5th Circuit Upholds Part of TRO Issued Against Texas COVID-19 Abortion Ban

As previously reported, on April 7, the US. 5th Circuit Court of Appeals permitted Texas Gov. Gregg Abbott's COVID-19 related ban on elective abortions to go into effect. After additional skirmishing that led to a new temporary restraining order by the district court, on April 9 in In re Abbott, the 5th Circuit by a 2-1 vote upheld the TRO insofar as it permitted abortions for patients who would be past the 22-week limit for abortions by April 22, but otherwise stayed the TRO pending consideration of the case by the 5th Circuit.  Judge Dennis dissented saying he would not have stayed any part of the district court's TRO.  AP reports on these developments.

Court Allows Drive-In Church Services For Easter In Kentucky; In-Person Attendees Face Quarantine

In On Fire Christian Center, Inc. v. Fischer, (WD KY, April 11. 2020), a Kentucky federal district court issued a temporary restraining order barring the city of Louisville from enforcing a COVID-19 related ban on drive-in Easter services that were planned by a Louisville church. The court began its opinion as follows:

On Holy Thursday, an American mayor criminalized the communal celebration of Easter.

That sentence is one that this Court never expected to see outside the pages of a dystopian novel, or perhaps the pages of The Onion. But two days ago, citing the need for social distancing during the current pandemic, Louisville’s Mayor Greg Fischer ordered Christians not to attend Sunday services, even if they remained in their cars to worship – and even though it’s Easter.

The Mayor’s decision is stunning.

And it is, “beyond all reason,” unconstitutional.

The court explained in part:

Here, Louisville has targeted religious worship by prohibiting drive-in church services, while not prohibiting a multitude of other non-religious drive-ins and drive-throughs – including, for example, drive-through liquor stores. Moreover, Louisville has not prohibited parking in parking lots more broadly – including, again, the parking lots of liquor stores. When Louisville prohibits religious activity while permitting non-religious activities, its choice “must undergo the most rigorous of scrutiny.”That scrutiny requires Louisville to prove its interest is “compelling” and its regulation is “narrowly tailored to advance that interest.”

The day before the decision was issued, Kentucky's attorney general issued a Statement (full text) saying in part:

We are aware that some Kentucky jurisdictions are discussing a prohibition of drive-in church services for the upcoming Easter holiday.  As long as religious groups and worshippers are complying with current Centers for Disease Control (“CDC”) recommendations for social distancing to slow the spread of COVID-19, we see no problem with these drive-in services occurring.

Religious organizations should not be treated any differently than other entities that are simultaneously conducting drive-through operations, while also abiding by social distancing policies....

This leniency does not, however, extend to in-person church services. As reported by WHAS News, Kentucky's governor says that anyone attending mass gatherings, including church services, this weekend, will be required to be quarantined for 14 days. Gov. Andy Beshear said the state record license plates those attending such gatherings and will give the information to local health departments who will then order quarantines.

UPDATE: On April 21, the Louisville Courier Journal reported:

On Fire Christian Church has reached an agreement with Louisville Mayor Greg Fischer and city officials to continue to hold drive-in services while abiding by social distancing guidelines set forth by the Centers for Disease Control and Prevention.

5th Circuit: Texas Elective Abortion Ban During COVID-19 Emergency Is Upheld

In In re Greg Abbott, (5th Cir., April 7, 2020), the U.S. 5th Circuit Court of Appeals issued a writ of mandamus that allowed the portion of Governor Greg Abbott's COVID-19 emergency order limiting elective abortion procedures to go into effect. All abortions other than those medically necessary to preserve the life or health of the mother are banned in order to preserve medical resources and limit the spread of coronavirus. Relying on the Supreme Court's 1905 decision in Jacobson v. Massachusetts, the court said in part:

The bottom line is this: when faced with a society-threatening epidemic, a state may implement emergency measures that curtail constitutional rights so long as the measures have at least some “real or substantial relation” to the public health crisis and are not “beyond all question, a plain, palpable invasion of rights secured by the fundamental law.” ... Courts may ask whether the state’s emergency measures lack basic exceptions for “extreme cases,” and whether the measures are pretextual—that is, arbitrary or oppressive.... At the same time, however, courts may not second-guess the wisdom or efficacy of the measures....

Properly understood, GA-09 merely postpones certain non-essential abortions, an emergency measure that does not plainly violate Casey in the context of an escalating public health crisis.... Respondents will have the opportunity to show at the upcoming preliminary injunction hearing that certain applications of GA-09 may constitute an undue burden under Casey, if they prove that, “beyond question,” GA-09’s burdens outweigh its benefits in those situations.

