Supreme Court Will Hear Arguments Today In Montana Religious School Aid Case

The U.S. Supreme Court will hear oral arguments this morning in Espinoza v. Montana Department of Revenue.  In the case, the Montana Supreme Court held that Montana's tax credit program for contributions to student scholarship organizations is unconstitutional under Montana Constitution Art. X, Sec, 6 which prohibits state aid to sectarian schools. (See prior posting.) The Solicitor General will  participate in oral argument, contending that Montana's "no-aid" provision violates the U.S. Constitution's free exercise clause.  SCOTUS blog has a preview of today's arguments. Here is SCOTUS blog's case page with links to all the filings in the case and to additional discussion of the issues involved. I will post the transcript of the oral arguments later today when it becomes available.

2nd Circuit: No Amended Complaint In Falun Gong Torture Lawsuit

In Chen Gang v. Zhao Zhizhen, (2d Cir., Jan. 13, 2020), the U.S. 2nd Circuit Court of Appeals agreed with the district court holding plaintiffs cannot file a third amended complaint in their long-running lawsuit. In the suit, originally filed in 2004, plaintiffs representing a class of Falun Gong practitioners claimed that defendant used his influential position in China to encourage persecution of Falun Gong members there. The motion came after dismissal of plaintiffs' earlier complaint alleging aiding and abetting and conspiracy in violation of the Torture Victim Protection Act. Washington Post reported on the decision.

New Survey On Antisemitism In France

American Jewish Committee Paris yesterday released a new 35-page report on antisemitism in France (Full text of report). The report analyzes surveys conducted in October and November of 2019. AJC's release summarizing the report says in part:

Nearly three-quarters, 73%, of the French public, and 72% of Jews, consider antisemitism a problem that affects all of French society. 47% of the general public and 67% of the Jewish respondents say the level of antisemitism in France is high, while 27% and 22%, respectively, say it is low.

While 53% of the general public say antisemitism has been increasing, and 18% decreasing, in recent years, 77% of Jews say it has increased and 12% decreased....

... 70 percent of French Jews say they have been victims of at least one antisemitic incident in their lifetime, 64% have suffered anti-Semitic verbal abuse at least once, and 23% have been targets of physical violence on at least one occasion, with 10 percent saying they were attacked several times.

5th Circuit: Court Should Not Agree To Use Pronoun Requested By Litigant

In United States v. Varner, (5th Cir., Jan. 15, 2020), the U.S. 5th Circuit Court of Appeals denied a motion by a transgender female inmate for a name change on the inmate's judgement of confinement.  Petitioner wanted the male name on her judgment changed to reflect her later name change to that of a female.  In addition, petitioner sought to require the courts to refer to her using female pronouns. The majority and the partial dissent disagree on whether this motion refers to the district court, or only to the Court of Appeals. In rejecting this request, the majority said in part:

[I]f a court were to compel the use of particular pronouns at the invitation of litigants, it could raise delicate questions about judicial impartiality. Federal judges should always seek to promote confidence that they will dispense evenhanded justice. See Canon 2(A).... In cases like these, a court may have the most benign motives in honoring a party’s request to be addressed with pronouns matching his “deeply felt, inherent sense of [his] gender.” ... Yet in doing so, the court may unintentionally convey its tacit approval of the litigant’s underlying legal position.... Even this appearance of bias, whether real or not, should be avoided....

A Washington Post op-ed discusses the decision.

Recent Articles of Interest

From SSRN:

• Monika Zalnieriute & Catherine Weiss, Reconceptualizing Intersectionality in Judicial Interpretation: Moving Beyond Formalistic Accounts of Discrimination on Islamic Covering Prohibitions, (Berkeley Journal of Gender, Law and Justice, 2020).
• Benjamin L. Berger, Is State Neutrality Bad for Indigenous Religious Freedom?,(in Jeffrey Hewitt, Beverly Jacobs, and Richard Moon, eds., Indigenous Spirituality and Religious Freedom (Toronto: University of Toronto Press, Forthcoming)).
• Anthony Shaw, Expressions of Sovereign Power in the Roman Tetrarchy and the Byzantine Empire: A Comparative Constitutional Analysis, (December 27, 2019).
• Robert H. Jackson & John Q. Barrett, The Faith of My Fathers, (168 U. Pa. L. Rev. 1 (2019).
• Michael A. Helfand, ‘The Peculiar Genius of Private-Law Systems': Making Room for Religious Commerce, (Washington University Law Review, Forthcoming).
• Katherine Shaw, Reva B. Siegel & Melissa Murray, Introduction: Reproductive Rights and Justice Stories, (Forthcoming).
• David S. Cohen & Carole Joffe, Obstacle Course: The Everyday Struggle to Get an Abortion in America (Introduction), (California Press 2020).
• Beatrice Jessie Hill & Ruth Faden, Brief for Biomedical Ethicists Ruth R. Faden, PH.D., et al., Amici Curiae in Support of Petitioners, EMW Women’s Surgical Center, P.S.C., et al. v. Adam Meier, No. 19-417 (9th Cir. Oct. 28, 2019),  (November 28, 2019).
• Shirley Lin, Dehumanization 'Because of Sex': A Neutral Approach to the Rights of Sexual Minorities Under Multiaxial Analysis, (Lewis & Clark Law Review, Forthcoming).
• M. Stuart Madden, The Social Guidance of Myth, Folklore and Faith, (December 22, 2019).

