11th Circuit Strikes Down Conversion Therapy Ban

 In Otto v. City of Boca Raton, Florida, (11th Cir., Nov. 20, 2020), the U.S. 11th Circuit Court of Appeals, in a 2-1 decision, struck down city and county ordinances in Florida that ban therapists from engaging in counseling or therapy aimed at changing a minor’s sexual orientation, reducing a minor’s sexual or romantic attractions, or changing a minor’s gender identity or expression. Support to minors undergoing gender transition, however is permitted. The majority said in part:

We understand and appreciate that the therapy is highly controversial. But the First Amendment has no carveout for controversial speech. We hold that the challenged ordinances violate the First Amendment because they are content-based regulations of speech that cannot survive strict scrutiny...

This decision allows speech that many find concerning—even dangerous. But consider the alternative. If the speech restrictions in these ordinances can stand, then so can their inverse. Local communities could prevent therapists from validating a client’s same-sex attractions if the city council deemed that message harmful.... People have intense moral, religious, and spiritual views about these matters—on all sides. And that is exactly why the First Amendment does not allow communities to determine how their neighbors may be counseled about matters of sexual orientation or gender.

Judge Martin, dissenting, said in part:

The majority is correct to say this case implicates sensitive considerations about when and how government bodies may regulate speech. Instances in which a speech restriction is narrowly tailored to serve a compelling interest are deservedly rare. But they do exist.... I believe the Localities’ narrow regulation of a harmful medical practice affecting vulnerable minors falls within the narrow band of permissibility.

Palm Beach Post reports on the decision.

Court Says Church Trustees Had Authority To Remove Pastor

In Vaughn v. Faith Bible Church of Sudlersville, (MD App., Nov. 19, 2020), a Maryland state appellate court held that under the state's Religious Corporation Act, trustees of the church had the authority to remove its pastor. The court said in part:

Churches in Maryland formally organize as religious corporations and thus, the trustees, not the congregation, constitute the corporation....

Appellant ... argues that Shore Haven trustees lacked authority to terminate him because the firing of a church pastor is an ecclesiastical matter reserved to the church, not the trustees....

However, here, there was simply no evidence that the Board’s decision was based on disputes regarding religious doctrine, biblical interpretations or other ecclesiastical matters. As stated by appellee, “appellant’s personal behaviors, organizational shortcomings, inability to manage a breakdown in civility, and over-heated remarks about [a Shore Haven trustee] drove” the decision.

Suit Challenges DC's Refusal To Allow "Black Pre-Born Lives Matter" Mural on Street

Suit was filed this week in D.C. federal district court challenging the constitutionality of D.C.'s refusal to allow protesting groups to paint a mural reading "Black Pre-Born Lives Matter" on the street near a Planned Parenthood Clinic. It also barred the chalking of the same message. The complaint (full text) in Frederick Douglass Foundation, Inc. v. District of Columbia, (D DC, filed 11/18/2020) points out that murals reading "Black Lives Matter" and "Defund the Police" were permitted to be painted along other D.C. streets. Plaintiffs contend that this differential treatment violates their free speech, equal protection and free exercise rights.  ADF issued a press release announcing the filing of the lawsuit.

Oregon COVD-19 Limits On Parochial Schools Upheld

The Oregonian yesterday reported on federal district judge's ruling from the bench in Horizon Christian School v. State of Oregon, (D OR, Nov. 17, 2020) denying a preliminary injunction to three Christian schools challenging Gov. Kate Brown’s COVID-19 executive order that limits the schools to remote instruction. According to the report:

Attorney John Kaempf, representing Horizon Christian School, McMinnville Christian Academy and Life Christian School, had urged the judge to halt the governor’s executive order and allow the three schools to reopen with in-person classes and proper safeguards in place.

He argued that gathering communally is a tenet of Catholic education, and not allowing the schools to hold in-person religious classes violates their freedom of religion and expression....

U.S. District Judge Michael W. Mosman said he found it “utterly implausible,” that the governor’s motive behind her executive order was to shut down religious schools.

