Supreme Court Says Druze Immigrant Can Appeal Factual Findings Under Convention Against Torture

Yesterday the U.S. Supreme Court ruled that factual findings relating to relief under the Convention Against Torture can be appealed from the Board of Immigration Appeals to the federal circuit courts. In Nasrallah v. Barr, (Sup. Ct., June 1, 2020), a member of the Druze religion claimed he would likely be tortured by Hezbollah if he returned to Lebanon. In a 7-2 decision, in an opinion written by Justice Kavanaugh, the Court said in part:

It would be easy enough for Congress to preclude judicial review of factual challenges to CAT orders, just as Congress has precluded judicial review of factual challenges to certain final orders of removal. But Congress has not done so, and it is not the proper role of the courts to rewrite the laws passed by Congress and signed by the President.

Justices Thomas and Gorsuch dissented. The Hill reports on the decision.

Recent Articles of Interest

From SSRN:

• Timothy Alan Campbell, Law’s Religious Awakening: Cincinnati’s Bible War, the Concept of Religious Neutrality, and Its Role Today , (Belmont Law Review, vol. 7, issue 2, pp. 47-85 (2020)).
• Andrew Seidel, Bad History, Bad Opinions: How ‘Law Office History’ Is Leading the Courts Astray on School Board Prayer and the First Amendment, (Northeastern University Law Review, Vol. 12, No. 1, 2020).
• Anita Koirala, Hindu Concept of Law, (April 30, 2020).
• Margaret Ryznar, Extending the Charitable Deduction Beyond the Covid-19 Pandemic, (Tax Notes Federal, Vol. 167, No. 3, pp. 463-464, April 20, 2020).

From SmartCILP:

• Festschrift: In Honor of Arthur J. Jacobson. Preface by Michael Pantazakos; introductory remarks by Richard H. Weisberg; introduction by Melanie Leslie; articles by Arthur J. Jacobson, Tvsi Blanchard, J. David Bleich, Mauro Bussani, George P. Fletcher, Otto Pfersmann, Monroe Price, Uriel Procaccia, Andraa Sajo, Bernhard Schlink, Jeanne L. Schroeder, Suzanne Last Stone, Paul Verkuil. 40 Cardozo Law Review 3047-3320 (2019). (Abstract).

Church's RLUIPA Zoning Claim Rejected

In New Harvest Christian Fellowship v. City of Salinas, (ND CA, May 29, 2020), a California federal district court rejected a church's claim that the City of Salinas, California's zoning code violates its rights under RLUIPA. In order to stimulate pedestrian friendly commercial activity, the zoning code bans clubs, lodges, places of religious assembly, and similar assembly uses on the ground floor of buildings facing three blocks of Main Street. The city refused to grant zoning amendments to allow the church to use a building it purchased for worship services. The court concluded that the zoning restrictions did not violate either the substantial burden or the equal terms provisions of RLUIPA, saying in part:

New Harvest has not presented any evidence to counter the City’s evidence of feasible alternative locations....

New Harvest’s own evidence establishes that [four theaters permitted in the area] ..., unlike New Harvest, offer numerous activities throughout the week that would reasonably be expected to attract the general public, such as first run films, weddings, concerts, comedy shows, and other events. By contrast, New Harvest offers no evidence that its activities actually draw any non-members, and no evidence that its activities have a positive impact on commercial activity or vibrancy within the Main Street restricted area.

Court Refuses To Order Vermont To Extend Dual Enrollment Program To Catholic School

In A.M. v. French, (D VT, May 29, 2020), a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program (DEP) that pays for high schoolers to take college courses. The court observed that while those administering DEP advised plaintiffs that religious parochial schools are ineligible to participate, this was an inaccurate characterization.  Instead, DEP is open to students enrolled in public schools, in private schools where a district without a public high school pays tuition, or students who are home schooled. In a prior decision, the Vermont Supreme Court held that the program allowing districts without public high schools to pay tuition to private schools violates the Vermont constitution only when the district reimburses tuition for a religious school and does not impose adequate safeguards to prevent the use of the funds for religious worship. In light of this, the federal district court said in part:

The DEP's plain text does not impose classifications or disparate treatment based on religion. Indeed, the statutory scheme does not even mention religion.... [A] home study student receiving a religious education from his or her parents may take religious education classes at a postsecondary institution with a religious affiliation provided the home study student can satisfy the DEP Eligibility Requirements. A publicly funded high school student at an approved independent school with a religious affiliation may do the same....

Because qualified independent religious schools are not categorically excluded from the DEP and face no additional burdens not imposed on secular approved independent schools, the DEP Eligibility Requirements are neutral as applied to religion. Plaintiffs have therefore not demonstrated a violation of their constitutional rights giving rise to irreparable harm.

