Sunday, June 28, 2020

Court Allows Most of Abused Plaintiff's Claims Against Diocese To Proceed

In Doe v. Norwich Roman Catholic Diocesan Corp., 2020 Conn. Super. LEXIS 616 (CT Super. Ct., May 26, 2020), a Connecticut trial court refused to dismiss many of the allegations in a lawsuit alleging that a Catholic diocese acted negligently and recklessly in a manner leading to sexual abuse of the plaintiff by two Catholic priests between 1978 and 1988. According to the court:
The challenged allegations include the plaintiff's claims alleging the defendants' failure to immediately remove Charles Many or J. Lawrence Ouimet from their assigned roles, provide training and/or educational programs as it pertains to proper conduct toward parishioners, promulgate policies and rules proscribing priests from taking children into private rooms when the defendants knew or should have known that priests in the defendant Diocese had sexually assaulted children under such circumstances, develop and implement a program or policy with regard to the issue of improper sexual conduct, and police the activities of the priests, particularly Charles Many and J. Lawrence Ouimet, upon the premises that the defendants owned and controlled. 
... [T]the majority of the plaintiff's challenged allegations involve a factual inquiry and do not require an interpretation or weighing of a religious belief, doctrine or practice that is undertaken for religious reasons.... These allegations concern child sex abuse by a Catholic priest, and whether the Diocesan Corporation knew or should have known of the same, about which there would be no need for the court to evaluate the proprieties of scripture or religious teachings.
The court did dismiss a portion of the allegations which involve religious decisions or religion-based obligations.

Friday, June 26, 2020

New York Enjoined From Enforcing Stricter Limits Against Worship Services

In Soos v. Cuomo, (ND NY, June 26, 2020), a New York federal district court granted a preliminary injunction barring New York from enforcing COVID-19 orders that impose stricter limits on worship services than on other activities. The suit was brought by two Catholic priests and three Orthodox Jews.  The court said in part:
Assuming, without deciding, that the challenged laws are neutral, plaintiffs have demonstrated a likelihood of success on the merits with respect to their free exercise claim because it appears that the challenged laws are not generally applicable, and that they would fail strict scrutiny....
On its face, the 25% indoor capacity limitation applies only to houses of worship... Indeed, that limitation is the only one of its kind in the tangle of executive orders and the Guidance Document that have been issued in response to the pandemic; in other words, no other secular entity, save for those that remain closed in their entirety until Phase 4 or beyond, are limited to only 25% capacity. The “nonessential businesses,” dubbed “Phase 2 industries” by executive order, that enjoy a 50% capacity limitation are, however, not justifiably different than houses of worship.
The court enjoined the state:
(1) from enforcing any indoor gathering limitations against plaintiffs greater than imposed for Phase 2 industries, provided that plaintiffs follow social distancing requirements as set forth in the applicable executive orders and guidance; and
(2) from enforcing any limitation for outdoor gatherings provided that participants in such gatherings follow social distancing requirements as set forth in the applicable executive orders and guidance.
Thomas More Society issued a press release announcing the decision.

Suit Challenges Rollback of Health Care Anti-Discrimination Rule

Suit was filed today in a New York federal district court by two transgender women of color challenging the Department of Health and Human Services' recent rule revisions that roll back health care anti-discrimination coverage for gay and transgender individuals. The complaint (full text) in Walker v. Azar, (ED NY, filed 6/26/2020), alleges in part:
2. The 2020 Rule directly contravenes the Supreme Court of the United States’ recent holding in Bostock v. Clayton Cty., Georgia ... (June 15, 2020), that discrimination “on the basis of sex” includes, without reservation, discrimination based on an individual’s gender identity, including transgender status, or sexual orientation.
3. If allowed to take effect, the 2020 Rule will directly threaten the ability of members of the LGBTQ community to access medically necessary, potentially life-saving medical and health care by removing clear prohibitions against discrimination. And even if members of the LGBTQ community are able to access such health care, the 2020 Rule puts them at grave risk of inadequate care wrought with discrimination solely on account of their identities, which the 2020 Rule makes permissible.
Human Right Campaign issued a press release announcing the filing of the lawsuit and providing additional background.

