold that once NonBelief Relief's tax exempt status was revoked, it lost standing to challenge the constitutionality of the church exemption from filing Form 990:
NonBelief Relief alleges that it suffered an injury when, as a 501(c)(3) tax-exempt organization, it was required to file a Form 990, while churches and other religious institutions were not. But assuming that is so, that injury is neither ongoing nor imminent, because NonBelief Relief is no longer a tax-exempt organization and has expressed no intent to reapply for that status..... [I]t is being treated the same as all other non-501(c)(3) organizations.

3rd Circuit: Deprivation of Chaplain Visits Did Not Substantially Burden Inmate's Free Exercise

In Quiero v. Ott, (3rd Cir., Jan. 9, 2020), the U.S. 3rd Circuit Court of Appeals held that a prisoner's free exercise of religion was not substantially burdened by being deprived of chaplain visits for ten days.

Recent Articles of Interest

From SSRN:
From SSRN (Non-US Law):
UPDATE: Vol. 34, Issue 2 of the Journal of Law and Religion has been published online and is available without charge until Feb. 15.

Sunday, January 12, 2020

11th Circuit OKs Disqualification of Juror Who Heard From A Higher Being

In United States v. Brown, (11th Cir., Jan. 9, 2020), the U.S. 11th Circuit Court of Appeals affirmed the trial court's dismissal of a juror in the fraud case of former Florida representative Corrine Brown. At issue was a statement made by one of the jurors during deliberations. He told the other jurors:
A Higher Being told me Corrine Brown was Not Guilty on all charges.
Judge Rosenbaum agreed with the district court that the juror was not capable of reaching a verdict based only on the evidence at trial. Judge Conway concurred specially

Judge Pryor filed a 62-page dissent, saying in part:
One persistent confusion that has plagued this appeal is the notion that a juror’s belief that he has received divine guidance reflects a form of improper outside influence.... This confusion cannot withstand scrutiny. Indeed, it betrays a failure to reflect on the nature of prayer. ...
Juror No. 13’s statement that God had communicated with him described an internal mental event, not an external instruction.
[Thanks to Doug Velardo for the lead.]

5th Circuit: Firefighter Was Offered Reasonable Accommodation of His Anti-Vaccination Beliefs

In Horvath v. City of Leander, Texas, (5th Cir., Jan. 9, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit brought by Brett Horvath, a Baptist minister who was employed as a driver/ pump operator by the Leander, Texas Fire Department.  As recounted by the court:
In 2016, the Fire Department began requiring TDAP vaccinations, to which Horvath objected on religious grounds. He was given a choice between two accommodations: transfer to a code enforcement job that did not require a vaccination, or wear a respirator mask during his shifts, keep a log of his temperature, and submit to additional medical testing  He did not accept either accommodation and was fired by Fire Chief Bill Gardner for insubordination. Horvath filed suit against Chief Gardner and the City, alleging discrimination and retaliation in violation of Title VII and the Texas Commission on Human Rights Act (TCHRA), and violations of 42 U.S.C. § 1983 premised on violations of his First Amendment Free Exercise rights.
The majority concluded that the city had offered Horvath reasonable accommodations of his religious beliefs, and that the respirator alternative did not burden his religious beliefs.

Judge Ho filed a lengthy opinion dissenting in part. He was very critical of both the Supreme Court's Smith precedent and the current jurisprudence on qualified immunity.

Friday, January 10, 2020

Wife of Sex Offender Sues Church For Reporting Confessed Abuse

The Salem (OR) Statesman Journal reports on a suit filed recently in an Oregon state trial court by the wife of convicted sex offender Timothy Johnson. She claims that leaders of the Turner, Oregon Latter Day Saints congregation breached their duty to her husband in reporting his confessed sex abuse to authorities. According to the report, Johnson followed church doctrine by confessing and repenting his sins in front of clergy and the church court:
The clergy portrayed that such a confession and repentance was dictated by church doctrine, and church doctrine required strict confidence of such confessions, according to the lawsuit.....
But what leaders failed to advise Johnson of is that if he confessed to the abuse, they would report his actions to local law enforcement, according to the lawsuit. 
The lawsuit filed in Oregon singled out a man who served as a counselor to Johnson's bishop, claiming the church failed to properly supervise him and train him of his obligations as a member of the clergy.
The suit seeks damages of $9.5 million on behalf of Johnson's wife and four children.

Retaliation Suit Over Nursing School Hiring Decision Moves Ahead In Part

In Isabell v. Trustees of Indiana University, (ND IN, Jan. 7, 2020), an Indiana federal district court allowed a nursing school adjunct professor to move ahead with her First Amendment retaliation claim against the chair of the school's hiring committee.  Plaintiff claims that she was not hired for a regular faculty position that was open because of her pro-life views. The court however dismissed plaintiff's claim against the University under Indiana's Conscience Act. because of 11th Amendment immunity. Indiana Lawyer reports on the decision. [Thanks to Steven Coleson for the lead.]