Judge Dennis filed a dissenting opinion. Texas Tribune reports on the decision.

Suit Challenges Student Government's Refusal To Fund Speech By Religious Figure

Suit was filed last week in a Georgia federal district court against officials at Georgia Tech after a Students for Life chapter was denied student activity fee funds to sponsor a talk by Dr. Martin Luther King's niece, Alveda King.  Student government denied funding because Ms. King has been involved in religious ministries and the religious aspects of her life could not be separated from the event which was to focus on civil rights and abortion. The complaint (full text) in Students for Life at Georgia Tech v. Regents of the University System of Georgia, (ND GA, filed 4/1/2020) alleges free speech violations (compelled speech and viewpoint discrimination), as well as due process and equal protection violations.  ADF issued a press release announcing the filing of the lawsuit.

Australia's Top Court Reverses Sex Abuse Convictions of Cardinal George Pell

In Pell v. The Queen, (High Ct. Australia, April 7, 2020), Australia's highest court reversed the sex abuse convictions of Cardinal George Pell, finding:

there is "a significant possibility that an innocent person has been convicted because the evidence did not establish guilt to the requisite standard of proof."

The court ordered that judgments of acquittal be entered for Pell. the Court issued a press release summarizing the opinion. Pell, who at the time of the alleged offenses served as Archbishop of Melbourne, later become Vatican's Prefect of the Secretariat of the Economy and is the highest-ranking Catholic official to be accused of sex abuse. CNN and New York Times report on the court's decision. Pell released this statement after the Court's decision was handed down. [Thanks to Tom Rutledge and Scott Mange for the lead.]

1st Circuit OKs "So Help Me God" In Naturalization Oath

In Perrier-Bilbo v. United States, (1st Cir., April 3, 2020), the U.S. 1st Circuit Court of Appeals rejected constitutional challenges to the inclusion of "so help me God" at the end of the oath of allegiance administered at naturalization ceremonies. Plaintiff, a French citizen, was offered the options of just not repeating those words during the ceremony or of having a private ceremony where the oath would be administered without that phrase. She rejected these as inadequate.

The court denied plaintiff's Establishment Clause challenge, applying the test used by the Supreme Court in American Legion v. American Humanist Association, saying in part:

We follow the Supreme Court's most recent framework and apply American Legion's presumption of constitutionality to the phrase "so help me God" in the naturalization oath because we consider the inclusion of similar words to be a ceremonial, longstanding practice as an optional means of completing an oath. And because the record does not demonstrate a discriminatory intent in maintaining those words in the oath or "deliberate disrespect" by the inclusion of the words, Perrier-Bilbo cannot overcome the presumption.

Rejecting Plaintiff's Free Exercise claim, the court said in part:

We do not second-guess the sincerity of Perrier-Bilbo's beliefs or her feeling of distress upon hearing the phrase at issue. But even if the phrase offends her, offense "does not equate to coercion," Town of Greece, 572 U.S. at 589, and the Free Exercise Clause does not entitle her to a change in the oath's language as it pertains to others....

The court rejected Plaintiff's argument under RFRA, saying in part:

While she might find the options offered by the Government subjectively burdensome, however, the district court was right to conclude that not every imposition or inconvenience rises to the level of a "substantial burden."

The court also rejected equal protection and due process challenges.  Judge Barron filed a concurring opinion. Free Thinker blog discussed the decision.

SBA Says Churches and Other Religious Organizations Are Now Eligible For SBA Loans

On April 3, the Small Business Administration announced that faith-based organizations, including houses of worship, are eligible to receive SBA loans regardless of whether they provide secular social services. (FAQ Document) (Press Release).  This applies both to the Paycheck Protection Program designed to keep small business workers employed, and to the Economic Injury Disaster Loan Program which provides small businesses and non-profits working capital. The FAQ Document says in part:

...[N]o otherwise eligible organization will be disqualified from receiving a loan because of the religious nature, religious identity, or religious speech of the organization. The requirements in certain SBA regulations— 13 C.F.R. §§ 120.110(k) and 123.301(g)—impermissibly exclude some religious entities. Because those regulations bar the participation of a class of potential recipients based solely on their religious status, SBA will decline to enforce these subsections and will propose amendments to conform those regulations to the Constitution. Although 13 C.F.R. § 120.110(a) states that nonprofit entities are ineligible for SBA business loans (which includes the PPP program), the CARES Act explicitly makes nonprofit entities eligible for the PPP program and it does so without regard to whether nonprofit entities provide secular social services.