Charter School May Not Exclude Vendor That Expresses Religious Views On Its Website

In Our Peculiar Family v. Inspire Charter Schools, (CD CA, June 23, 2020), a California federal district court refused to dismiss a free exercise challenge to the refusal by a publicly funded charter school to contract with an art instruction business because of the business' espousal of religious views on its website. The court said in part:
Defendants argue that their obligation to be “nonsectarian” in administering a school program required them to exclude any vendor that publicly espoused religious views.... Defendants are incorrect. Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017)....
Defendants’ policies here are even more preclusive than the unconstitutional policies in Trinity Lutheran. Not only do Defendants’ policies exclude all churches from providing services, they apparently preclude all services by any potential vendor with religious statements on their website. Defendants do not explain how institution of such a categorical requirement is in keeping with their obligation to facilitate “nonsectarian” services, nor do they offer facts to support that Plaintiffs’ application implicated Establishment Clause concerns. 

Thursday, June 25, 2020

Supreme Court Rejects Asylum Seeker's Challenge To Limits On Review Of Claims

The U.S. Supreme Court today in Department of Homeland Security v. Thuraissigiam, (US Sup. Ct., June 25, 2020) upheld against constitutional attack a provision in the immigration law that prevents applicants for asylum from appealing to federal courts through a habeas corpus petition an immigration judge's conclusion that the applicant lacks a "credible fear of persecution".  The court rejected arguments that the limitation violates the Constitutional ban on suspending habeas corpus and violates due process. Justices Breyer and Ginsburg concurrd, but would limit the holding to the facts of this case. Justices Sotomayor and Kagan dissented. NPR reports on the decision.

Executive Order Encourages State Cooperation With Faith-Based Child Welfare Agencies

President Trump yesterday signed an Executive Order (full text) on Strengthening the Child Welfare System. The Order encourages "close partnerships between State agencies and nongovernmental organizations, including public, private, faith-based, and community groups." (HHS press release).

Iowa Abortion Waiting Period Challenged On State Constitutional Grounds

Suit was filed this week in an Iowa state trial court challenging a provision enacted earlier this month requiring women seeking an abortion to first visit a health center to receive an ultrasound and specified information, and then wait at least 24 hours before returning to have an abortion.  The complaint (full text) in Planned Parenthood of the Heartland, Inc. v. Reynolds, (IA Dist. Ct., filed 6/23/2020) challenges the provision only on state constitutional grounds.  It focuses on the Iowa Constitution's single subject, due process, equal protection and inalienable rights provisions, and alleges in part:
The Amendment will be especially harmful during the current COVID-19 pandemic....
[B]y requiring an additional, medically unnecessary visit for abortion patients, despite the overwhelming consensus that providers should be reducing medically unnecessary medical visits during the pandemic, the Amendment puts patients and medical providers at increased risk of COVID-19 transmission....
By imposing a delay on abortion—a delay that the Legislature does not impose on any other medical procedure—the Amendment conveys that the Legislature believes women are not competent to make considered, appropriate medical decisions for themselves and their families, and must instead be forced by the state to reconsider their medical decisions....
[Thanks to Scott Mange for the lead.]

Courthouse News Service reports on the lawsuit.

Wednesday, June 24, 2020

Saudi Arabia Limits Hajj To Residents To Limit COVID Spread

Saudi Arabia's Ministry of Hajj and Umrah announced on Monday that because of COVID-19 the Hajj this year will be extremely limited, saying in part:
in light of the continuation of the pandemic and the risks of Coronavirus spreading in crowded spaces and large gatherings, and its transmission between countries,  and the increase in average infections globally, it has been decided that Hajj for this year (1441 H/ 2020 AD) will be held whereby a very limited number of pilgrims from various nationalities who already reside in Saudi Arabia, would be able to perform it.  This decision is taken to insure Hajj is performed in a safe manner from a public health perspective while observing all preventative measures and the necessary social distancing protocols....

Georgia Enacts Hate Crime Law

As reported by the Atlanta Journal Constitution, the Georgia legislature yesterday gave final passage (legislative history) to HB 426 (full text) which provides enhanced criminal penalties for assault, battery, theft and criminal trespass motivated by the victim's actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability.  The bill also provides for enhanced reporting of bias-motivated crimes. Gov. Brian Kemp says he will sign the bill.

Suit Challenges City's Ban On Religious Christmas Displays On Public Property

The Knights of Columbus filed suit in a Delaware federal district court yesterday challenging Rehoboth Beach's policy adopted in 2018 of allowing only secular Christmas displays at the city's Bandstand Circle. The complaint (full text) in Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, filed 6/23/2020), alleges that since the 1930's a nativity scene had been displayed there during the Christmas season. It contends that the city, in allowing private groups to still erect secular displays, but insisting that the K of C display be placed on private property, violates plaintiff's free speech, free exercise and equal protection rights. First Liberty Institute issued a press release announcing the filing of the lawsuit.

