Court Upholds Maryland Hate Crime Statute

In Lipp v. State of Maryland, (MD Ct. Special Appeals, April 30, 2020), a Maryland state appellate court upheld the constitutionality of a Maryland statute which outlawed the destruction of property where there is evidence of animosity toward a group because of race, religious belief, sexual orientation, gender, disability, national origin or homelessness. Defendant had been convicted of spraying anti-Semitic, anti-Black and anti-gay graffiti on a school building.  Rejecting defendant's constitutional arguments, the court said in part:

Appellant may have had a First Amendment right to spray paint on his own property the offensive words and symbols used here. Once he combined that action with a criminal act, however, in this case defacing property of another, his criminal activity was not protected by the First Amendment.

Chabad's Messianist Movement Loses Battle Over Control of Synagogue Space

In a dispute that has been litigated since 2004, a New York state trial court in
Agudas Chasidei Chabad of the United States v. Congregation Lubavitch, Inc., (Civil Ct. City of NY, April 28, 2020), ruled that the formal owners of the headquarters of the Chabad movement in the United States may eject from its buildings a faction of the movement that has conducted religious services in the basement of the headquarters building for over 25 years. In its 144-page opinion, the court, relying on neutral principles of civil law rather than religious doctrine, gave a victory to the portion of the movement that rejects claims that the late rebbe, Menachem Mendel Schneerson who died in 1994, should be referred to as the Messiah. The court said in part:

Rebbe Menchem Mendel Schneerson determined the power and authority granted to the owners of these properties, not this Court. His intentions and only his intentions were made clear by granting full authority to the owners, through Boards of Trustees, not the congregants or the Gabboim, over the religious corporation’s real property and personal property. This Court has the legal obligation to enforce the bylaws, religious corporation law and subsequent amendments to their contents. Just as the congregants had no legal rights to challenge the decision of the Board of Trustees to demolish a church, the congregation and the Gabboim have no legal rights to continue in possession after the Board of Trustees granted authorization tocommence these legal proceedings to recover possession of the subject premises by proper board action.

Anash.org reports on the decision.

California Emergency Orders Upheld Against Free Exercise Challenge

In Gish v. Newsom, (CDCA, April 23, 2020), a California federal district court refused to issue a temporary restraining order against state-wide and county-wide COVID-19 Orders in a suit brought by a group of pastors in the Inland Empire region of southern California. (See prior posting.) Plaintiffs sought an injunction to prevent enforcement of the COVID-19 Orders against Plaintiffs’ engagement in religious services, practices, or activities at which social distancing guidelines of the CDC are followed. In rejecting Plaintiffs' constitutional challenges to the Orders, the court said in part:

When responding to the COVID-19 pandemic ... Defendants “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.’...

Plaintiffs argue that the Orders are underinclusive of secular activities that may also contribute to the spread of COVID-19 because they allow grocery stores, fast food restaurants, and marijuana dispensaries to remain open.... But these are all essential services: without access to the food and medicines sold at these locations, more citizens would become ill or die.... If the state applies the same rules to in-person religious gatherings ... people will get sick and die from attending religious gatherings just as they are dying from working in grocery stores....

Because the Orders are facially neutral and generally applicable, they are subject to rational basis review..... And they easily survive rational basis....

Companies Enter Consent Decree In EEOC Suit Challenging Head-Covering Policy

The EEOC announced yesterday the entry of a consent decree under which the Memphis (TN)- based Versant Supply Chain, Inc. and the Dallas(TX)-based AT&T Services, Inc. have agreed to pay $150,000 to victims of religious discrimination. The companies had enforced policies that prohibit employees from wearing any head coverings (except knit caps). It refused to make accommodations for religious head coverings such as hijabs. The companies also agreed to make policy changes.

USCIRF Issues 2020 Report On International Religious Freedom

The U.S. Commission on International Religious Freedom yesterday released its 2020 Annual Report (full text) on the status of religious liberty in various countries around the world. Among other developments, USCIRF notes "remarkable progress in Sudan and a sharp downward turn in India."  A press release accompanying release of the Report summarizes its key findings, saying in part:

USCIRF recommends 14 countries to the State Department for designation as “countries of particular concern” (CPCs) because their governments engage in or tolerate “systematic, ongoing, egregious violations.” These include nine that the State Department designated as CPCs in December 2019—Burma, China, Eritrea, Iran, North Korea, Pakistan, Saudi Arabia, Tajikistan, and Turkmenistan—as well as five others—India, Nigeria, Russia, Syria, and Vietnam.