Supreme Court Denies Review In Bus Ad Case

The U.S. Supreme Court today denied certiorari in Archdiocese of Washington v. Washington Metropolitan Transit Authority, (Docket No. 18-1455, cert. denied 4/6/2020).  (Order List [scroll to end]).  In the case, the D.C. Circuit Court of Appeals rejected challenges to the WMATA's guidelines which preclude the sale of advertising space on public buses for issue-oriented advertising, including political, religious and advocacy ads.  The ban includes ads "that promote or oppose any religion, religious practice or belief."  The Catholic Archdiocese of Washington wished to purchase space on the exterior of buses for its Christmas season "Find the Perfect Gift" ad. (See prior posting.) The Circuit denied en banc review, over a dissents in an opinion written by Judge Griffith. (See prior posting.)

Justice Kavanaugh was part of the panel that heard the original arguments in the case in the D.C. Circuit, so he recused himself from considering the petition for review.  While the Supreme Court denied review, Justice Gorsuch joined by Justice Thomas filed a statement saying in part:

Because the full Court is unable to hear this case, it makes a poor candidate for our review. But for that complication, however, our intervention and a reversal would be warranted for reasons admirably explained by Judge Griffith in his dissent below and by Judge Hardiman in an opinion for the Third Circuit....

... [T]he government may minimize religious speech incidentally by reasonably limiting a forum like bus advertisement space to subjects where religious views are unlikely or rare. But once the government allows a subject to be discussed, it cannot silence religious views on that topic.... So the government may designate a forum for art or music, but it cannot then forbid discussion of Michelangelo’s David or Handel’s Messiah. And once the government declares Christmas open for commentary, it can hardly turn around and mute religious speech on a subject that so naturally invites it.

Recent Articles of Interest

From SSRN:

• Nicholas Aroney, Federalism: A Legal, Political and Religious Archeology,(March 6, 2020).
• Kyle Velte, Errant Exceptionalism, (March 6, 2020).
• Sabah Mofidi, Religion and Political Culture in Eastern Kurdistan, (Journal of Middle Eastern Research 2 (2019) 45-65).
• Anne Levesque, Assessing Litigation Strategies by Government Respondents to Human Rights Complaints, (Canadian Journal of Human Rights, Forthcoming).
• Dr. Ahmad Shaikh, Study of the Honour Killing in India Within the Boundaries of the Indian Constitution, (March 8, 2020).
• Steven Jacobs, The Future of Roe v. Wade: Have Recent Developments Robbed Roe of its Original Justification?, (March 7, 2020).
• Michael Boucai, Before Loving: The Lost Origins of the Right to Marry, (Utah Law Review, Vol. 2020, No. 1, 2020).
• Shadrack Bentil, Polymorphous Discrimination: Rohingya Women in the Goggles of Intersectionality, (February 22, 2020).

From SmartCILP:

• Lucien J. Dhooge, A Case Law Survey of the Impact of RLUIPA on Land Use Regulation, [Abstract], 102 Marquette Law Review 985-1044 (2019).
• Allan W. Vestal. "No person . . . shall ever be molested on account of his mode of worship or religious sentiments. . . .": the Northwest Ordinance of 1787 and Strader v. Graham, 102 Marquette Law Review 1087-1159 (2019).

Factional Dispute In Israelite House of David Is Dismissed

In Ferrel v. Israelite House of David, (MI App., April 2, 2020), a Michigan appellate court upheld a trial court's dismissal on ecclesiastical abstention and standing grounds a suit by a former member of the Israelite House of David against the two individuals who claimed to be among a handful of members of a religious organization whose history traced back over 100 years.  Plaintiff had surrendered his membership in a settlement agreement with the organization in 2013. According to the court:

Plaintiff stated that he is “perhaps . . . the only person who is a true believer in the religion of IHOD with the capacity to manage the assets to advance its religious purpose.” He alleged that “he may be the only party standing between continuation of IHOD doctrine and Defendant’s theft and destruction of the religion for personal gain.” On the basis of these allegations, plaintiff sought relief in various forms, including a declaratory judgment that defendants “have improperly and unlawfully diverted IHOD from its stated mission....

In affirming the dismissal of the case, the court said in part:

The trial court did not err by ruling that resolution of plaintiff’s claims would require a decision on matters of church doctrine and polity. Plaintiff argues that his complaint did not seek resolution of any religious issues but concerned a dispute about real estate. This statement is belied by an examination of plaintiff’s amended complaint.... Plaintiff maintained that, with the exception of William Robertson, who was elderly and may have suffered from dementia, “there are no proper members of IHOD.” Plaintiff further alleged that, unlike defendants, he was a true believer and “should be allowed to reestablish his membership as the only person committed to maintain the faith.”... 