TRO Denied In Church's Challenge To Delaware COVID-19 Order

In Bullock v. Carney, (D DE, May 29, 2020), a Delaware federal district court refused to issue a temporary restraining order to the pastor of Canaan Baptist Church who objected to Delaware Governor John Carney's COVID-19 restrictions on worship services. The court refused the TRO in part because the governor's restrictions had been liberalized by a May 23 order. Additionally the court said:

... Dr. Bullock's counsel argued that his client would be irreparably harmed as a result of three restrictions imposed by the May 23rd Guidance: (1) the requirement that preachers wear a mask while preaching; (2) the requirement that the pastor ( or anyone else) not hold a person during the course of the person's baptism; and (3) certain requirements that relate to the preparation and distribution of communion.... There is, however, no record evidence to support these assertions, and attorney argument cannot establish a showing of irreparable harm.

The court added:

[M]y decision today has no bearing on the merits of Dr. Bullock's claims. Those claims implicate one of our most treasured rights protected by the Constitution-the right to exercise freely one's religion. And they implicate as well the fundamental right of a state "to protect itself against an epidemic of disease which threatens the safety of its members.".... These important principles make this an important case, and my decision today will afford me the opportunity to give the case the considered reflection it deserves.

Delaware News Journal reports on the decision.

US Supreme Court, 5-4, Refuses To Enjoin California's Limits On Worship Services

On Friday night, by a vote of 5-4, the U.S. Supreme Court refused a church’s request to enjoin application to it of California’s COVID-19 restrictions that limit attendance at religious worship services to 25% of building capacity or 100 attendees.  In South Bay United Pentecostal Church v. Newsom, (US Sup. Ct., May 29, 2020), Justices Ginsburg, Breyer, Kagan, and Sotomayor voted to deny the injunction without writing an opinion. Chief Justice Roberts concurred in denying the injunction, filing a 2-page opinion explaining his vote. He said in part:

Although California’s guidelines place restrictions on places of worship, those restrictions appear consistent with the Free Exercise Clause of the First Amendment. Similar or more severe restrictions apply to comparable secular gatherings, including lectures, concerts, movie showings, spectator sports, and theatrical performances, where large groups of people gather in close proximity for extended periods of time. And the Order exempts or treats more leniently only dissimilar activities, such as operating grocery stores, banks, and laundromats, in which people neither congregate in large groups nor remain in close proximity for extended periods.

Justice Kavanaugh filed a 3-page dissenting opinion which was joined by Justices Thomas and Gorsuch, saying in part:

The Church and its congregants simply want to be treated equally to comparable secular businesses. California already trusts its residents and any number of businesses to adhere to proper social distancing and hygiene practices. The State cannot “assume the worst when people go to worship but assume the best when people go to work or go about the rest of their daily lives in permitted social settings”…

Justice Alito dissented without filing or joining an opinion.

Earlier in the day, the Court had issued a brief order similarly denying an injunction against Illinois restrictions on worship services, but here because the challenged Illinois restrictions had expired the day before.. Full text of order in Elim Romanian Church v. Pritzker, (US Sup. Ct., May 29, 2020). SCOTUSblog reports on the decisions.

DOJ Sues New Jersey Town Over Anti-Jewish Zoning Ordinances

Last week the Department of Justice filed suit against the Township of Jackson, New Jersey alleging that it has violated RLUIPA by using its zoning ordinances to target the Orthodox Jewish community.  The Township banned schools (including religious schools) in certain zoning districts and banned dormitories throughout the township so that boarding schools cannot operate.  The complaint (full text) in United States v. Township of Jackson, (D NJ, filed 5/20/2020), alleges in part:

The 2017 Ordinances were enacted in response to the growth of the Orthodox community and the complaints Township officials received from residents about the Orthodox community....

Hostility toward the Orthodox community by Township officials and residents in Jackson has continued since the enactments of Ordinances 03-17 and 04-17 to the present time.

The Department of Justice issued a press release announcing the filing of the lawsuit.

Congress Passes Uyghur Human Rights Policy Act

Congress yesterday gave final passage to the Uyghur Human Rights Policy Act of 2020 (full text). The bill now goes to the President for his signature. The bill addresses China's human rights violations targeted at Uyghurs, ethnic Kazakhs, Kyrgyz, and other Muslim minority groups in Xinjiang Uyghur Autonomous Region. It calls on the President and the State Department to take specific actions against China, including designating China as a country of particular concern under the International Religious Freedom Act. The bill also calls for various reports on the topic to be submitted to Congress and the imposition of sanctions on foreigners responsible for these human rights violations.