... [USCIRF] also recommends 15 countries for placement on the State Department’s Special Watch List (SWL) for severe violations. These include four that the State Department placed on that list in December 2019—Cuba, Nicaragua, Sudan, and Uzbekistan—as well as 11 others—Afghanistan, Algeria, Azerbaijan, Bahrain, Central African Republic (CAR), Egypt, Indonesia, Iraq, Kazakhstan, Malaysia, and Turkey....

The 2020 Annual Report further recommends to the State Department six non-state actors for designation as “entities of particular concern” (EPCs) for systematic, ongoing, egregious violations. These consist of five groups that the State Department designated in December 2019—al-Shabaab in Somalia, Boko Haram in Nigeria, the Houthis in Yemen, Islamic State in Khorasan Province (ISKP) in Afghanistan, and the Taliban in Afghanistan—plus one other—Hay’at Tahrir al-Sham (HTS) in Syria.

The 104-page report also makes various policy recommendations to the Administration and to Congress.

Attorney General Warns Against COVID-19 Orders That Violate Civil Rights

Attorney General William Barr yesterday issued a Memorandum to the Assistant Attorney General for Civil Rights and to all U.S. Attorneys, titled Balancing Public Safety With the Preservation of Civil Rights. The memo calls for U.S. Attorneys to be on the lookout for state and local COVID-19 orders that infringe constitutional rights and civil liberties. The memo reads in part:

... [E]ven in times of emergency, when reasonable and temporary restrictions are placed on rights, the First Amendment and federal statutory law prohibit discrimination against religious institutions and religious believers. The legal restrictions on state and local authority are not limited to discrimination against religious institutions and religious believers. For example, the Constitution also forbids, in certain circumstances, discrimination against disfavored speech and undue interference with the national economy. If a state or local ordinance crosses the line from an appropriate exercise of authority to stop the spread of COVID19 into an overbearing infringement of constitutional and statutory protections, the Department of Justice may have an obligation to address that overreach in federal court.

Liberty Counsel issued a press release announcing the Memorandum.

Study Shows Extent of COVID-19 Restrictions On Religious Services

Pew Research Center yesterday released a study of the extent to which each state has created religious exemptions to COVID-19 distancing orders. The study concludes that ten states prevent all in-person religious gatherings. Sixteen states allow religious gatherings, with no limit on their size. Some of these states have categorized religious worship as an "essential" service. Twenty-one states and D.C. allow religious gatherings of only ten or fewer people. Three states have other kinds of limits.

Church Sues Virginia Governor Over 10-Person Gathering Limit

Suit was filed last week in a Virginia federal district court seeking to enjoin state officials from enforcing COVID-19 related limits on gatherings of more than ten people against Lighthouse Fellowship Church. The 50-page complaint (full text) in Lighthouse Fellowship Church v. Northam, (ED VA, filed 4/24/2020), asks in part:

That the Court issue a Temporary Restraining Order restraining ... Governor Northam [and] all Commonwealth officers ... from enforcing ... the GATHERING ORDERS ... to the extent any such order prohibits religious worship services at Lighthouse, or in-person church services at Lighthouse if Lighthouse meets the social distancing, enhanced sanitization, and personal hygiene guidelines pursuant to which the Commonwealth allows so-called “essential” commercial and non-religious entities (e.g., beer, wine, and liquor stores, warehouse clubs, ‘big box” and ‘supercenter’ stores) to accommodate gatherings of persons without numerical limit.... Lighthouse merely seeks a TRO preventing Lighthouse,its pastor, and its members from being subject to criminal sanctions for having more than 10 people at its worship service on Sunday....

Eastern Shore Post reports on the lawsuit.

Recent Articles of Interest

From SSRN:

• Abner S. Greene, Liberalism and the Distinctiveness of Religious Belief, (Forthcoming, 35 Constitutional Commentary (2020)).
• Suhrith Parthasarathy, An Equal Right to Freedom of Religion: A Reading of the Supreme Court’s Judgment in the Sabarimala Case, (Forthcoming, Oxford Human Rights Hub Journal).
• Aaron J. Saiger, State Regulation of Curriculum in Private Religious Schools: A Constitutional Analysis, (in Yeshivas versus the State of New York: A Case Study in Religious Liberty in Education (Jay Greene & Jason Bedrick eds., Rowman & Littlefield) (forthcoming 2020)).
• Matthew Brown, Coronavirus and Church Closures: Will the COVID-19 Gathering Bans Survive Free Exercise Challenges?, (ConLawNOW (Forthcoming)).
• Ryan T. Anderson, On the Basis of Identity: Redefining ‘Sex’ in Civil Rights Law and Faulty Accounts of ‘Discrimination’, (Harvard Journal of Law and Public Policy, Vol. 43, No. 2, 2020).
• Dr. Muhammad Sohail & Ataullah Khan Mahmood, Islamic Criminal Jurisprudence on the Offence of Trafficking in Persons: An Interpretation of Fasad fil Arz and Hadd Offence, (December 31, 2019).
• Raymond H. Brescia, Bahareh Ansari & Hannah Hage, The Legal Needs of Nonprofits: An Empirical Study of Tax-Exempt Organizations and Their Access to Legal Services, (17 Hastings Race & Poverty Law Journal 451 (2020).