Previously the court had denied a temporary restraining order in the case. (See prior posting.)

10th Circuit Dismisses Objections To Attempted Search of Church

 In Aguilera v. City of Colorado Springs, (10th Cir., Nov. 18, 2020), the U.S. 10th Circuit Court of Appeals affirmed the dismissal of a civil rights claim brought by the High Priestess/ Property Manager of Green Faith Ministry who objected to an attempt by a police officer and fire marshals to inspect the ministry's building. Officers apparently suspected marijuana usage or occupancy standard violations. The court rejected plaintiff's complaint that one officer told her to "praise the Lord." The court said in part:

Aguilera’s amended complaint does not allege facts indicating that an objective observer would view Officer Vargason’s purpose in saying “Praise the Lord” as an official endorsement of religion.

The court also rejected plaintiff's free exercise claim, concluding:

Aguilera has failed to allege that any defendant burdened her exercise of religious beliefs or practices.

FBI Releases 2019 Hate Crime Statistics

This week, the FBI released its 2019 Hate Crime Statistics. According to the Report, of the 7,103 single-bias incidents, 19.9% of the offenses, and 21.4% of the incidents, were motivated by religious bias. Of the offenses motivated by religious bias:  60.3% were anti-Jewish; 13.3% percent were anti-Islamic (Muslim); 4.0% were anti-Catholic; 3.6% were anti-Other Christian; 3.0% were anti-Sikh; 2.8% were anti-Eastern Orthodox (Russian, Greek, Other); 2.5 percent were anti-multiple religions; 1.5% were anti-Protestant; 0.8% were anti-Mormon; 0.4% were anti-Hindu; 0.4% were anti-Jehovah’s Witness; 0.4% were anti-Atheism/Agnosticism; 0.3% were anti-Buddhist. The prior year's report showed 20.2% of the offenses motivated by religious bias. (See prior posting.) ADL issued a press release commenting on the Report, as did Muslim Advocates.

New Report On Attitudes Toward Religious Liberty

Becket Fund for Religious Liberty this week released its second annual Religious Freedom Index, a 90-page report on American attitudes toward religion, culture and the law. The Executive Summary says in part:

[T]he Index asks questions that provide insights into opinion on past, present, and future religious liberty topics. These responses statistically group into six dimensions that contribute to the yearly Index score: 1)Religious Pluralism, 2) Religion and Policy, 3) Religious Sharing, 4) Religion in Society, 5) Church and State, and 6) Religion in Action.

The Becket website has additional information.

7th Circuit Stays, Pending Appeal, Injunction Against Creche On County Property

 As the holiday season approaches, the U.S. 7th Circuit Court of Appeals by a vote of 2-1 in Woodring v. Jackson County, Indiana, (7th Cir., Nov. 17, 2020), granted a stay pending appeal of a district court order barring the display of a creche on the historical county courthouse-- now county office building-- lawn. The appeal on the merits in the case was argued before the 7th Circuit last week. (See prior posting.) Judge dissented, saying:

The relief granted by the stay violates the Establishment Clause. The dominant religious content of the display communicates to a reasonable observer a governmental endorsement of Christianity, a matter as to which governments must remain neutral. In addition, the county waited so long to seek this stay that it cannot plausibly claim it needs emergency relief.

Liberty Counsel issued a press release (including a photo of the display) announcing the grant of the stay.

NY Court Approves Sale of Christian College Campus To Yeshiva

Under New York law, court approval (or approval by the attorney General) is required for sale of assets of a non-profit educational corporation. In In re Nyack College, (Sup Ct NY County, Nov. 13, 2020), the court approved the sale of Nyack College's South Nyack campus to Yeshiva of Viznitz D'Khal Torath Chaim in Ramapo. Nyack, a Christian College.  According to Lower Hudson News, the Yeshivah plans to operate Jewish religious schools for 250 college age students and 250 high school students.

