Court Denies Preliminary Injunction Against Nativity Scene

In Lamunion v. Fulton County, Indiana, (ND IN, Nov. 25, 2020), an Indiana federal district court refused to grant a preliminary injunction against a nativity display on the Fulton County courthouse lawn. The court explained:

[I]n 2018, [plaintiff] sued Fulton County, seeking declaratory and injunctive relief against the display. He did not seek preliminary injunctive relief when he filed his complaint, or during the next holiday season. Recently, however, almost two years after filing his complaint, he moved for a preliminary injunction prohibiting the county from erecting the display this year....

[P]laintiff contends that the display’s constitutionality would depend on a fact-intensive, totality-of-the-circumstances inquiry from the viewpoint of a reasonable observer. But the Court has only a couple snapshots of the display to consider. It is difficult from those few pictures to understand the context of the display and the way it would appear to a reasonable observer.... 

Resolving those difficult issues, while also giving due respect to the public’s interest and the sincere and deeply held convictions on both sides, requires a degree of care and deliberation simply not possible in the mere days the plaintiff has given the Court to rule.... The plaintiff asks this Court to pass judgment on a fifty-plus year old display in the span of a few days.... [E]ven assuming the plaintiff has established at least the minimum likelihood of success, the Court could not find that a preliminary injunction is warranted when weighing the preliminary injunction factors as a whole.

Supreme Court Enjoins, Pending Appeal, New York's COVID-19 Capacity Limits On Houses of Worship

The U.S. Supreme Court late last night, in a 5-4 decision, enjoined-- while appeals are pending-- New York's 10 and 25 person occupancy limits on houses of worship in red and orange zones of high COVID infections. In Roman Catholic Diocese of Brooklyn, New York v. Cuomo, (Sup. Ct., Nov. 25, 2020), in a decision that also applies to Agudath Israel of America v. Cuomo, the Court's per curiam opinion said in part: 

[S]tatements made in connection with the challenged rules can be viewed as targeting the “ ‘ultra-Orthodox [Jewish] community.’ ”... But even if we put those comments aside, the regulations cannot be viewed as neutral because they single out houses of worship for especially harsh treatment.

In a red zone, while a synagogue or church may not admit more than 10 persons, businesses categorized as “essential” may admit as many people as they wish. And the list of “essential” businesses includes things such as acupuncture facilities, camp grounds, garages, as well as many whose services are not limited to those that can be regarded as essential, such as all plants manufacturing chemicals and microelectronics and all transportation facilities....

[T]here are many other less restrictive rules that could be adopted to minimize the risk to those attending religious services. Among other things, the maximum attendance at a religious service could be tied to the size of the church or synagogue....

Members of this Court are not public health experts, and we should respect the judgment of those with special expertise and responsibility in this area. But even in a pandemic, the Constitution cannot be put away and forgotten. The restrictions at issue here, by effectively barring many from attending religious services, strike at the very heart of the First Amendment’s guarantee of religious liberty.

Justice Gorsuch filed a concurring opinion, stating in part:

The only explanation for treating religious places differently seems to be a judgment that what happens there just isn’t as “essential” as what happens in secular spaces. Indeed, the Governor is remarkably frank about this: In his judgment laundry and liquor, travel and tools, are all “essential” while traditional religious exercises are not. That is exactly the kind of discrimination the First Amendment forbids....

Even if the Constitution has taken a holiday during this pandemic, it cannot become a sabbatical.

Chief Justice Roberts filed a dissenting opinion arguing that while the restrictions pose serious concerns, the Court should not rule on them because the houses of worship before the Court are no longer in red and orange zones. He also criticized Justice Gorsuch's attack on the dissenters in the case.

Justice Kavanaugh filed a concurring opinion, explaining why he disagrees with Chief Justice Roberts' approach.

Justice Breyer, joined by Justices Sotomayor and Kagan, dissented, pointing out that the houses of worship are no longer under the challenged capacity limits and saying in part:

The nature of the epidemic, the spikes, the uncertainties, and the need for quick action, taken together, mean that the State has countervailing arguments based upon health, safety, and administrative considerations that must be balanced against the applicants’ First Amendment challenges.