From SmartCILP and elsewhere:

• Andrew L., Seidel, Bad History, Bad Opinions: How “Law Offi ce History” is Leading the Courts Astray on School Board Prayer and the First Amendment, 12 Northeastern University Law Review 248-326 (2020).
• Eimi Priddis Yildirim, A Rhetorical Revolution: The Antithesis of the First Amendment, 33 BYU Journal of Public Law 287-319 (2019).
• Jeffrey A. Brauch & Cody Goings, E.S. v. Austria: The Folly of Europe, [Abstract], 5 Journal of Global Justice & Public Policy 83-105 (2019).
• Mark Tushnet, Trump v. Hawaii: "This President" and the National Security Constitution, [Abstract], 2018 Supreme Court Review 1-19.
• Pamela S. Karlan, Just Desserts?: Public Accommodations, Religious Accommodations, Racial Equality, and Gay Rights, [Abstract], 2018 Supreme Court Review 145-177.
• Melissa Murray, Inverting Animus: Masterpiece Cakeshop and the New Minorities, [Abstract], 2018 Supreme Court Review 257-297.

Settlement Reached With Kansas Churches Challenging COVID-19 Limits On Services

After two Baptist churches in Kansas obtained a temporary restraining order  against enforcement of a provision in Kansas Governor Laura Kelly's COVID-19 executive orders that ban religious assemblies of more than ten congregants (see prior posting), the governor has reached a settlement with the churches. Hutchinson News reports:

The proposed resolution to the lawsuit filed in U.S. District Court would allow congregations in Junction City and Dodge City to conduct in-person services if attendees complied with safety protocols. It also created a window for the governor to revise her mass-gathering order so it would no longer apply to religious meetings.

Court Says Drive-In Church Services Are Reasonable Compromise For COVID-19 Limits

In First Pentecostal Church of Holly Springs v. City of Holly Springs Mississippi, (ND MS, April 24, 2020), a Mississippi federal district court created guidelines on the extent to which states or localities can limit church services in efforts to prevent the spread of COVID-19. The suit was brought by a church whose indoor Easter service was dispersed by police. The court had previously had before it a widely publicized case from Greenville, MS in which a city sought to ban even drive-in church services. (See prior posting.) In deciding the Holly Springs case, the court said in part:

For reasons which should be obvious, this court is considerably less sympathetic to claims by a church which sought to hold indoor church services involving at least thirty-five congregants than it is to the claims by the church in the Greenville case, which sought to hold services in which the congregants stayed in their vehicles with the windows closed....

In its brief, the Church insists that its members practice “social distancing” during indoor church services, but this strikes this court as being a rather hollow guarantee, given the inherent difficulties involved in policing meetings behind closed doors and the inherent medical uncertainties with regard to what a safe Covid-19 distance actually is in the context of individuals who may be sitting together in the same room for an hour or more....

In the court’s view, allowing drive-in church services involving congregants sitting in vehicles whose windows are closed represents the practical middle ground upon which concerns about religious freedom and the safety of the community may co-exist....

At the same time, this court wishes to be clear that it does not regard the practice of “drive-in” church services as being risk-free. While it may be imagined that many attendees of such services would be family members who have already been exposed to each other, that will not always be the case. Indeed, it seems quite likely that, as with regular church services, many such attendees will be elderly parishioners who require the assistance of friends or non-resident family members to take them to the service.... [T]he Covid-19 virus disproportionately kills elderly individuals, and it may therefore be assumed that, if the holding of such “drive-in” services becomes a nationwide trend, that a significant (and possibly large) number of deaths will result. This court believes that preachers and parishioners would be well advised to take this into consideration when deciding whether or not to hold or attend such services.

