HHS Sued Over Non-Enforcement of LGBTQ Anti-Discrimination Rules

As previously reported, last November the U.S. Department of Health and Human Services announced actions that effectively allow agencies receiving HHS grants to refuse to serve gay, lesbian and transgender individuals and families on religious grounds. First, HHS issued a Notice of Non-Enforcement of  rules adopted in 2016 that prohibit such discrimination. HHS then issued a Notice of Proposed Rulemaking that would repromulgate the rules with narrower anti-discrimination protections. Yesterday, a lawsuit was filed in a New York federal district court challenging the legality of the Notice of Non-Enforcement.

The complaint (full text) in Family Equality v. Azar, (SD NY, filed 3/19/2020) contends that the Notice of Non-Enforcement violates the Administrative Procedure Actin three ways. It was promulgated without notice-and-comment rule making. It was based on a mistaken determination that the 2016 original non-discrimination rule did not comply with the Regulatory Flexibility
Act. HHS failed to consider alternative remedies, the costs and benefits of their decision, and the public interest.  Lambda Legal issued a press release announcing the filing of the lawsuit, saying in part:

As the coronavirus pandemic continues to spread rapidly throughout the U.S., LGBTQ individuals of all ages are left vulnerable by the Trump administration’s illegal action, which implicitly permits discrimination when providing critical services.

Maine Voters Refuse To Repeal Strengthened Vaccination Requirements

As reported by BJC, on Super Tuesday earlier this month, voters in Maine, by a 3-1 margin, rejected an attempt to repeal Maine's new stronger immunization law. The law removes the prior exemption for religious and philosophical objections to vaccination. The law goes into effect in September 2021.

USCIRF Fact Sheet On COVID-19's Impact on Religious Freedom

The U.S. Commission on International Religious Freedom has issued a new Fact Sheet titled: The Global Response to the Coronavirus: Impact on Religious Practice and Religious Freedom.

Maryland Amends Hate Crime Law

The Maryland General Assembly this week gave final passage to an amended hate crime law, making it easier to convict. The bill-- SB606/ HB917 (full text)-- defines a hate crime as one "motivated  in whole or in substantial part" by a person's race, color, religious beliefs, sexual orientation, gender, disability, or national origin, or because another person or group is homeless. Previously the law required the crime be committed "because of" such characteristics. WTOP News reports on the legislature's action.                   

White House Briefs New York's Orthodox Rabbis On COVID-19 Precautions

Jerusalem Post and Jewish Insider report that the White House yesterday held a conference call with 15 leading Orthodox rabbis in the New York area to encourage them to follow the White House guidelines designed to prevent the further spread of COVID-19. The call was conducted by Avi Berkowitz, an Orthodox Jew who is an assistant to the President. More than 100 people have tested positive for the coronavirus in New York's Orthodox Jewish Borough Park neighborhood. After the call, the Satmar Rebbe, Rabbi Aaron Teitelbaum, ordered all synagogues and Jewish schools in the largely Hasidic village of Kiryas Joel to close.

9th Circuit: Religious References At Sentencing Hearing Were OK

In United States v. Hong, (9th Cir., March 17, 2020), the U.S. 9th Circuit Court of Appeals held that a district court did not violate defendants' free exercise rights at a sentencing hearing in a fraud case, saying in part:

The district court did not plainly err in describing how the Hongs used religion to carry out their fraudulent scheme, in commenting on video footage showing Grace Hong speaking to a church group, or in mentioning the spiritual harm suffered by the Hongs’ victims. The Hongs point to no binding legal authority precluding a sentencing court from considering the religion of the victims or noting the spiritual impact of an offense on the victims. 