10th Circuit Hears Oral Arguments In Colorado Ban On Discriminating Against Same-Sex Weddings

 On Monday, the U.S. 10th Circuit Court of appeals heard oral arguments (audio of full arguments) in 303 Creative v. Elenis. In the case, plaintiff Lorie Smith wanted to expand her business to design custom websites for couples planning weddings. However she would not provide her services for same-sex weddings.  Last year, a Colorado federal district court rejected a constitutional challenge to the application of the "communications clause" of Colorado's public accommodation law to Smith's business.  That law prohibits publication of any notice or advertisement indicating that services will be withheld on the basis of, among other things, sexual orientation. (See prior posting.) KNSI News reports on the oral arguments.

West Virginia Supreme Court Exempts Religious Schools and Camps From Deceptive Practices Ban

 In State of West Virginia ex rel. Morrisey v. Diocese of Wheeling-Charleston, (WV Sup. Ct., Nov. 16, 2020), the West Virginia Supreme Court held that the deceptive practices provisions of the state's Consumer Credit and Protection Act cannot be applied to educational and recreational services offered by a religious institution. It concluded that state statutory provisions protecting religious schools and institutions lead to this result.  It also held that 

the entire relationship between Church and State arising from the Attorney General’s application of the Act constitute an excessive entanglement of  Church and State...

According to the court:

[T]he Attorney General claimed that the Diocese had violated the deceptive practices provisions when it knowingly employed admitted and credibly-accused sexual abusers in its schools and camps but neither disclosed that material information to consumers nor warned them of the alleged dangers inherent to the educational and recreational services it provided. The Attorney General also claimed that the Diocese had made material misrepresentations regarding the safety of those services....

Justice Workman filed a dissenting opinion, saying in part:

The majority opinion is transparently result-oriented which explains its logical incoherence and sins of omission. The issue before the Court is one of fairness and honesty in commercial communications to the public---potential purchasers of goods and services. The fundamental question involves matters of unfair or deceptive acts or practices in advertising or selling and in advertising based on false promises. That is all. Nothing else is at issue. This case has absolutely nothing to do with the free exercise or expression of religious thought and nothing to do with regulating religious institutions in the sense of excessive State entanglement....

In conclusion, the majority opinion slams the door shut on enforcement of even the most blatant unfair or deceptive commercial conduct on the grounds that false or misleading advertising was perpetrated by a religious institution.... Ironically, religious institutions have been given an unfair marketplace advantage with respect to their commercial enterprises. 

AP reports on the decision.

New Jersey School's Presentation of Islam Did Not Violate Establishment Clause

 In Hilsenrath v. School District of the Chathams, (D NJ, Nov. 12, 2020), a New Jersey federal district court held that the 7th grade World Cultures and Geography course presentation of material about Islam did not violate the Establishment Clause.  The court held that a nominal damages claim is sufficient to give plaintiff standing to challenge the course material. The court said in part:

Here, the World Cultures course includes similar units on, for example, Hinduism and Buddhism, in which students watch videos on those religions to understand their tenets and practices.... A reasonable observer would not perceive an endorsement of Islam when the course also presented other religions in a similar manner. Further, Islam is introduced as part of a unit on the Middle East and North Africa in a course covering geography and world cultures, so it is presented in conjunction with nonreligious material about a region of the world....

This case falls into the category of those in which schools permissibly asked students to “read, discuss, and think” about a religion.

TAPinto reports on the decision.

11th Circuit Allows Buddhist Center To Move Ahead With RLUIPA and State Law Claims

 In Thai Meditation Association of Alabama, Inc. v. City of Mobile Alabama, (11th Cir., Nov. 16, 2020), the U.S. 11th Circuit Court of Appeals remanded to the district court some of the claims by a Buddhist group that its rights were violated when the city Planning Commission and City Commission refused to approve its proposed meditation center.  The court held that the district court had used the wrong test to determine whether  the refusal imposed a "substantial burden" in violation of RLUIPA and the 1st Amendment. The Court said in part:

it isn’t necessary for a plaintiff to prove—as the district court here seemed to assume—that the government required her to completely surrender her religious beliefs; modified behavior, if the result of government coercion or pressure, can be enough. ...