Justice Sotomayor, joined by Justice Kagan, filed a dissenting opinion, saying in part:

It is true that New York’s policy refers to religion on its face. But as I have just explained, that is because the policy singles out religious institutions for preferential treatment in comparison to secular gatherings, not because it discriminates against them....

Finally, the Diocese points to certain statements by Governor Cuomo as evidence that New York’s regulation is impermissibly targeted at religious activity—specifically, ... New York’s Orthodox Jewish community.... The Diocese suggests that these comments supply “an independent basis for the application of strict scrutiny.”... I do not see how.... Just a few Terms ago, this Court declined to apply heightened scrutiny to a Presidential Proclamation limiting immigration from Muslim-majority countries, even though President Trump had described the Proclamation as a “Muslim Ban,”....

 New York Times reports on the decision.

Kentucky Governor Enjoined From Enforcing Closure of Religious Schools

 In Danville Christian Academy, Inc. v. Beshear, (ED KY, Nov. 25, 2020), a Kentucky federal district court enjoined Kentucky's governor  from enforcing his COVID-19 prohibition on in-person instruction against any religious private school in the state that adheres to applicable social distancing and hygiene guidelines. The court found that the restriction violates the school's free exercise rights, saying in part:

[A]lthough the Governor would like the Court to only compare schools in the context of the executive order and find the order to be one of general applicability, Maryville instructs otherwise. In answering the general applicability question in Maryville, the Sixth Circuit questioned why law firms, laundromats, liquor stores, and gun shops could stay open while churches, despite following CDC-approved guidelines, could not. 957 F.3d at 614. The restrictions which the Sixth Circuit criticized as “inexplicably applied to one group and exempted from another” are similar to those Danville Christian challenges today. This Court wonders why under this executive order, one would be free to attend a lecture, go to work, or attend a concert, but not attend socially distanced chapel in school or pray together in a classroom that is following strict safety procedures and social distancing.... Of even more significance, preschools in the state remain open after this executive order, as do colleges and universities.... The prohibition on in-person teaching is not narrowly tailored as required by Lukumi.

As reported by WKYT News, the state will request an emergency stay of the judge's order from the 6th Circuit.

President Issues Thanksgiving Day Proclamation

President Trump yesterday issued a Proclamation on Thanksgiving Day 2020, declaring today as a National Day of Thanksgiving. The Proclamation, which among other things acknowledges the "remarkable courage and boundless generosity of the American people" in battling the coronavirus pandemic, begins:

On Thanksgiving Day, we thank God for the abundant blessings in our lives.  As we gather with family and friends to celebrate this season of generosity, hope, and gratitude, we commemorate America’s founding traditions of faith, family, and friendship, and give thanks for the principles of freedom, liberty, and democracy that make our country exceptional in the history of the world.

China Proposes New Rules For Religious Activities By Foreigners

China's State Administration of Religious Affairs, part of its Ministry of Justice, last week published for comment new draft rules for the Administration of Foreign Religious Activities in the People's Republic of China. (Full text in Chinese). (Full unofficial English translation via Google Translate).

 CNN summarizes the proposed rules:

Though the draft rules affirm China's commitment to respecting "the freedom of religious belief of foreigners," the list of potential new restrictions and requirements could make practicing that belief far more difficult.

In particular, the draft rules include a list of activities that foreigners should not conduct within China, such as "interfering with or dominating the affairs of Chinese religious groups," advocating "extremist religious thoughts," using religion to conduct terrorist activities, or "interfering with the appointment or management of Chinese clergy members."

The last point appears aimed at the Vatican, with whom China has a longstanding dispute over the appointment of bishops by the official Chinese Patriotic Catholic Association.

