Supreme Court Grants Review Of City's Refusal To Contract With Catholic Social Services

The U.S. Supreme Court today granted review in Fulton v. City of Philadelphia, (Docket No. 19-323, certiorari granted 2/24/2020) (Order List). The case will be argued next term. In the case, the U.S. 3rd Circuit Court of Appeals upheld held against 1st Amendment challenges the City of Philadelphia's policy of refusing to contract with foster care agencies, such as Catholic Social Services, that will not place children with same-sex married couples. (See prior posting.)  Links to filings with the Supreme Court in the case are available from SCOTUSblog's case page.

European Court Finds That Azerbaijan Violated Rights of Jehovah's Witnesses

On February 20, 2020, the European Court of Human Right issued two chamber judgments finding violation of religious freedom rights by Azerbaijan. In Nasirov and Others v. Azerbaijan (application no. 58717/10), the court held that the detention of several Jehovah’s Witnesses for door to-door preaching and distribution of literature violated their rights to freedom of religion (Art. 9) and liberty of person (Art. 5) under the European Convention on Human Rights.

In Religious Community of Jehovah’s Witnesses v. Azerbaijan (no. 52884/09), the Court concluded that Azerbaijan's ban on the importation of specified religious books violated Jehovah's Witnesses freedom of expression under the European Convention on Human Rights (Art. 10) considered in connection with their right to freedom of religion (Art. 9), saying in part:

Cases which involve prior restraint call for special scrutiny by the Court.

Azerbaijan had argued that the three titles in question contained disparaging remarks about the Christian and Jewish communities, contending:

[T]he books in question implied religious superiority and incited religious discord and could therefore damage the peaceful coexistence of several religious communities in a multireligious society...

The court concluded however that Azerbaijani courts "did not carry out careful balancing exercise in conformity with the criteria laid down in its case-law and did not provide “relevant and sufficient” reasons for the interference."

Recent Articles of Interest

From SSRN:

• Phil Lord, Case Comment: Garcia v Church of Scientology Flag Service Organization, (86:2 Arbitration __ (Forthcoming)).
• Richard H. Weisberg, Binaries: Remarks on Chaim N. Saiman's 'Halakhah', (Villanova Law Review, Vol. 64, No. 5, 2019).
• Micah Schwartzman & Nelson Tebbe, Establishment Clause Appeasement, (Virginia Public Law and Legal Theory Research Paper No. 2020-17 (2020)).
• Sahar F. Aziz, The Social Construction of the Racial Muslim, (Rethinking Orientalism (ed. Tamara Sonn) (Oxford University Press), Forthcoming).
• Melissa Were, The Right to Emergency Medical Treatment in the Context of Abortion in Kenya, (October 2019).
• Kaiponanea T. Matsumura, The Integrity of Marriage, (William & Mary Law Review, Vol. 61, No. 2, 2019).

New Chinese Regulations For Religious Groups Took Effect This Month

A Fact Sheet issued last week by the U.S. Commission on International Religious Freedom summarizes China's 2019 Administrative Measures for Religious Groups which became effective on February 1, 2020. Bitter Winter magazine provides a full translation of the Measures. Among the provisions are the following:

Religious organizations must support the leadership of the Communist Party of China, abide by the Constitution, laws, regulations, rules and policies, adhere to the principles of self-support and self-governance, adhere to the direction of Sinicization of religions in China, embody the core values ​​of socialism, and maintain national unity, ethnic unity, religious harmony and social stability.

... Religious organizations shall accept professional guidance and supervision by the religious affairs department of the people’s government.

No 1st Amendment Violation In Requiring Parolee To Live At Christian Homeless Shelter

In Janny v. Gamez, (D CO, Feb. 21, 2020), a Colorado federal district court dismissed an inmate's First Amendment challenge to his arrest for parole violations. Mark Janny's parole officer directed him to stay at a Christian homeless shelter in order to meet the parole requirement that he establish a residence of record. Janny was expelled from the shelter's program when he refused to attend chapel religious services. The court held that plaintiff's Establishment Clause rights were not infringed because there was a secular purpose for the homeless shelter requirement. The court also accepted defendant's qualified immunity defense to an assertion of free exercise violations, saying that it was not clearly established that a parole officer violates a parolee’s rights by requiring him to reside at a facility that provides religious programming.