However the court rejected plaintiffs' religious discrimination claim, saying in part:

It’s not enough .. for the plaintiffs to show that community members opposed their applications on prohibited grounds—they must prove that the city officials who rejected them acted with discriminatory intent. And we cannot attribute the residents’ purported bias to city officials absent at least some proof that the officials “ratified” it.

The court also held that Alabama's Religious Freedom Amendment requires plaintiffs to merely show a "burden", rather than a "substantial burden" on their religious exercise. The Court said in part:

Given the post-RFRA context in which ARFA was adopted, and its pointed rejection of the phrase “substantially burden” in favor of “burden” simpliciter, we conclude that qualifier’s omission was intentional. No matter how tempting it may be—whether to harmonize state and federal law or, as the district court suggested, to “control[] the floodgates of litigation”—we aren’t at liberty to graft the adverb “substantially” onto a provision (or set of provisions) that won’t accommodate it....

Recent Articles and Publications of Interest

 From SSRN:

• Suzanne A. Kim, Commentary on Burwell v. Hobby Lobby, (in Feminist Judgments: Reproductive Justice Rewritten (Kimberly Mutcherson ed., 2020).
• Ihsan Yilmaz, Erdoğanism’s Undesired Citizens, (August 21, 2020).
• Meghan J. Ryan, Framing Individualized Sentencing for Politics and the Constitution, (American Criminal Law Review, Forthcoming).
• Nelson Tebbe, A Democratic Political Economy for the First Amendment, (105 Cornell Law Review 959 (2020)).
• Elijah Zachary Granet & Frank Cranmer, Re S (Parental Alienation: Cult), ([2020] LAW & JUSTICE 118).
• Marina Lostal, Islamic State and the Illicit Traffic of Cultural Property, (The International Criminal Responsibility of War’s Funders and Profiteers, edited by Nina H B Jørgensen, 122–47 (Cambridge: Cambridge University Press, 2020)).
• Muhammad Farooq, The Man’s Right to Dissolve the Muslim Marriage: Treatment of This Right in Shari’ah and in Case Law of Pakistan, (August 7, 2019).

From SmartCILP and elsewhere:

• Judith Bartnoff, 2019 Shrensky Lecture on Law and Jewish Ethics. Doing Justice: Judging and Jewish Values, 69 American University Law Review 615-628 (2019).
• Catherine A. Hardee, Schrodinger's Corporation: The Paradox of Religious Sincerity in Heterogeneous Corporations, 61 Boston College Law Review 1763-1818 (2020).
• John Inazu, Taking Stock of the Religion Clauses, 97 Washington University Law Review 1631-1640 (2020).
• Michael W. McConnell, Keynote address. Freedom of Association: Campus Religious Groups, 97 Washington University Law Review 1641-1652 (2020).
• Stephanie H. Barclay, Untangling Entanglement, 97 Washington University Law Review 1701-1728 (2020).
• Garielle M. Girgis, What Is a "Substantial Burden" on Religion under RFRA and the First Amendment?, 97 Washington University Law Review 1755-1786 (2020).
• Steven H. Sholk, A Guide to Election Year Activities of Section 501(c)(3) Organizations, (Updated 2020 version).
• Scott Wiener, Guardianship, Women, and Religious Freedom in Saudi Arabia, (USCIRF Update, Nov. 2020).