Judge May No Deduct Litigation Expenses Borne By His Legal Defense Fund

As previously reported, in 2018 the Oregon Supreme Court suspended state circuit court judge Vance D. Day from his judicial office for three years without pay. The suspension was based in part on Judge Day's refusal to solemnize same-sex marriages.  Now in Vance v. Department of Revenue, (OR Tax Ct., March 13, 2020), the Oregon Tax Court held that Day improperly claimed as a deduction on his state income tax $128,000 in legal fees paid on his behalf by his legal defense fund.

Supreme Court Postpones Oral Arguments For Public Health Reasons

The U.S. Supreme Court announced yesterday that it is postponing oral arguments currently scheduled for it March session because of the COVID-19 pandemic. Included in the cases postponed are Tanzin v. Tanvir (availability of money damages under RFRA) and the consolidated arguments in two cases involving the scope of the Ministerial Exception doctrine (Our Lady of Guadalupe v. Morrissey-Berru and St. James School v. Biel). The Court's press release added:

The Court’s postponement of argument sessions in light of public health concerns is not unprecedented.  The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic.  The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.

Recent Articles of Interest

From SSRN:

• Itamar Mann, Zionism and Human Rights, (International Journal of Constitutional Law, Volume 17 issue 4 (October, 2019)).
• Ram Rivlin, Family Law and Religion in Israel, (March 9, 2020).
• Barbara E. Armacost, Celebrating Robert Cochran and the Future of "Embodied" Christian Legal Scholarship, (Pepperdine Law Review, Forthcoming).
• Amy J. Sepinwall, Conscience in Commerce, (February 19, 2020).
• Emad H. Atiq, Review of 'Natural Law and the Nature of Law,' by Jonathan Crowe, (Notre Dame Philosophical Reviews, 2020).
• Daniel Peterson, Case Note: Constitutional Court Decision No 93/PUU-X/2012 on Shari’a Banking Dispute Resolution, (Australian Journal of Asian Law, Vol. 20, No. 2, Article 7, 2020).
• Natalie Silver, When Charity No Longer Begins and Ends at Home: The Australian Government's Regulatory Response to Charities Operating Overseas,  (Adelaide Law Review, 40:3, 2019, pp. 755-782).

From SmartCILP and elsewhere:

• Sarah A. Morgan Smith, Commonwealth As Civic Communion, [Abstract], 57 University of Louisville Law Review 467-500 (2019).
• Journal of Law and Religion, Vol. 34, Issue 3 (Dec. 2019) has recently appeared.

6th Circuit Upholds Company's Religious Accommodation For Jehovah's Witness

In Small v. Memphis Light, Gas & Water, (6th Cir., March 12, 2020), the U.S. 6th Circuit Court of Appeals affirmed the dismissal of an employment discrimination claim by a Jehovah's Witness. The court concluded that Memphis Light adequately accommodated their employee's religious beliefs when it allowed him to swap shifts with other employees. Judge Thapar filed a concurring opinion, criticizing the Supreme court's Hardison decision.

DOJ Gives Its Lawyers A Training Week On Religious Liberty

The New York Times reports today:

The Justice Department this week hosted training for its lawyers on religious liberty laws as part of Attorney General William P. Barr’s push to prioritize religious freedom cases, but the workshops prompted concern among some career lawyers that they were being educated on ways to blunt civil rights protections for gay and transgender people....

The training week was part of an ongoing campaign at the department to bolster ​its work to​ protect religious freedom, which is regularly described by top leaders as the first right protected by the First Amendment​, a department official said in response to a request for comment. ...

 A department spokesman said that the trainings were in no way meant to marginalize gay, lesbian and transgender people or to promote discrimination in any way, and that nothing in the materials presented did so.

Vanita Gupta, the president of the Leadership Conference on Civil and Human Rights and the former head of the Justice Department’s Civil Rights Division, accused Mr. Barr of using the Justice Department to promote his religious beliefs.

“In speeches and statements, he says that civil society is being undermined by a move away from religiosity,” she said. “He wants to use civil rights statutes and the D.O.J. to redeem what he views as the corrupted soul of America.”