Swiss Court Says Company's Logo Is Not Offensive To Christians

Swiss Info reports that Switzerland's Federal Administrative Court has ruled against the Swiss Federal Institute of Intellectual Property's attempt to prevent the company Jägermeister from expanding the use of its logo (a stag with a glowing cross between it antlers) beyond liquor and clothing items. The Institute argued that the logo was offensive to the religious views of some consumers. According to Swiss Info:

The court ... said ...: although the story behind the logo indeed stems from an old Christian tale, today the average consumer associates it clearly with the Jägermeister liqueur rather than revelation....

For the Swiss federal judges, ... the “intensive” use of the image by Jägermeister had “weakened its religious character” over time, and nobody was likely to be offended. 

The company is thus free to use it for all promotional activities and products in Switzerland including cosmetics, mobile phones, or telecommunications services.

[Thanks to Tom Rutledge for the lead.]

DOJ Sues Nebraska Village For Refusing Building Permits To Church

The Justice Department announced yesterday that it has filed suit in a Nebraska federal district court against the village of Walthill, Nebraska alleging violations of the "substantial burden" and "equal terms" provisions of the Religious Land Use and Institutionalized Persons Act.  The complaint (full text) in United States v. Village of Walthill, Nebraska, (D NE, filed 2/20/2020), alleges in part:

This civil action is based on the Village’s unlawful refusal to allow Light of the World Gospel Ministries, Inc...., a non-denominational Christian church, to construct a new place of worship on property it owns in a commercial (“C-1”) district of the Village by denying the Church necessary permits. 

... Since 2007, LOTW has operated religious services out of a small, 1,250 sq. ft. building ... on another lot in the C-1 district. The space is no longer adequate to serve its religious needs, and the unstable condition of a dilapidated building next to the church on the property made the space unsafe. The Village refused to permit LOTW to build its noncommercial religious property in the C-1 district, but has permitted noncommercial nonreligious entities to construct buildings in the C-1 district during the same time period.

Court Says Student Evangelists May Preach In Chicago's Millennium Park

In Swart v. City of Chicago, (ND IL, Feb. 20. 2020), an Illinois federal district court granted a preliminary injunction to four Wheaton College students who were part of an outreach ministry to prevent the city of Chicago from enforcing its regulations limiting speech and handbilling activities in the downtown Millennium Park. The court held that the park is a traditional public forum, that the regulations, as enforced, are not content neutral and unconstitutionally vague.  The court also granted a preliminary injunction to intervenors who engage in other kinds of speech activities in the park. Chicago Sun Times reports on the decision.

Jewish School Sues Town For Religious Discrimination

A religious discrimination suit was filed in a New York federal district court this week by an Orthodox Jewish girl's school against the Town of Clarkstown, New York charging it with wrongfully preventing the school from purchasing a Baptist Church property.  The complaint (full text) in Ateres Bais Yaakov Academy of Rockland v. Town of Clarkston, (SDNY, filed 2/18/2020), alleges in part:

In early January 2019, in reaction to ABY’s pending permit application following its entry into a contract for the purchase of the Property, Clarkstown Supervisor George Hoehmann, other Clarkstown officials and members of a Rockland County political party, members of CUPON, and CUPON’s counsel met to concoct a plan to prevent ABY’s purchase of the Property.

... In parallel to the manufactured public pressure from CUPON, the Town denied ABY’s permit application through a blatant misapplication of its zoning laws....

Following its knowing interference with and evisceration of ABY’s contract topurchase the  Property and months of delay, the Town purchased the Property for itself. For the Town, this is but the latest example in a demonstrable pattern of wreaking havoc on religious property applicants to prevent their engagement in the Clarkstown community. 

Lower Hudson News reports on the lawsuit.

Harrisburg Catholic Diocese Files For Bankruptcy Reorganization

Yesterday, the Catholic Diocese of Harrisburg (PA) filed for bankruptcy reorganization in federal bankruptcy court. In announcing the move, Bishop Robert Gainer said in part:

Over the past few years, our Diocese has been forced to confront our horrific past regarding clergy sexual abuse. Today, we are facing some difficult financial realities. Despite making every attempt to scale back operations and reduce overhead, we are currently unable to meet our financial obligations.

... Our current financial situation, coupled with changes in the law both here and in New Jersey, where we are already named in one lawsuit and where we anticipate more to follow, left us with no other path forward to ensure the future of our Diocese. Despite the success of the Survivor Compensation Program, which helped 111 survivors of clergy child sexual abuse, or 96% of those who participated in the Program, we already are in receipt of half a dozen new lawsuits, any one of which could severely cripple the Diocese.

As Bishop, I must ensure the Diocese’s core mission is upheld, which is to remain focused on Christ’s mandate to preach, teach, sanctify, and to serve those in need. We must work to bring the Chapter 11 process to a conclusion, as soon as is reasonably possible and in a way that allows us to be present to the community, as we have been for the past 152 years.