Italian Court Upholds Lease Of Historic Abbey to Conservative Catholic Group With American Ties

The Art Newspaper reports that in Italy in a decision published Monday, a 3-judge administrative court rejected an attempt by the Ministry of Culture to revoke a 19-year lease granted to a conservative Catholic organization, Dignitatis Humanae Institute (DHI), for an elaborate 13th century abbey. According to the report:

The lease was awarded as part of an initiative to involve the private sector in the management of abandoned cultural sites in Italy.

The judges concluded that the ministry had failed to act within the prescribed time limit for the annulment of public contracts. The verdict is an embarrassing defeat for the Italian ministry of culture which had argued that the time limit should not apply because the DHI made “false and mendacious” statements in its application for the lease, an allegation which the administrative judges say the ministry failed to provide evidence for.

DHI says that the case against it is politically motivated. DHI is funded by Donald Trump's controversial former chief strategist Steve Bannon. After the decision was released, Italy's Attorney General's Office said it would begin a criminal investigation of  DHI’s founder, Benjamin Harnwell. And the Ministry of Culture says it will appeal the administrative court's decision.

Family of 12 Challenges Virginia Restrictions On Worship Services Of Over Ten Persons

Suit was filed last week in a Virginia federal district court by a Catholic family of 12 challenging the provisions in Virginia Governor Ralph Northam's COVID-19 order that bars worship services with more than ten people. (The state is loosening these requirements in its reopening plan.) The complaint (full text) in Diaz-Bonilla v. Northam, (ED VA, filed 5/22/2020), alleges in part:

As a result of the Orders, the Diaz-Bonilla family is able to take their entire family of 12 to: restaurants to order food; any number of retail stores (such as Walmart and Target) that sell food or pharmaceuticals among a vast array of other items; electronics retailers; home improvement stores; lawn and equipment retailers, gas stations or convenience stores; pet stores;office supply stores; laundromats and dry cleaners; or even beer, wine, and liquor stores, if those businesses, deemed essential by the Governor’s order, adhere to certain social distancing requirements.

...However, under the Orders, the Diaz-Bonilla family cannot go to church or even invite a priest or fellow parishioner to their own home for religious purposes, no matter how strictly the family engages in social distancing and sanitization practices.

LifeSite News reports on the lawsuit.

Settlement In Suit Against Georgia City By Anti-Gay Preacher

In Georgia, the Athens-Clarke County Commission has agreed to pay $25,000 in settlement of a lawsuit brought by an anti-LGBT street preacher who was escorted out of the 2019 Athens Pride Festival by police officers. City Dope reported  yesterday on the settlement.  Preacher Adam Bishop was evicted from the festival when he shouted anti-gay rhetoric through a megaphone. The settlement of  Bishop's free exercise and free speech claims also includes a commitment to train police officers on how to treat expressive activity.

Churches Challenge Oregon's COVID-19 Limits

Suit was filed yesterday in an Oregon federal district court challenging Oregon Governor Katherine Brown's COVID-19 order that limits the size of worship services.  The complaint (full text) in Edgewater Christian Fellowship v. Brown, (D OR, filed 5/26/20), alleges in part:

1. In Douglas County Oregon, Pastor Miller may be jailed for going to church with twenty-five other people on a Sunday morning, but can join those same people and more at a dine-in restaurant for Sunday lunch with no penalty. This is irrational and unconstitutional.

2. Under Governor Brown’s Executive Order 20-25 (the “Religious Assembly Ban”) Oregonians in Josephine County may workout in a gym or participate in fitness classes in spaces up to max capacity with social distancing, but if they hold or attend a religious service with twenty-six people observing social distancing in the very same room (even one with capacity to seat over 1000) they are subject to a $1,250 fine and jail time of up to thirty days.

3. Under the Religious Assembly Ban, a church auditorium could host a gym class of any size with social distancing, but the same auditorium is limited to twenty-five people for church services.

ADF issued a press release announcing the filing of the lawsuit. (See prior related posting.)

Uyghur Rights Advocate Appointed To USCIRF

The U.S. Commission on International Religious Freedom issued a press release yesterday reading in part::

Speaker of the House of Representatives Nancy Pelosi (D-CA) announced the appointment of Nury Turkel, a lawyer and Uyghur rights advocate, to the U.S. Commission on International Religious Freedom (USCIRF)....

Turkel was born in a re-education camp [in China] at the height of the Cultural Revolution and spent the first several months of his life in captivity with his mother. He came to the United States in 1995 as a student and was granted asylum in 1997. He is the first U.S.-educated Uyghur lawyer.