The damages that plaintiff alleged are spiritual in nature.... [P]laintiff alleged that he was “deprived of the means and mechanisms necessary for the free exercise of his chosen religion,” “prevented from participating in the central tenet and goal of the religion—the ingathering of the flock of God,” and “deprived of the means to spread the gospel to others.” He also alleged that he has suffered “extreme emotional distress from the loss of the means to practice his religion and the specter of being deprived of salvation.”

5th Circuit Clarifies Test For Prior Restraints In Limited Public Forums

In Freedom From Religion Foundation, Inc. v. Abbott, (5th Cir., April 3, 2020), the U.S. 5th Circuit Court of Appeals remanded to the district court a lawsuit by Freedom From Religion Foundation which was denied the right to display its "Bill of Rights Nativity Scene" in the Texas State Capitol building.  The court rejected Texas' sovereign immunity defense and held that under the Ex part Young exception an injunction barring future conduct could be issued. However, it said, under the 11th Amendment the district court cannot grant retrospective relief. It went on:

Among out sister circuits, however, “there is broad agreement that, even in limited and nonpublic forums, investing governmental officials with boundless discretion over access to the forum violates the First Amendment.” ...

[W]e hold that prior restraints on speech in limited public forums must contain neutral criteria sufficient to prevent (1) censorship that is unreasonable in light of the purpose served by the forum and (2) viewpoint-based censorship. Because the district court only considered whether the public purpose criteria at issue in this case was reasonable, we REVERSE and REMAND for the district court to apply the correct unbridled discretion analysis in the first instance.

New Jersey's COVID-19 Ban Enforced Against Religious Life-Cycle Events

Philadelphia Inquirer yesterday published this report on enforcement in Lakewood, New Jersey of the state's COVID-19 ban on large gatherings:

Fifteen men were charged with violating Gov. Phil Murphy’s ban on large gatherings during the coronavirus crisis after they attended an Orthodox Jewish funeral Wednesday in Lakewood, the Ocean County Prosecutor’s Office said Thursday.

The gathering was one of several in Lakewood in recent weeks in which police were called to break up large groups of people. Other events included a bat mitzvah over the weekend; four separate weddings in which four people who hosted them were charged with a disorderly person offense or with maintaining a nuisance; and a gathering of about 25 young men at a school in which the headmaster was charged with maintaining a nuisance.

Michigan Will Allow Secular Marriage Celebrants

In an April 2 press release, the Center for Inquiry reports:

Secular celebrants are now permitted to officiate and solemnize marriages in Michigan, after the state attorney general reversed the government’s opposition to a lawsuit brought by the Center for Inquiry (CFI). Promising that the state considers CFI-trained and certified Secular Celebrants to be covered by existing statutes regarding marriage solemnization, the presiding federal court brought the case to a close.

New Jersey's Aid In Dying Act Is Upheld

In Petro v. Grewal, (NJ Super., April 1, 2020), a New Jersey state trial court dismissed a suit challenging the constitutionality of New Jersey's Medical Aid in Dying for the Terminally Ill Act.  Plaintiffs challenged the law on numerous grounds, including under the free exercise clause. First the court held that plaintiffs lack standing to challenge the law, saying in part:

Their deeply felt religious, ethical or professional objections to the Act do not suffice to establish standing, even under New Jersey's liberal standard.

The court however went on to also reject plaintiffs' claims on the merits. In part of its opinion, the court rejected plaintiffs' free exercise objections to the obligation of a doctor who refuses to provide aid in dying to transfer health care records to a patient's new doctor. The court said that the law is a neutral law of general applicability, and that the obligation to transfer records is "minimally burdensome."  North Jersey.com reports on the decision.

Interesting RFRA Case Involving Proof of Infant's Citizenship

Sabra v. Pompeo, (D DC, April 2, 2020), is an unusual RFRA case.  Mohammed Sabra and his wife Ponn Sabra are United States Citizens.  Here are Mrs. Sabra's claims, as recounted by the court:

In September 2018, Mrs. Sabra moved from the United States to Gaza with her three daughters because her two eldest daughters attend college there.... After arriving in Gaza, Mrs. Sabra discovered that she was pregnant with Baby M....  Mrs. Sabra decided to stay in Gaza to be close to Mr. Sabra’s family there....