Links to all the pleadings and other documents in the case are available here.  Reporting on the filling, AP says that the diocese joins at least 20 others across the country that have filed for bankruptcy. The diocese says it has assets of less than $10 million with liabilities between $50 and $100 million.

Parents Sue School District Over Its Transgender Policy

A group of parent filed suit this week against the Madison, Wisconsin school district challenging the district's policy on transgender students.  The complaint (full text) in Doe I v. Madison Metropolitan School District, (WI Cir. Ct., filed 2/18/2020) contends that the district's policy violates state constitutional provisions protecting parental rights and their free exercise of religion. The complaint describes the district's policy as follows:

The policy enables children, of any age, to socially transition to a different gender identity at school without parental notice or consent, requires all teachers to enable this transition, and then prohibits teachers from communicating with parents about this potentially life-altering choice without the child’s consent. Even more, the Madison School District directs its teachers and staff to deceive parents by reverting to the child’s birth name and corresponding pronouns whenever the child’s parents are nearby.

The complaint goes on to allege:

As a direct result of their religious beliefs, if these Plaintiffs’ children ever experience gender dysphoria, they would not i mmediately “affirm” whatever beliefs their children might have about their gender, but would instead remind them that they were “fearfully and wonderfully made,” see Psalm 139:14, and seek to help them identify and address the underlying causes of the dysphoria and learn to accept and embrace their God-given sex.

... At the same time, Plaintiffs w ill never stop loving their children, or love them any less, no matter what they believe about their gender.

LGBTQ Nation reports on the lawsuit.

11th Circuit: Pensacola Cross May Stay

In Kondrat'yev v. City of Pensacola, Florida, (11th Cir., Feb. 19, 2020), the U.S. 11th Circuit Court of Appeals, in a case with a complicated procedural history, held that a 34-foot cross in Pensacola's Bayview Park does not violate the Establishment Clause. Originally a 3-judge panel of the 11th Circuit, relying on past precedent, reluctantly ordered the cross removed. (See prior posting.)  The case was appealed to the Supreme Court which summarily vacated the judgment and remanded the case to the 11th Circuit for further consideration in light of its decision in American Legion v. American Humanist Assn. (See prior posting).  Now the 11th Circuit has decided that the cross may stay.  However, two of the judges filed a concurring opinion questioning the circuit's precedent on when plaintiffs have standing to bring an Establishment Clause challenge, saying in part:

we should—whether in this case or some other— convene en banc in order to bring our own Establishment Clause standing precedent into line with the Supreme Court’s and to clarify that  offen[se],”“affront[],” and “exclu[sion]” fail to satisfy Article III’s injury-in-fact requirement.

Pensacola News Journal reports on the decision.

3rd Circuit: Employee's Flu Vaccine Objections Were Not Religious

In Brown v. Children's Hospital of Philadelphia, (3rd Cir., Feb. 14, 2020), the U.S. 3rd Circuit Court of Appeals affirmed the dismissal of a religious discrimination claim brought by a hospital employee who was fired for refusing to obtain a flu vaccination.  The court held that Naija Brown's objections were not "religious". She practiced an "African Holistic Heath" lifestyle. She claimed that while she did not have a pastor to validate her beliefs, she filed an "advance vaccine directive" prepared by Natural Solutions Foundation. The court concluded that her opposition to the vaccine were medical, not religious. PennLive reports on the decision.

Recent Articles of Interest

From SSRN:

• Richard Moon, The Law Society of BC v. Trinity Western University: Complicated Answers to a Simple Question, (July 30, 2019).
• Jean Stefancic, Law, Religion, and Racial Justice: A Comment on Derrick Bell's Last Article, (Case Western Reserve Law Review, Vol. 69, No. 2, 2018).
• Greg Walsh, Trinity Western University and the Future of Conservative Religious Education, (2020).
• Lloyd Hitoshi Mayer & Zachary B. Pohlman, What Is Caesar's, What Is God's: Fundamental Public Policy for Churches, (Notre Dame Legal Studies Paper No. 200211 (2020).
• Abhinav Chandrachud, The Many Meanings of Constitutional Morality, (January 18, 2020).
• Muhammad Sohail & Ataullah Khan Mahmood, Islamic Criminal Jurisprudence on the Offence of Trafficking in Persons: An Interpretation of Fasad fil Arz and Hadd Offence, (Pakistan Journal of Islamic Research (2019)).
• Ataullah Khan Mahmood & Ijaz Ali Chishti, Blasphemy Law and Its Interpretation a Pakistan’s Perspective, (Al Tafseer, Vol 34 (2019)).