Church Challenges Colorado's Limitation On Size Of Worship Services

9News reports that on Monday a church in Ault, Colorado filed suit against the governor and other state officials challenging public health orders that limit church gatherings to ten people:

High Plains Harvest Church ... filed the lawsuit Monday in district court and argues that the health order violates their first amendment right to freedom of religion. They also allege that it violates freedom of speech and their right to equal protection under the law.

The complaint alleges in part:

Today in Colorado it is perfectly legal for hundreds of shoppers to pack themselves cheek by jowl into a Lowe’s. But if 50 people meet to worship God in a small rural church, they do so at the risk of being fined and imprisoned.

UPDATE: On May 29, the U.S. Department of Justice filed a Statement of Interest in support of Plaintiffs (full text).

Nazi Symbols On 75-Year Old POW Gravestones In VA Cemeteries Raise Protests

Yesterday, bipartisan leadership of the House Veterans Affairs and Appropriations Committees wrote the Secretary of Veterans Affairs (full text of letter) demanding removal or alterations to the gravestones of three World War II German POW's in VA cemeteries.  According to the Military Times earlier this month:

At issue are three grave sites at two VA cemeteries: Fort Sam Houston National Cemetery in Texas and Fort Douglas Post Cemetery in Utah. Both were used to inter dozens of unclaimed remains of enemy troops following World War II.

While most of the foreign troops’ grave markers list only names and dates of death, the three in question are also engraved with with a swastika in the center of an iron cross and in inscription in German which reads “He died far from his home for the Führer, people and fatherland.”...

Veteran Affairs officials in a statement said the headstones date back to the 1940s. Army officials oversaw both cemeteries at the time and approved the inscriptions and inclusion of the swastika.

“The National Historic Preservation Act of 1966 assigns stewardship responsibilities to federal agencies, including VA and Army, to protect historic resources, including those that recognize divisive historical figures or events,” National Cemetery Administration spokesman Les' Melnyk said in response to questions about the graves.

“For this reason, VA will continue to preserve these headstones, like every past administration has.”

Military Religious Freedom Foundation which originally called attention to the gravestones has background and further information.

Church Sues Challenging Nevada's COVID-19 Limits On In-Person Services

Suit was filed last Friday in a Nevada federal district court challenging the constitutionality of Nevada Governor Steve Sisolak's COVID-19 Order that limits in person church services.  The complaint (full text) in Calvary Chapel Dayton Valley v. Sisolak, (D NV, filed 5/22/2020) alleges in part:

Instead of prioritizing religious freedom, the Governor has moved “non-essential” secular businesses and activities to the front of the line and pushed churches towards the back. Incredibly, the Governor has allowed restaurants and food establishments to resume in-person, onsite dining at 50% capacity, allowed all retail establishments to open at 50% capacity, and has thrown open the doors of nail care salons, hair salons, and barber shops—businesses that the Governor’s own orders say “promote extended periods of public interaction where the risk of [Covid-19] transmission is high.”...

Yet the Governor insists on maintaining the Church Gathering Ban, refusing to allow churches and places of worship to open their doors to ten or more people under any circumstance.

ADF issued a press release announcing the filing of the lawsuit.

Presidential Message On Eid al-Fitr

Yesterday was Eid al-Fitr. On Saturday the White House posted a Presidential Message (full text) sending greetings to Muslims in the United States and around the world as they celebrated the feast. the message reads in part:

Over the past weeks and months, as we have fought the coronavirus, we have relied on our faith, family, and friends to help guide us through these unprecedented times.  As Muslims observe the day of Eid al-Fitr, we hope they find both comfort and strength in the healing powers of prayer and devotion.

9th Circuit: Church Loses Challenge To California COVID-19 Order

In South Bay United Pentecostal Church v. Newsom, (9th Cir., May 22, 2020), the U.S. 9th Circuit Court of Appeals, in a 2-1 decision, refused to enjoin California's and San Diego County's COVID-19 orders as they apply to in-person religious services. The majority, in a brief opinion, said in part:

Where state action does not “infringe upon or restrict practices because of their religious motivation” and does not “in a selective manner impose burdens only on conduct motivated by religious belief,” it does not violate the First Amendment. See Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533, 543 (1993). We’re dealing here with a highly contagious and often fatal disease for which there presently is no known cure. In the words of Justice Robert Jackson, if a “[c]ourt does not temper its doctrinaire logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.” Terminiello v. City of Chicago, 337 U.S. 1, 37 (1949) (Jackson, J., dissenting).