President Calls For Day of Prayer For Protection and Strength

In a Tweet issued yesterday President Donald Trump said:

It is my great honor to declare Sunday March 15 as a National Day of Prayer. We are a Country that, throughout our history, looked to God for protection and strength in times like these. No matter where you may be, I encourage you to turn towards prayer in an act of faith. Together we will easily PREVAIL!

However, no formal Presidential Proclamation on the day of prayer appears on the White House website. Fox News reports on the President's statement.

New Website On Law, Religion and COVID-19

A new website-- Religion, Law and COVID-19 Emergency has been created by a group of faculty at the University of Bari (Italy). Here is their description of the coverage they seek to include:

The health emergency caused by the contagious virus Covid-19 is having many consequences also on religious rules – more broadly for the difficulties raising from the possible contradiction between the respect for the measures taken by civil authorities and religious rules. International law allows for the limitation˝ of the right to religious freedom on the grounds of protection of public health, and we are witnessing a situation of unprecedented restrictions on the global scale. As scholars engaged in the study of the legal regulation of the religious phenomenon, we have wanted to create a space to collect documents, comments and other useful materials related to the emergency, in order to assess the outcomes of the normative choices made by civil and religious authorities.

Some Louisville Religious Leaders Question Governor's Call For Halt To Services To Combat Coronavirus

In order to slow the spread of COVID-19, officials in various parts of the United States, as well as in a number of other countries, have encouraged or required cancellation of gatherings of large numbers of persons.  These have often specifically included a call for cancellation of religious services.  For the most part, churches and synagogues have cooperated with these government requests. However, the reaction yesterday of some religious leaders in Louisville, Kentucky to a request (full text) by Governor Andy Beshear raises in a new context a possible clash between government mandated health measures and religious rights.  The Louisville Courier Journal reports:

... [T]he request has caused confusion for congregations citywide, with some seeing it as an affront to their religions.

"Places that at one time seemed safe and sacred are now being called out as viral threats," the Interdenominational Ministerial Coalition said in a statement Wednesday. "The sanctity of church is needed during this uncertain time."....

The Rev. Stephen Smith adamantly said Portland Memorial Missionary Baptist Church will not cancel services for its 800 members. "You're not closing grocery stores, you're not closing gas stations, so no — we're not closing anything," Smith said.... 

"If we tried to shut the [Lenten] fish fry down we'd have a protest in the street," Smith said. "These people are going to come and get their fish; they're not thinking about a virus."...

... [T]he Archdiocese of Louisville.... issued a statement saying that it would not call for a cancellation of daily or weekend Masses.

"The Sunday celebration of the Eucharist is at the center of the life of the Church," the statement read. "Perhaps especially in difficult times, liturgical gatherings are a source of comfort and hope for the faithful, as well as an opportunity to offer our prayers to God for those who are suffering or who cannot be with us."

"At the same time, it is important – especially for those who are ill, feel vulnerable, or feel afraid – to be able to exercise individual discretion in light of this situation."

Christian Evangelists May Move Ahead With Part of Their Challenges To Restrictions On Them At City Festival

In O'Connell v. City of New Bern, North Carolina, (ED NC, March 10, 2020), a North Carolina federal district court allowed two Christian evangelists to move ahead with certain of their claims of unconstitutional treatment at the city's Mumfest-- an annual fall festival held in the historic downtown district.  The court held that the city did not infringe plaintiffs' 1st Amendment rights in barring them from carrying a nine-foot tall cross, using a loud megaphone to proselytize, or distributing literature, all in violation of city ordinances. The court did however allow plaintiffs to move ahead with their free speech and free exercise challenges to an officer moving them from the roadway to the sidewalk and placing a beeping firetruck and then a beeping utility cart between them and festival attendees who had gathered in the intersection.  The court said in part:

Defendant Conway testified that he ... placed a beeping cart in between plaintiffs and festival attendees because people were “getting aggravated” and “becoming aggressive” towards plaintiffs’ group.... Defendant Conway testified that individuals waived a rainbow flag in plaintiff O’Connell’s face and yelled at him.... In the past, individuals threw Mountain Dew bottles at plaintiff O’Connell, threatened plaintiff O’Connell with violence, and assaulted the police officers guarding plaintiff O’Connell....  Because “[l]isteners’ reaction to speech is not a content-neutral basis for regulation,” the court applies strict scrutiny to defendant Conway’s decision to order plaintiffs to the sidewalk and place a beeping cart between them and festival attendees in 2015.