Tuesday, June 23, 2020

South Carolina Episcopal Parishes All Win Title To Their Property

In Protestant Episcopal Church in the Diocese of South Carolina v. The Episcopal Church, (SC Common Pleas, June 19, 2020), a South Carolina trial court was called upon to interpret a confusing decision by the South Carolina Supreme Court in a long-running property dispute that arose after a split in the Episcopal Church in South Carolina.  In a 2017 decision, the 5-member South Carolina Supreme Court in 5 separate opinions spanning 77 pages purported to resolve the factional property dispute. The trial court concluded that, under the state Supreme Court's decision, 36 parishes are the owners of their parish real estate and accompanying personal property. The court said in part:
This Court must distill the five separate opinions, identify the Court’s intent, and produce a logical directive. It must harmonize these opinions and find common ground among them. The issue is whether the 1979 Dennis Canon or any parish’s alleged accession to that Canon created a legally cognizable trust under South Carolina law....
At issue is ownership of real property, purchased and managed exclusively by the Plaintiff Parishes including land and buildings, considerable funds, and other personal property such as books, silver, and historical archives. The crux of the disagreement rests upon the Dennis Canon and its legal effect on whether this property was ever held in trust for TEC or TECSC....
This Court finds that the Plaintiffs merely promised allegiance to TEC and without more, this promise cannot deprive them of their ownership rights in their property. This Court finds no Parish expressly acceded to the 1979 Dennis Canon. The Dennis Canon was not mentioned by name in any of the evidence, and Defendants admitted that the Dennis Canon is not referenced in any of the deeds of parish property.... As a result, there is no trust created in favor of the Defendants, TEC and TECSC.
Christian Post reports on the decision.

Suit Challenges Roll-Back of Health Care Protections For Transgender Individuals

Suit was filed yesterday in the D.C. federal district court challenging the Trump Administration's recent rule change that rolled back health care anti-discrimination protection for transgender individuals. The complaint (full text) in Whitman-Walker Clinic, Inc. v. U.S. Department of Health and Human Services, (D DC, filed 6/22/2020) alleges in part:
[T]he Revised Rule imports broad and sweeping exemptions for discrimination based on personal religious or moral beliefs from the identified statutes in Section 1557 [of the Patient Protection and Affordable Care Act] and other statutes, including the Religious Freedom Restoration Act ... which Section 1557 does not reference. These exemptions invite individual health care providers, health care entities, and insurers across the country to opt out of treating patients, including many transgender patients, if they believe doing so would compromise their faith....
HHS’s attempt to create new religious exemptions in Section 1557 is contrary to law and endangers patients’ health in the name of advancing the religious beliefs of those who are entrusted with caring for them—a result sharply at odds with HHS’s stated mission to “enhance and protect the health and well-being of all Americans” and to “provid[e] for effective health and human services.”
 The Hill reports on the filing of the lawsuit.

DOJ Sues Virginia County Over Restrictions On Creating Muslim Cemetery

Last week, the U.S. Department of Justice filed a federal RLUIPA lawsuit against Stafford County, Virginia. The complaint (full text) in United States v. Stafford County, Virginia, (ED VA, filed 5/19/2020) alleges in part that the county has imposed:
restrictive zoning requirements that preclude the All Muslim Association of America ... from establishing an Islamic cemetery on land it owns, thereby impeding its religious practice of providing low-cost burial services to persons of the Islamic faith. The County’s actions constitute a substantial burden on the free exercise of the religion of the All Muslim Association, in violation of the  Religious Land Use and Institutionalized Persons Act of 2000....
The Justice Department issued a press release announcing the filing of the lawsuit.

Monday, June 22, 2020

Recent Articles of Interest

From SSRN:
From SSRN (Non-U.S. Law):
From SmartCILP:
  • Peter Manus, Justice Gorsuch's Crusade: The Inviolable Power of Religion, [Abstract], 28 Boston University Public Interest Law Journal 195-245 (2019).
  • Volume 4 Buddhism Law & Society pp. 1-196, 2018-2019.

Saturday, June 20, 2020

5th Circuit Dismisses Church's Challenge To COVID-19 Order As Moot

In Spell v. Edwards, (5th Cir., June 18, 2020), the U.S. 5th Circuit Court of Appeals dismissed as moot a constitutional challenge to Louisiana Governor John Bel Edwards' COVID-19 order that restricted in-person church services to ten congregants. On June 5, the Governor issued a new order allowing churches to operate at 50% of capacity. Judge Ho concurred, but said that a future case might turn out differently.  He said in part:
If protests are exempt from social distancing requirements, then worship must be too....
Such support for the protests reflects a commendable commitment to equality. But public officials cannot devalue people of faith while elevating certain protestors. That would offend the First Amendment—not to mention the principle of equality for which the protests stand.