While this court therefore does not regard the public policy considerations in this context as being one-sided, the First Amendment right to Free Exercise of religion is sufficiently important that some reasonable accommodations must be made for it. This court concludes that the allowing of drive-in services, with windows closed or slightly cracked open, represents a reasonable accommodation in this context, and it finds a reasonable likelihood ... that allowing such drive-in services is legally required, under either state or federal law.

Negligent Violation of Inmate's Religious Dietary Needs Did Not Violate 1st Amendment

In Mbonyunkiza v. Beasley, (8th Cir., April 24, 2020), the U.S. 8th Circuit Court of Appeals held:

absent evidence that an underlying prison regulation or policy violates the Free Exercise Clause, evidence that a correction official negligently failed to comply with an inmate’s sincerely held religious dietary beliefs does not establish a Free Exercise Clause claim under §1983.

In the case, a Muslim inmate claimed that four times in 257 days, prison kitchen staff served him meals containing pork products. In rejecting plaintiff's claim, the court said in part:

[T]he Supreme Court’s cases, and all the Eighth Circuit Free Exercise decisions our research has uncovered, have involved claims alleging that a statute, or a regulation or policy implementing a statute, unconstitutionally prohibited a sincerely held religious belief or otherwise unduly burdened the free exercise of religion.

By contrast, in this case NCF’s food policies affirmatively accommodate the beliefs of inmates who do not eat pork for religious reasons. Mbonyunkiza does not challenge those policies. Rather, his Supplemental Complaint asserts that defendants are liable in damages because they did not properly implement those policies on certain occasions.

President Trump Issues Message of Good Wishes As Ramadan Begins

The Muslim holy month of Ramadan began yesterday. President Trump issued a message (full text) wishing all Muslims in the U.S. and around the world a blessed and peaceful Ramadan. The message said in part:

Over the past months, we have seen how important the power of prayer can be during challenging times.  Today, as the holy month of Ramadan commences, I pray that those who are observing this sacred time find comfort and reassurance in their faith.

7th Circuit Dismisses Satanist's Challenge To Bigamy, Adultery and Fornication Laws

In Mayle v. State of Illinois, (7th Cir., April 23, 2020), the U.S. 7th Circuit Court of Appeals affirmed the lower court's dismissal a Satanist's challenge to Illinois' laws prohibiting bigamy, adultery, and fornication. The court said in part:

The court correctly dismissed Mayle’s challenge to Illinois’s bigamy laws on preclusion grounds, having already rejected a nearly identical challenge in his earlier federal suit.... Here the parties and issues in the bigamy challenge were identical. Likewise, the court correctly dismissed Mayle’s challenges to Illinois’s adultery and fornication laws for lack of standing. Those laws no longer are enforced, so Mayle could not show a reasonable fear of prosecution....

Atheist Firefighter's Hostile Work Environment Claim Can Proceed

In Queen v. City of Bowling Green, Kentucky, (6th Cir., April 22, 2020), the U.S. 6th Circuit Court of Appeals affirmed a Kentucky district court's denial of defendants' qualified immunity in a suit by a former firefighter who was harassed by his co-workers and supervisors because he is an atheist. The court held that plaintiff's claim of  hostile work environment based on religion is not covered by Kentucky’s Claims Against Local Governments Act. It also held that plaintiff's supervisor is not entitled to qualified immunity on a retaliation claim against him. Friendly Atheist blog discusses the case at greater length.

8th Circuit Upholds Arkansas COVID-19 Ban On Surgical Abortions

In In re Rutledge, (8th Cir., April 22, 2020), the U.S. 8th Circuit Court of Appeals issued a writ of mandamus ordering an Arkansas federal district court to dissolve its temporary restraining order that had invalidated the Governor's COVID-19 related ban on surgical abortions as part of a ban on non-medically necessary surgeries. The appeals court said in part:

Here, the ADH directive, pursuant to the Governor’s Executive Order, was issued in response to the impact of the COVID-19 pandemic in Arkansas. Accordingly, even assuming, arguendo, that the district court correctly interpreted the directive to be an outright ban on all pre-viability surgical abortions in Arkansas, the directive is not subject to constitutional challenge unless it “has no real or substantial relation to” the public health crisis, or “is, beyond all question, a plain, palpable invasion of” a woman’s right to elective abortion. Jacobson, 197 U.S. at 31.... Aside from summarily stating that its conclusion is consistent with Jacobson, the district court failed to apply that requisite framework and, thus, abused its discretion.

Daily Item reports on the decision.