5th Circuit En Banc Holds Medicaid Patients Cannot Challenge Planned Parenthood Defunding

In a procedurally complex holding, the U.S. 5th Circuit Court of Appeals en banc in Planned Parenthood of Greater Texas Family Planning and Preventive Health Services, Inc. v. Kauffman, (5th Cir., Nov. 23, 2020), vacated a preliminary injunction that had prevented Texas from terminating its Medicaid contracts with Planned Parenthood. Eleven of the 16 judges joined the majority opinion in full.  Three others joined it in part. Two dissented. The termination was prompted by a controversial video from a pro-life organization involving procurement of fetal tissue for research. In vacating the injunction, the majority said in part:

[T]he district court grant[ed] the Providers and Individual Plaintiffs’ [who were Medicaid patients] motion for a preliminary injunction and prohibit[ed] the termination of the Providers’ Medicaid provider agreements. The district court held that § 1396a(a)(23) granted rights to the Individual Plaintiffs upon which a § 1983 action challenging the OIG’s termination decision could be based. The district court concluded ... [that] the OIG “did not have prima facie . . . evidence, or even a scintilla of evidence, to conclude the bases of termination set forth in the Final Notice merited finding the . . . Providers were not qualified.” This appeal ensued.

A three-judge panel of this court held ... that the Individual Plaintiffs [Medicaid patients] could maintain a § 1983 suit.... We granted en banc review.

The preliminary injunction issued by the district court was based solely on the claims of the Individual Plaintiffs. The district court did not consider whether the Providers were entitled to a preliminary injunction. The question before us is whether the Individual Plaintiffs may bring a § 1983 suit to contest the State’s determination that the Providers were not “qualified” providers.... We hold that they may not. We accordingly vacate the preliminary injunction.

Because the district court did consider the Providers’ claims, no aspect of those claims is before us in this interlocutory appeal. Accordingly, we do not reach an issue addressed by JUDGE HIGGINSON’s opinion concurring in part and dissenting in part, which is whether the Medicaid agreements of entities affiliated with PP Gulf Coast were properly terminated.

UPDATE: Law & Crime reports on the decision.

Firing Only Unmarried Pregnant Teachers Is Not Proper Enforcement of Catholic School's Morals Code

 In Crisitello v. St. Theresa School, (NJ App., Nov. 19, 2020), a New Jersey state appellate court reversed the dismissal of a pregnancy discrimination lawsuit brought against a Catholic school by one of its former teachers. The court summarized its holding:

In this action brought under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, we are asked to determine whether a parochial school's knowledge of the pregnancy of an unmarried lay teacher, who started as a teacher's aide for toddlers, later taught art, and had no responsibility for religious instruction, can serve as the nondiscriminatory basis for the teacher's termination for violating the school's morals code, where the school never made any effort to determine whether any of its other employees have violated the school's prohibition against "immoral conduct" that is allegedly incorporated into each employees' terms of employment. We now hold that knowledge or mere observation of an employee's pregnancy alone is not a permissible basis to detect violations of the school's policy and terminate an employee.

Bridgewater Courier News reports on the decision.

Kentucky AG Sues Its Governor Over Religious School Closures

Last Friday, Kentucky's Attorney General along with a Kentucky Christian school filed a lawsuit in federal district court against Kentucky Governor Andrew Beshear challenging his recent COVID-19 Order barring schools-- including private religious schools-- from meeting in person. The complaint (full text) in Danville Christian Academy, Inc. v. Beshear, (ED KY, filed 11/20/2020) alleges in part:

The order contains no accommodations for religious education , despite such education being recognized by the Supreme Court as a “vital” part of many faiths... And, like the Governor’s previously enjoined orders, the latest order burdens religious institutions while arbitrarily allowing other gatherings that pose similar health risks to continue.

Regardless of how well-intentioned the Governor might be, his actions violate the federal and state constitutions and Kentucky’s Religious Freedom Restoration Act. His actions also infringe on the autonomy of religious institutions and violate the Constitution’s Establishment Clause.

The Attorney General issued a press release announcing the filing of the lawsuit.

Church Seeks Supreme Court Relief Against California COVID-19 Restrictions

As reported by Pasedena Now, Harvest Rock Church last Saturday filed an Emergency Application for an Injunction pending appeal (full text) with the U.S. Supreme Court. The Pasadena, California church is challenging Gov. Gavin Newsom's COVID-19 restrictions.

In the case, the U.S. 9th Circuit Court of Appeals in a 2-1 decision refused to issue a preliminary injunction against Governor Newsom’s Orders that restrict in-person worship services. (See prior posting). Liberty Counsel issued a press release announcing the filing of the petition.