Court Upholds $1.8M Award For Religiously Hostile Work Environment

In EEOC v. United Health Programs of America, Inc., (ED NY, March 6, 2020), a New York federal district court, in a 74-page opinion, upheld a jury verdict, as subsequently reduced by the court to $1.778 million, in a suit charging an employer with creation of a hostile religious work environment. The court said in part:

In the fall of 2007, defendants’ CEO, Robert Hodes, hired his aunt, Denali Jordan, who introduced religious and spiritual practices and teachings to the workplace. Defendants’ supervisors and officers, including Denali, imposed certain practices and beliefs, often referred to as “Onionhead” and “Harnessing Happiness,” on plaintiffs.....

[A]mple evidence in the record established that numerous religious images and practices permeated the office environment, and that employees were required to participate in such religious practices. Among other things, defendants’ office environment was cluttered with pervasive religious imagery, including rosary beads, Buddhas, and Onionhead/Harnessing Happiness literature, posters and banners; employees were given Onionhead feeling and truth cards and Onionhead workshop materials and instructed to use them; employees were strongly encouraged or instructed to wear Onionhead pins; employees were scheduled for attendance and participation at the Onionhead/Harnessing Happiness workshops, which employees understood were mandatory. ... [T]he Onionhead religion motivated certain idiosyncratic office practices, including the dismantling of overhead lights, use of candles, incense, and table lamps, hugging and kissing of coworkers, praying and meditation, and coworkers being directed to say “I love you.” All of these practices, taken together,could be found to have “unreasonably interfere[d] with an employee’s work performance” and altered the conditions of an employee’s work environment for the worse.

Missouri's Vaccination Exemption Form Not Motivated By Religious Hostility

In G.B. v. Crossroads Academy, (WD MO, March 2, 2020), a Missouri federal district court rejected the claim that the Missouri Department of Health and Senior Services was motivated by religious hostility when it adopted the exemption Form that parents must complete in order to obtain a religious exemption for their children from the state's vaccination requirement.  The Form includes a message from the Department encouraging vaccination to protect school children.

Court Interprets Defenses Under Illinois RFRA and Right of Conscience Act

In Rojas v. Martell, (IL App., March 6, 2020), an Illinois state appellate court answered four certified questions on the state's  Health Care Right of Conscience Act and its Religious Freedom Restoration Act. The court held that neither the analytic framework not the reasonable accommodation defense of Title VII should be read into these state statutes. It also concluded that transfer of an employee to a job that does not include the religiously objectionable duties may be permissible under the Right of Conscience Act. The issues arose in a case in which a county health department nurse claimed that the health department discriminated against her after she asserted that her Catholic religious beliefs prevented her from providing birth control, from providing Plan B emergency contraception, and from making abortion referrals.

Catholic Order May Build School, Gift Shop and Barn

In Fraternité Notre Dame, Inc. v. County of McHenry, 2020 U.S. Dist. LEXIS 40030 (ND IL, March 2, 2020), an Illinois federal magistrate judge, after holding a public hearing, approved a settlement agreement that allows a conservative order of Catholic nuns to construct a barn-like building for wine making, beer brewing, and canning, and to build a boarding school and a gift shop. In entering the settlement agreement, the parties stipulated that the county had violated the "substantial burden" provision of RLUIPA in denying an amended conditional use permit. The court's public hearing elicited comments both in favor of and opposed to the settlement agreement. The court said in part:

The historical religious bigotry Plaintiff has been subjected to provides a painful backdrop to this case. Plaintiff, its members, and the Property have been subjected to repeated acts of religious bigotry. The Property has been vandalized and desecrated in the most vile ways. Plaintiff's members have been threatened with lynching. And they have been placed in peril. For example, Plaintiff's vehicles have been vandalized in ways that affected the operation of the vehicles, including the loosening of lug nuts and the severing of brake fluid lines. Because of these criminal acts, Plaintiff installed fencing and cameras to protect its members and the Property.