Dioceses In Bankruptcy Challenge Ban On Access To COVID-19 Loans

Catholic News Agency reported yesterday that the Catholic dioceses of Rochester and Buffalo in New York filed suit on April 15 against the U.S. Small Business Administration challenging  denial of access to emergency loans under the recently enacted Paycheck Protection Program.

The $349 billion in emergency loans were part of the Coronavirus Aid, Relief, and Economic Security (CARES) Act, signed into law by President Trump on March 27.

The bill provided, among other things, short-term relief for small businesses and certain non-profits affected by the disruptions from the coronavirus (COVID-19) pandemic....

An SBA rule, however, stipulated that the funds would not go to bankruptcy debtors. Both the dioceses of Rochester and Buffalo have filed for bankruptcy in the past several months, after being named in hundreds of clergy sex abuse lawsuits filed under New York’ Child Victims Protection Act.

Another Suit Challenges Kentucky Ban On In-Person Church Services

A class-action lawsuit was filed last week in a Kentucky federal district court by three individuals who attended in-person Easter Sunday services at Maryville Baptist Church in Hillview, Kentucky. The in-person services violated Governor Andy Beshear's COVID-19 ban on mass gatherings.  State troopers placed notices on all cars in the church parking lot imposing a 14-day quarantine on those associated with the vehicle attending the service and others in their household. The complaint (full text) in Roberts v. Neace, (ED KY, filed 4/14/2020) alleges a violation of plaintiffs' free exercise rights, alleging in part:

Defendants’ prohibition of any in person church services, in the name of fighting Covid-19, is not generally applicable. There are numerous exceptions to the March 19, 2020 Order, such as an exception for factories, or attending establishments like shopping malls, where far more people come into closer contact with less oversight.

The suit also challenges the governor's travel ban. WTVQ News reports on the lawsuit. A different Kentucky federal district court has refused to restrain enforcement of the ban on mass gatherings. (See prior posting.)

Israeli Court Awards Damages To LGBT Group that Was Refused Service

In a case reminiscent of many pending in the United States, a Magistrate's Court in the Israeli city of Beersheba has awarded damages equivalent to $14,000 plus attorneys' fees in a suit against Rainbow Color, a shop that refused to print posters for a gay rights organization at Ben Gurion University. Times of Israel yesterday reported in part:

“We do not deal with abomination materials. We are Jews!” the shop had said in response to the chapter’s request for an estimate on the posters.

Aguda argued that Rainbow Color had violated the Prohibition of Discrimination in Products, Services and Entry into Places of Entertainment and Public Places Law Act passed by the Knesset in 2000.

Rainbow Color claimed that its owners, who are religious, are barred from providing assistance to offenders of religious law. In its defense, the owners added the rulings of two Orthodox rabbis who wrote that according to Jewish law the publication of such posters is prohibited.

However the judge ruled:

When their beliefs conflict with a necessity of providing service to all in a public space, the last value holds superior.

Navy Chaplains Given One More Chance To Refile Discrimination Claims

Arnold v. Secretary of the Navy, (D DC, April 21, 2020) is the latest installment in long-running litigation against the U.S. Navy by a group of non-liturgical Protestant chaplains who claim that the Navy discriminated against them.  In a 2018 opinion (which is currently on appeal to the D.C. Circuit), the chaplains' broad challenges to Navy chaplain selection board policies and procedures were rejected, but the court allowed plaintiffs to file a new complaints-- which are at issue here-- claiming discrete instances of individual discrimination, retaliation and constructive discharge. Many of these claims were dismissed under the doctrine of res judicata. The court reluctantly concluded that plaintiffs, with limitations, can file new complaints raising those individual claims. The court said in part:

As demonstrated by this very case, plaintiffs and their counsel persist in filing repetitive and duplicative complaints despite having received lengthy decisions outlining precisely why their systemic challenges fail....

Based on plaintiffs’ actions thus far and their insistence that repetitious filings and forum shopping are mandatory to vindicate their interests, the Court deems it surpassingly likely that absent a pre-filing injunction, the refiling of any surviving claims will almost certainly be broadened to include challenges to the Navy’s selection board policies and procedures that have already been resolved by this Court—in the 2018 opinion and again today.... Consequently, the Court concludes that a narrowly tailored prospective filing restriction is necessary.

The Court will sever the surviving retaliation, constructive discharge, and interference with religious free speech claims. And it will permit plaintiffs to refile those ad hoc claims in this Court or any other appropriate district Court, in individual complaints (not joined with any other plaintiff). However, any plaintiff who wishes to refile his or her claims in any federal court must first seek leave from this Court within thirty days, that is, by not later than May 21, 2020.