Judge Collins filed a lengthy dissent, saying in part:

By explicitly and categorically assigning all in-person “religious services” to a future Phase 3—without any express regard to the number of attendees, the size of the space, or the safety protocols followed in such services -- the State’s Reopening Plan undeniably “discriminate[s] on its face” against “religious conduct.”...

Even if the Reopening Plan were not facially discriminatory, it would still fail Lukumi’s additional requirement that the restrictions be “of general applicability.” 508 U.S. at 531.

Under California’s approach—in which an individual can leave the home only for the enumerated purposes specified by the State—these categories of authorized activities provide the operative rules that govern one’s conduct. While the resulting highly reticulated patchwork of designated activities and accompanying guidelines may make sense from a public health standpoint, there is no denying that this amalgam of rules is the very antithesis of a “generally applicable” prohibition. The State is continually making judgments, at the margins, to decide what additional activities its residents may and may not engage in, and thus far, “religious services” have not made the cut. I am at a loss to understand how the State’s current maze of regulations can be deemed “generally applicable.”

ABC News reports on the decision. The church filed an emergency application for an injunction (full text) with the U.S. Supreme Court.

Recent Articles of Interest

From SSRN:

• Mark Storslee, Church Taxes and the Original Understanding of the Establishment Clause, (169 University of Pennsylvania Law Review, Forthcoming).
• Nadia Ahmad, Recognizing the Role of Religion in Environmental Legal Norms, (32 St. Thomas Law Review 24 (symposium) (2020)).
• Richard Moon, Conscience in the Image of Religion, (J. Adenitire ed., Religious Beliefs and Conscientious Exemptions in a Liberal State (Hart, 2019)).
• Engy Abdelkader, Immigration in the Era of Trump: Jarring Social, Political, and Legal Realities, (44 N.Y.U. Review of Law & Social Change - The Harbinger, 2020).
• Abdurrachman Satrio, LGBT Rights and the Constitutional Court: Protecting Rights Without Recognizing Them?, (Oxford University Press, Forthcoming).
• David L. Hudson & Gene Policinski, Essay: Understanding First Amendment Freedoms Through The Remarkable Life Of “The Greatest” – Muhammad Ali, (Creighton Law Review, Vol. 53, No. 2, 2020).

From SmartCILP:

• Elizabeth M. Donovan, Catholic Social Teaching and Neo-abolitionism: earing down The House of the Rising Sun, 67 Cleveland State Law Review 321-350 (2019).
• Symposium--The Way Forward: Gender, LGBTQIA Rights and Religious Liberties. Ruth Bader Ginsburg Lecture by Chai R. Feldblum; Hon.paula Rosenstein, moderator; Jocelyn Samuels, Alan Brownstein, Maimon Schwarzschild, panelists; articles by Julie A. Greenberg, Mattheus Stephens, Pamuela Halliwell. 41 Thomas Jefferson Law Review 163-237 (2019).

5th Circuit Enjoins Enforcement of City's COVID-19 Order Against Church Pending Appeal

Five days after a Mississippi federal district court, in an opinion critical of plaintiff's position, refused to rule immediately on an attempt by a Holly Springs church to hold indoor church services (see prior posting), the U.S. 5th Circuit Court of Appeals in First Pentecostal Church of Holly Springs v. City of Holly Springs, Mississippi, (5th Cir., May 22, 2020), granted an injunction pending appeal of enforcement of the city's COVID-19 Orders against the church. However the grant came with conditions, reflecting what appears to be ongoing animosity between the church and city officials, and somewhat competing Orders by the state and the city. In granting the injunction, the court said in part:

We do this upon the assurances by the Church that it will “satisf[y] the requirements entitling similarly situated businesses and operations to reopen.” In this vein, we refer the Church to the Governor’s new “Safe Worship Guidelines for In-Person Worship Services,” which appear similarly rigorous to the City’s requirements for reopening businesses but are tailored to church operations. These guidelines, if implemented in the spirit of the City’s orders, may help the Church abide by its safety pledge during this intervening period while the district court considers the injunction request and while the City continues the ongoing process of evaluating and revising its orders related to COVID-19.

In a concurring opinion, Judge Willett added considerable background:

The First Pentecostal Church of Holly Springs was burned to the ground earlier this week. Graffiti spray-painted in the church parking lot sneered, “Bet you Stay home Now YOU HYPOKRITS.”

The City mentions the church burning in its latest brief, but in a manner less commendable than condemnable. One might expect a city to express sympathy or outrage (or both) when a neighborhood house of worship is set ablaze. One would be mistaken. Rather than condemn the crime’s depravity, the City seized advantage, insisting that the Church’s First Amendment claim necessarily went up in smoke when the church did....

This argument is shameful.