Claims Against Notre Dame and Feds Over Contraceptive Coverage Move Ahead

Irish 4 Reproductive Health v. U.S. Department of Health and Human Services, (ND IN, Jan. 16, 2020), is the latest installment in the dispute over the extent to which Notre Dame University must provide contraceptive coverage in its health insurance plans for employees and students. As described by the Indiana federal district court:

There are really two separate disputes at play here. The first involves a challenge to regulations that would allow Notre Dame to declare itself exempt from the Women’s Health Amendment of the Patient Protection and Affordable Care Act (“ACA”)....

The second part of this case presents a [new] wrinkle.... [A] week after issuing the interim final rules..., the Federal Defendants executed a private settlement agreement with Notre Dame exempting the university from all existing and future requirements with respect to contraceptive coverage. Notre Dame did not seek input from its students or faculty before entering into the settlement agreement. The Plaintiffs in this case — Irish 4 Reproductive Health (an association of Notre Dame students), Natasha Reifenberg, and Jane Does 1-3 — claim this backroom deal is illegal and unconstitutional. 

The court refused to dismiss plaintiffs' claims that the settlement agreement and the exemptive rules violate the Administrative Procedure Act and the Establishment Clause of the 1st Amendment. However the court did dismiss due process and equal protection challenges. (See prior related posting.)

Canadian Court Says Indigenous Events In School Did Not Infringe Religious Freedom of Christian Students

In Canada, in Servatius v. Board of Education School District No. 70, (BC Sup. Ct., Jan. 8, 2020), a British Columbia trial court judge rejected claims of infringement of religious freedom asserted by the mother of two school children. The court summarized the dispute:

As part of an effort to acquaint students with Indigenous culture and to promote a sense of belonging in Indigenous children, a Nuu-chah-nulth Elder visited a Port Alberni elementary school and demonstrated the practice of smudging. A few months later, an assembly at this public school witnessed an Indigenous dance performance, in the midst of which the dancer said a prayer. The petitioner is an evangelical Christian. Her nine-year-old daughter and seven-year-old son were enrolled in the school and witnessed these demonstrations of Indigenous culture and spirituality.

In dismissing the claims, the court said in part:

When arrangements are made for Indigenous events in its schools, even events with elements of spirituality, the School District is not professing or favouring Indigenous beliefs. Educators are holding these events to teach about Indigenous culture, and to introduce students to Indigenous perspectives and worldviews....

I conclude that proof on an objective basis of interference with the ability of the petitioner or her children to act in accordance with their religious beliefs requires more than the children being in the presence of an Elder demonstrating a custom with spiritual overtones or being in the presence of a dancer who said a brief prayer. In most instances, it is not difficult to recognize the boundary between a student learning about different beliefs and being made to participate in spiritual rituals. A field trip to a mosque to watch prayers would be learning about Islam; an Imam coming to the classroom and demonstrating prayer rituals would likewise not be problematic. However, in either of these cases, if the involvement of the students progressed to being called upon to pray or read from the Koran then it might well be said that educators have compelled the manifestation of a specific religious practice or the affirmation of a specific religious belief. If a Catholic priest came to school with altar candles and a censer containing incense to acquaint the students with the sights and scents of Church rites, this would seem to be well within the bounds of what the S.L. case stands for: religious freedom is not compromised when students are taught about other beliefs. If, however, the children underwent a baptism, this would be far over the line.

(See prior related posting.)

Supreme Court Grants Review In Contraceptive Mandate Exemption Case

The U.S. Supreme Court today granted review in Little Sisters of the Poor v. Pennsylvania (Docket No. 19-431) and Trump, President of the U.S. v. Pennsylvania (Docket No. 19-454) (certiorari granted 1/17/2020). (Order List).The two cases were consolidated for oral argument. In the case, the U.S. 3rd Circuit Court of Appeals affirmed a district court's entry of a nationwide preliminary injunction against enforcement of the Trump Administration's final rules expanding the scope of the exemptions under the Affordable Care Act for employers having religious or moral objections to contraceptive coverage. (See prior posting). Little Sisters of the Poor were intervenors in the 3rd Circuit case. (See prior posting.)

8th Circuit Hears Arguments In Religion Clause Challenge To Missouri Abortion Restrictions

The U.S. 8th Circuit Court of Appeals yesterday heard oral arguments (audio of full arguments) in Doe v. Parson (Docket No. 19-1578). In the case, a Missouri federal district court rejected both Establishment Clause and free exercise challenges to Missouri's abortion law.  The suit, filed by a member of the Satanic Temple, challenges the requirement that health care providers furnish women seeking an abortion in Missouri a state-prepared booklet that states, in part, that life begins at conception. (See prior posting.) Courthouse News Service reports on yesterday's arguments.