In 2019, Baby M was born at home in Gaza just after intense bombing was going on in Gaza City.  In June 2019, Mrs Sabra contacted the U.S. embassy in Israel seeking an emergency appointment at the Erez Crossing to obtain a Counselor Report of Birth Abroad and a passport for Baby M.  The parents indicated that they needed to seek medical treatment for Baby M in the United States.  Because Mrs. Sabra was 46 years old, the consulate insisted on additional evidence establishing that she was in fact the baby's mother.  The embassy ultimately insisted on photos of Mrs. Sabra during her pregnancy and DNA testing of Baby M.  However the Sabra's, who are Muslim, objected:

... Mr. Sabra has a “strong religious hesitation” to DNA testing, whereas Mrs. Sabra has an “absolute religious objection” to the DNA testing of Baby M.... With respect to the photographs, Plaintiff’s counsel confirmed that there are two photographs of Mrs. Sabra during the pregnancy, but Mr. and Mrs. Sabra refuse to provide those photographs to the Embassy based on religious objections..... The basis ... is that the photographs are “very personal,” they were “taken in an intimate in-house setting with just the family,” and “for religious views, [they] should [not] be seen by anyone outside of the family ever.”

In an 87-page opinion that deals with a number of other issues as well, the court refused to dismiss plaintiffs' RFRA claims, saying in part:

There is a genuine dispute as to whether the Embassy’s request for the DNA testing and Mrs. Sabra’s pregnancy photographs served a compelling interest by the least restrictive means.

Court Dismisses Claims That Mormon Doctrines Are Fraudulent

In Gaddy v. Corporation of the President of the Church of Jesus Christ of Latter-Day Saints, (D UT, March 31, 2020), a Utah federal district court dismissed on 1st Amendment grounds a suit alleging fraud by the LDS Church.  In the suit, a former LDS Church member alleged that several basic teachings of the Church involve misrepresentations.  The court said in part:

Each of these alleged misrepresentations directly implicates the Church’s core beliefs. Because a statement’s falsity is an essential element of fraud claims, adjudicating these claims would require the court to do exactly what the Supreme Court has forbidden—evaluate the truth or falsity of the Church’s religious beliefs. This court can no more determine whether Joseph Smith saw God and Jesus Christ or translated with God’s help gold plates or ancient Egyptian documents, than it can opine on whether Jesus Christ walked on water or Muhammed communed with the archangel Gabriel. The First Amendment prohibits these kinds of inquiries in courts of law.

Courthouse News Service reports on the decision.

Challenge To School Bible Program Is Dismissed After Program Is Terminated

In Freedom From Religion Foundation, Inc. v. Mercer County Board of Education, (SD WV. March 31, 2020), a West Virginia federal district court in a 25-page opinion dismissed as moot a suit to enjoin Mercer County's Bible in the Schools program.  The Board terminated the 70-year old program after litigation challenging it had continued for two years.

Courts Grapple With State Abortion Bans In COVID-19 Responses

As previously reported, Texas and Ohio have included abortions as non-essential medical procedures which are banned to preserve resources for treatment of COVID-19 patients. Alabama has also imposed a similar ban. Wall Street Journal reports that district court judges in each of those states have blocked the bans. However yesterday in In re Abbott, (5th Cir., March 31, 2020), the U.S. 5th Circuit Court of Appeals in a 2-1 decision temporarily stayed the Texas federal district court's injunction, allowing the ban on abortions to remain, at least for the time being. The state however was directed to file an initial response by 8:00 a.m. today.

Suit Challenges Colorado Stay-At-Home Order Partly On Free Exercise Grounds

A suit was filed on Monday by a pro se plaintiff in a Colorado federal district court seeking a preliminary injunction to bar enforcement of the COVID-19 stay-at-home orders issued by the state and local officials.  The complaint (full text) in Lawrence v. State of Colorado, (D CO, filed 3/30/2020) alleges in part:

As a result of the Orders listed above that restrict the gathering of more than ten people at a time, the plaintiff's parish has ceased conducting weekly Mass, has ceased offering the Eucharist, and has ceased hearing confessions. The defendants' conduct has impaired the plaintiff's ability to freely exercise his religious faith, in violation of the First Amendment.

Colorado Politics reports on the lawsuit.

7th Circuit Upholds Prison Rule Limiting Off-Bunk Prayers

In Larry v. Goldsmith, (7th Cir., March 30, 2020), the U.S. 7th Circuit Court of Appeals upheld as reasonably related to a legitimate penological interest a prison rule that prohibits inmates from praying off their bunks after 9:00 pm. The policy was challenged by a Muslim inmate who was disciplined for praying next to his bunk at a prohibited time.