Friday, June 19, 2020

Injunction and $1M Damages For False Use Of Kosher Certification Symbol

In Chicago Rabbinical Council v. Abdul Rehman Group, Inc., (ND IL, June 9, 2020), an Illinois federal district court awarded statutory damages of $1 million under the Lanham Trademark Act to the Chicago Rabbinical Council ("cRc") in its suit against a company that was without authority applying a cRc logo to its food products, falsely indicating that they had been approved as kosher.  The court also issued a broad injunction barring defendant from using the cRc logo in any way to mislead others into believing that its products were certified by cRc. Kosher Today reports on the decision.

Suit Challenges COVID-19 Closure of Jewish Overnight Camps

Suit was filed yesterday in a New York federal district court challenging New York COVID-19 orders that require Jewish overnight camps to remain closed this summer. The complaint (full text) in Association of Jewish Camp Operators v. Cuomo, (ND NY, filed 6/18/2020), alleges in part:
5. On June 12, 2020, Defendant announced that overnight camps would be closed for the summer of 2020 under his COVID-19 orders, without making any exceptions for Jewish overnight camps, notwithstanding that these overnight camps involve core religious exercise.
6. In contrast, Defendant has made a broad First Amendment exception from his COVID-19 orders for First Amendment activities that he favors. In particular, Defendant has created a de facto exemption from his COVID-19 orders for mass demonstrations ... even though these mass protests pose greater risks of the transmission of COVID-19 than do Jewish overnight camps.
7. Defendant also has allowed a wide array of similar, secular activities to remain open....
11. Defendant’s statewide closure of all Jewish overnight camps this summer violates Plaintiffs’ constitutional rights of the free exercise of religion and the fundamental rights of parents to control the religious education and upbringing of their children, guaranteed by the First and Fourteenth Amendments of the United States Constitution and Article III, § 3 of the New York Constitution. 
[Thanks to Steven H. Sholk for the lead.]

Ohio Passes Student Religious Liberties Act

The Ohio legislature yesterday gave final passage to the Student Religious Liberties Act (HB 164) (full text).  The bill now goes to the governor for his signature. The bill provides in part:
Sec. 3320.02. (A) A student enrolled in a public school may engage in religious expression before, during, and after school hours in the same manner and to the same extent that a student is permitted to engage in secular activities or expression before, during, and after school hours.
(B) A school district ... shall give the same access to school facilities to students who wish to conduct a meeting for the purpose of engaging in religious expression as is given to secular student groups, without regard to the content of a student's or group's expression.
Sec. 3320.03. No school district ... shall prohibit a student from engaging in religious expression in the completion of homework, artwork, or other written or oral assignments. Assignment grades and scores shall be calculated using ordinary academic standards of substance and relevance, including any legitimate pedagogical concerns, and shall not penalize or reward a student based on the religious content of a student's work.
Cleveland.com and BJC (Don Byrd) report on the legislature's action.

UPDATE: Governor DeWine signed the bill on June 19. (AP)

European Court Awards Damages To Widow Whose Inheritance Was Reduced Under Sharia Law

As previously reported, in 2018 the European Court of Human Rights held that Greece had violated Art. 14 of the European Convention on Human Rights which bans discrimination on the basis of religion when it insisted that Sharia law be applied to a wife's inheritance rights.  Sharia law resulted in her receiving only 25% of what she was bequeathed to under under a will left by her husband.  The court, however, left open the question of damages. Now in Sali v. Greece,  (ECHR, June 18, 2020), the Court held that Greece should taking steps to ensure that the wife retains her ownership of the property in Greece left to her by her husband. However if the government does not do this within a year, the Court held that Greece should compensate her for the value of the property lost, which amounts to a little over 41,000 Euros. She was also awarded 10,000 Euros for the suffering caused by the discrimination against her. Courthouse News Service reports on the decision. Three dissenting judges thought that the court should also have dealt with property in Turkey left to the wife.

Thursday, June 18, 2020

Notre Dame Launches Religious Liberty Clinic

Notre Dame Law School announced yesterday that it is creating the Notre Dame Religious Liberty Clinic.  Prof. Stephanie Barclay will head the new initiative.  She comes to Notre Dame from the faculty of Brigham Young University’s J. Reuben Clark Law School.