Online Site Has Immunity In Banning Conversion Therapy Videos

In Domen v. Vimeo, Inc., (SD NY, Jan. 15, 2020), a New York federal magistrate judge dismissed a suit by James Domen, a pastor who is the founder of Church United, a non-profit organization devoted to preserving the rights of pastors to exercise their faith without unlawful infringement.  Domen sued claiming religious and sexual orientation discrimination after Vimeo, an online video-sharing website, closed his account when he refused to remove five videos promoting sexual orientation change efforts.  The court held that Vimeo had both publisher immunity and immunity to police content under Section 230 of the Communications Decency Act, and that Section 230 pre-empts state civil rights laws. It also held that Domen had not shown the required discriminatory intent under either California or New York's anti-discrimination laws, and had not stated a free speech claim under California's constitution.  Courthouse News Service reports on the decision.

6th Circuit: Mosque Is Not In Interstate Commerce Under Federal Arson Statute

In United States v. Doggert, (6th Cir., Jan. 15, 2020), the U.S. 6th Circuit Court of Appeals reversed defendant's conviction for solicitation to commit federal arson of a local mosque. The federal arson statute (18 USC §844(i)) covers only property used in interstate of foreign commerce or in an activity affecting such commerce. The court said in part:

By any conventional measure, these terms do not cover the attempted destruction of a local mosque or for that matter any house of worship. In everyday English, one does not think of a mosque that serves a 200-person local community as a building used in commerce, much less interstate commerce. There may be plenty of good reasons to prosecute Robert Doggart for his deranged plan. But the words of this statute are not one of them.

However the court upheld Doggart's conviction under 18 USC §373 for solicitation to commit a crime of violence, namely destroying religious property in violation of 18 USC 247. [Thanks to Volokh Conspiracy for the lead.]

Suit In India Over Discriminatory Citizenship Law

In India, the state of Kerala has filed suit in the Supreme Court challenging as discriminatory the Citizenship Amendment Act, 2019, and various prior rules on citizenship for members of certain religious minorities who entered the country illegally. The complaint (full text) in State of Kerala v. Union of India, (India Sup. Ct., filed 1/14/2020), alleges in part:

The Impugned Amendment Act and Rules and Orders, though cover the persecuted religious minorities of Pakistan, Afghanistan and Bangladesh, overlooks the issues of Rohingyas in Myanmar and Muslims in Sri Lanka, who are also miniscule minorities in the said countries, which are also sharing international borders with India and which are also countries to which and from which there has been trans- border migrations....

The Impugned Amendment Act and Rules and Orders are discriminatory in so far it covers only religious persecution, among persecutions on very many grounds, of an irrationally chosen class of minorities in an unreasonably chosen class of neighbouring countries.... They do not cover the persecutions on the grounds of ethnicity, linguistics etc even in the said class of three countries. They do not cover the ethnic issues of Balochs, Sindhis, Pakthuns and Mohajirs in Pakistan and the Biharis in Bangladesh.

Jurist reports on the lawsuit. (See prior related posting.)

New Federal Proposals On Grants To Religious Entities, Campus Speech and Guidance on School Prayer

The White House (Fact Sheet, President's Remarks), the Department of Justice and the Department of Education each yesterday announced initiatives on school prayer and participation of religious organizations in government grant programs.

The Department of Education issued a 203-page Notice of Proposed Rulemaking (full text) which proposes rule changes to prevent discrimination against faith-based entities receiving federal grants and to protect free speech on campuses. DOE and the Department of Justice also issued revised Guidance on Constitutionally Protected Prayer and Religious Expression in Public Elementary and Secondary Schools (full text).

The Department of Justice issued a 29-page Notice of Proposed Rulemaking (full text) on  Equal Participation of Faith-Based Organizations in Department of Justice’s Programs and Activities. Among the changes described in the Notice is one which:

delet[es] the requirement that faith-based social service providers refer beneficiaries objecting to receiving services from them to an alternative provider and the requirement that faith-based organizations provide notices that are not required of secular organizations.

Finally, the Office of Management and Budget issued a 2-page Memorandum providing guidance as to federal grants. (full text). It reads in part:

Even when no Federal regulation or grant term penalizes or disqualifies grant applicants from participation based on their religious character, some state laws governing awards to subgrantees, including state constitutions, may purport to limit sub-grantee participation in violation of the U.S. Constitution. In attempting to comply with such state constitutions and laws, grantees may be discriminating against applicants for sub-grants on the basis of religion, in violation of the Constitution's Free Exercise Clause and the grantee's commitment to adhere to Federal laws prohibiting discrimination under 2 C.F.R. § 200.300. Accordingly, grant awarding agencies shall ensure that the terms of the Federal grants they award make clear that states or other public grantees may not condition sub-awards of Federal grant money in a manner that would disadvantage grant applicants based on their religious character.

USA Today reports on these developments.

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.

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

Last week, American Atheists released its report: 2019 State of the Secular States.  The 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.