Stunningly, a community member then staked out Plaintiff's property for hours upon hours, taking photographs of the fencing and cameras, all to prove his point that Plaintiff and its members were not "inviting." ...

Lots of people were willing to share their opinions regarding how Plaintiff should use its Property. But none of those opinions considered the legal requirements of RLUIPA.

Chicago Tribune reports on the decision.

Recent Articles of Interest

From SSRN:

• Laura Underkuffler, Should the Religious Be Exempt? Questions of Justice, Character, and the Maintenance of Norms, (Criminal Justice Ethics, Volume 37, 2018 - Issue 1).
• John Witte & Justin Latterell, The Last American Establishment: Massachusetts, 1780-1833, (Carl H. Esbeck and Jonathan Den Hartog, eds., Religious Dissent and Disestablishment: Church-State Relations in the New American States, 1776-1833 (University of Missouri Press, 2019)).
• Linda C. McClain, Bigotry, Civility, and Reinvigorating Civic Education: Government's Formative Task Amidst Polarization, (John Witte, Jr. et al., eds, The Role of Law in Character Formation, Moral Education, and the Communication of Values in Late Modern Pluralistic Societies (Leipzig: EVA Publishers, 2020, Forthcoming).
• Linda C. McClain, Response to Commentaries on Who's the Bigot?, (Boston University Law Review, Vol. 99, No. 2713, 2020).
• Ashutosh A. Bhagwat, Crossing Doctrines: Conflating Standing and the Merits Under the Establishment Clause, (Washington University Law Review, Forthcoming).
• Samuel D. Brunson, God Is My Roommate? Tax Exemptions for Parsonages Yesterday, Today, and (if Constitutional) Tomorrow, (February 11, 2020).
• Dov Fox, The Legal Challenge of Abortion Stigma and Government Restrictions on Medical Practice, (Hastings Center Report, March 2020).
• Kent Greenfield, Trademarks, Hate Speech, and Solving a Puzzle of Viewpoint Bias, (Supreme Court Review, 2019, Forthcoming).
• Sefa Ozalp, et. al., Antisemitism on Twitter: Collective Efficacy and the Role of Community Organisations in Challenging Online Hate Speech. (Social Media and Society (2019).

From SSRN (Non-U.S. Law):

• Neha Tripathi, Female Genital Mutilation: A Humanistic Approach, (January 28, 2020).
• Juan Pablo Perez Leon Acevedo & Thiago Felipe Alves Pinto, Enforcing Freedom of Religion or Belief in Cases Involving Attacks Against Buildings Dedicated to Religion: The Al Mahdi Case at the International Criminal Court, (Berkeley Journal of International Law (BJIL), Vol. 37, No. 3, 2020).
• Santiago Legarre, Germán José Bidart Campos (1927–2004), (Law and the Christian Tradition in Latin America: Biographies (London, Routledge, 2020, Rafael Domingo and Matthew Mirow eds.).
• Husam Suleiman, Implementation and Advancement of a Collaborative Zakat Management System in Southern California, the United States; A Case Study of a Hybrid Zakat Cooperative Model, (October 4, 2018).
• Saqib Jawad, Anglicization of Islāmic Law in the Sub-Continent and Its Impact on the Legal System of Pakistan, (Ulūm-e-Islāmia Vol. No.26, Issue No. 02, 2019).