Chabad Moves One Step Closer To Recovering Sanctions Against Russia In Attempt To Repatriate Library

Agudas Chasidei Chabad of the United States v. Russian Federation, (D DC, Nov. 6, 2020), is the latest decision in a long-running attempt by Agudas Chasidei Chabad to recover from the Russian government two expropriated collections of valuable Jewish religious books and manuscripts. In 2013, the D.C. federal district court held the Russian government and three of its agencies in civil contempt, and imposed sanctions of $50,000 per day, for not complying with a 2010 default judgement ordering it to return the materials. (See prior posting). Plaintiffs attempted to find Russian assets to satisfy the sanctions by issuing subpoenas to Tenam, an indirectly wholly-owned subsidiary of Russia's nuclear agency.  Tenam challenged the subpoenas by challenging the underlying judgment against Russia. The district court held that Tenam lacks standing to challenge that judgment, and Tenam appealed. Now Tenam seeks a stay of discovery pending that appeal. In this latest 54-page decision, the federal district court denies that stay. VINnews reports on the decision. [Thanks to Steven H. Sholk for the lead.]

7th Circuit Hears Oral Arguments In Creche Case

The U.S. 7th Circuit Court of Appeals yesterday heard oral arguments in Woodring v. Jackson County, Indiana. (Audio of full oral arguments.) In the case, an Indiana federal district court refused to dismiss an Establishment Clause challenge to a nativity scene that is placed on the Jackson County courthouse lawn each December. (See prior posting).  Courthouse News Service reports on yesterday's oral arguments.

Brooklyn Diocese Asks Supreme Court To Enjoin COVID-19 Church Capacity Limits

Yesterday, an Emergency Application for Writ of Injunction (full text) was filed by the Catholic Diocese of Brooklyn in its challenge to New York Governor Andrew Cuomo's limitations on the number of persons who can attend a worship service during the COVID-19 pandemic. (See prior posting.) The U.S. Second Circuit Court of Appeals, in a 2-1 decision, refused to grant an injunction pending appeal to the Diocese and to a group of Jewish synagogues in the challenge to special restrictions on spots in which clusters of COVD-19 cases have broken out. SCOTUSblog reports on yesterday's filing.

UPDATE: On Nov. 16, the synagogues filed a similar Emergency Application. (Full text). SCOTUSblog has more on the filing.

Colorado Marijuana Ban May Be Applied To Cannabis Ministry

 In People v. Torline, (CO App., Nov. 12, 2020), a Colorado state appellate court held that Colorado’s law barring possession and growing of marijuana does not violate the state or federal Free Exercise rights of defendant, an ordained minister who grows the plants as part of his Cannabis Ministry. The court said in part:

[T]he incorporation of marijuana and marijuana concentrate into religious rituals is subject to regulation on equal terms with secular marijuana use. Colorado law does not penalize such conduct because of its religious character.

British Report Issued On Child Sex Abuse Response By Catholic Church

In Britain on Tuesday the government-authorized Independent Inquiry Into Child Sexual Abuse published its 154-page Investigation Report on the Roman Catholic Church (full text) (press release announcing the report). The Report says in part: 

As we have said previously, faith organisations are marked out from most other institutions by their explicit moral purpose. The Roman Catholic Church is no different. In the context of the sexual abuse of children, that moral purpose was betrayed over decades by those in the Church who perpetrated this abuse and those who turned a blind eye to it. The Church’s neglect of the physical, emotional and spiritual well-being of children and young people in favour of protecting its reputation was in conflict with its mission of love and care for the innocent and vulnerable.

The Bishops' Conference of England and Wales issued a statement welcoming the report. Law & Religion UK has more on the Report.

USCIRF Issues New Report On Persecution of Jehovah's Witnesses

The U.S. Commission on International Religious Freedom has issued a report (full text) on The Global Persecution of Jehovah's Witnesses. The Report says in part:

The governments outlined in this report tend to target Jehovah’s Witnesses as “extremists” or because of their conscientious objection to military service. Those countries that persecute Jehovah’s Witnesses on the basis of vague extremism accusations, however, have failed to provide any evidence to demonstrate that members of the community have ever been involved in any act of violence against the state or its citizens, or called for the overthrow of any such government. On the contrary, the group is doctrinally apolitical and pacifist, and the prosecution of its members as dangerous “extremists” demonstrates the capacity for abuse inherent in vague and sweeping anti-extremism legislation.