Parishioners Sue Claiming Wrongful Removal of Priest

An unusual lawsuit was recently filed against the Archdiocese of Detroit by 20 parishioners of a Detroit Roman Catholic parish. The suit filed in a Michigan state trial court claims plaintiffs suffered extreme emotional distress when their priest was falsely accused of sexually abusing a minor and was removed . The complaint (full text) in Dux v. Bugarin, (MI Cir. Ct., filed 1/31/2020), alleges that the Archdiocese, afraid of being attacked by the press for failure to respond to sex abuse charges, twisted allegations and engaged in improper investigatory interrogations to fabricate a rape charge against Fr. Eduard Perrone.  It further alleges that Michael Bugarin, the priest charged with conducting the investigation of Fr. Perrone, is a conservative who was opposed to reforms in the Church advocated by plaintiffs and by Fr. Perrone. The complaint also claims that defendants fraudulently failed to disclose that funds solicited in their annual Catholic Services Appeal would be used for the investigation of Fr. Perrone. Detroit Free Press reports on the lawsuit.

British Court Refuses Financial Support Orders For Non-Complying Religious Marriage Ceremonies

Under Britain's Matrimonial Causes Act, a party to a "void marriage" may obtain a decree of nullity from a family court which entitles the party, among other things, to seek an order for financial support.  In Attorney General v. Akhter, (EWCA, Feb. 14, 2020), Britain's Court of Appeal held that a party to an Islamic marriage ceremony held in a restaurant rather than a building registered as a marriage site and without other required formalities may not obtain a decree of nullity because the original ceremony not was not sufficient to even create a "void marriage."  The husband and wife had planned to follow the religious ceremony with a civil ceremony,  but never followed through on those plans. They remained together for 18 years and had four children before the wife sued for divorce. The court also posted a Media Summary of the decision.

Reporting on the lawsuit, International News quotes a critic of the decision

Today’s judgment will force Muslim and other women to turn to Sharia ‘courts’ that already cause significant harm to women and children for remedies because they are now locked out of the civil justice system.

Air Force Changes Rules To Accommodate Religious Headgear and Beards

As reported by the Air Force Times, the Air Force earlier this month (Feb. 7) amended its Dress and Personal Appearance rules to allow airmen to request a waiver to permit wearing of conservative religious apparel, (Full text of amended Air Force Instruction.) The amended rules specifically address the wearing of hijabs, beards, and turbans or under-turbans/ patkas with uncut beard and uncut hair. The Army issued similar rules in 2017. (See prior posting.) [Thanks to Scott Mange for the lead.]

5th Circuit Dismisses Street Preacher's Suit Over Summons

In Roy v. City of Monroe, (5th Cir., Feb. 13, 2020), the U.S. 5th Circuit Court of Appeals affirmed the dismissal of a suit by a street preacher who was issued a summons, but then acquitted, of disturbing the peace. He then sued the police and the city of Monroe, Louisiana for violation of his free speech and free exercise as well as for other violations.  The 5th Circuit summarized it conclusions:

[T]he city of Monroe’s “disturbing the peace” ordinance is not unconstitutionally vague; that, because Sergeant Booth had probable cause to issue a summons under the ordinance, he was entitled to qualified immunity from Roy’s First Amendment retaliation claim; and that, in the light of these holdings, Roy cannot prevail on his claims under the Fourth Amendment and Due Process Clause.

AP reports on the decision.

International Religious Freedom Alliance Founded

Last week, Secretary of State Mike Pompeo announced that 26 nations have joined the United States to create the International Religious Freedom Alliance.  The nations pledged to uphold a Declaration of Principles committing them to take both proactive and reactive actions to uphold freedom of belief, thought, conscience and religion as protected by international law and United Nations International Covenant on Civil and Political Rights. [Thanks to Law & Religion UK for the lead.]

Prof Loses Fight Against School Rules On Transgender Discrimination

In Meriwether v. Trustees of Shawnee State University, (SD OH, Feb. 12, 2020), an Ohio federal district court judge adopted a magistrate's recommendation and dismissed a lawsuit by a college professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The philosophy professor refused to address a transgender student using the student's preferred gender identity title and pronouns. Instead he used only the student's last name. The court said in part:

[The faculty member's] speech-- the manner by which he addressed a transgender student-- was not protected by the First Amendment.  Further, he did not plead facts sufficient to state a claim for a violation of his right to free exercise of religion ... or for a violation of his rights to due process or equal protection.

Metro Weekly reports on the decision.