New York AG Sues Buffalo Diocese and Former Bishops For Handling Of Sex Abuse Complaints

New York's Attorney General, in a 218-page complaint, yesterday filed suit against the Catholic Diocese of Buffalo, two of its former bishops and its Apostolic Administrator over the handling of complaints of sexual abuse of minors and vulnerable adults. The complaint (full text) in People of the State of New York v. Diocese of Buffalo, (NY County Sup. Ct., filed 11/23/2020), alleges in part:

The Attorney General brings this lawsuit to obtain remedial and injunctive relief for the persistent violation of New York nonprofit law by the Diocese of Buffalo .... For nearly two decades, the Diocesan Corporation ignored standards established by the U.S. Conference of Catholic Bishops ... to address and prevent the sexual abuse of minors by U.S. clergy. In direct defiance of the USCCB’s public commitment to reform, the Diocesan Corporation, through the conduct of its senior leadership, evaded key provisions of these standards, ignoring requirements for the investigation and review of alleged clergy sexual abuse....

[T]hrough their actions and inactions in response to the sexual abuse crisis, the Diocesan Corporation and its two most senior leaders ... violated multiple provisions of the Not-for-Profit Corporation Law ... and Estates, Powers and Trusts Law....

The Attorney General seeks injunctive relief to accomplish three objectives: provide mechanisms for independent review of the Diocesan Corporation’s response to alleged sexual abuse; require reporting to the Attorney General for a period of five years; and mandate external oversight of an appropriate remedial and compliance plan. This action also seeks to hold Bishop Malone and Auxiliary Bishop Grosz individually responsible for violating their secular duties as fiduciaries of the Diocesan Corporation by enjoining them from future service in a secular role as a director or officer of any charitable organization subject to New York law and by obtaining damages against and restitution from them for the waste of charitable assets caused by their misconduct.

The New York attorney general also issued a press release announcing the filing of the lawsuit. New York Times also reports on the lawsuit.

6th Circuit Allows Tennessee "Reason" Abortion Ban

In Memphis Center for Reproductive Health v. Slatery, (6th Cir., Nov. 20, 2020), the U.S. 6th Circuit Court of Appeals in a 2-1 decision reversed a district court and allowed the state of Tennessee to continue to enforce its "reason" abortion ban while the constitutionality of the provision is being litigated. At issue is a ban on physicians performing abortions where the physician knows that the abortion is sought because of the sex, race, or Down syndrome diagnosis of the fetus. Challengers contend in part that the ban is unconstitutionally vague.  ACLU issued a press release discussing the decision.

Supreme Court Denies Cert. In Satanic Temple Challenge To Abortion Law

The U.S. Supreme Court today denied review in Doe v. Parson, (Docket No. 20-385, certiorari denied 11/23/2020). (Order List.) In the case the U.S. 8th Circuit Court of Appeals rejected claims by a member of the Satanic Temple that Missouri's abortion informed consent law violates her 1st Amendment rights. (See prior posting.)

Supreme Court Denies Review In RLUIPA Standing Case

The U.S. Supreme Court today denied review in Rabbinical College v. Pomona, NY, (Docket No. 20-14, certiorari denied 11/23/2020). (Order List.) In the case, the U.S. 2nd Circuit Court of Appeals in a 104-page opinion affirmed in part the judgment in favor of those supporting construction of a rabbinical school in a New York village, but held that the College lacks standing to pursue some of its claims. (See prior posting.)  The College sought Supreme Court review on the issue of when a property owner has standing to assert a RLUIPA challenge to a zoning law that prohibits a particular land use.

Recent Articles of Interest

From SSRN:

• Larry O. Natt Gantt, II, Reframing the Wellness Challenges in the Legal Profession as Opportunities for Christian Lawyers to Be Salt and Light, (16 The Christian Lawyer 3 (Fall 2020)).
• Barry Winston Bussey, Blazing the Path: Freedom of Conscience as the Prototypical Right, (Supreme Court Law Review 2nd Series, volume 98, 2020).
• Isaac Sommers, Suffering for Her Faith: The Importance of an Intersectional Perspective on Gendered Religious Persecution in International Law, (Harvard International Law Journal, Vol. 61, No. 2, Pages 511–558, Summer 2020).
• Lee-ford Tritt, Litigation Blues for Red-State Trusts: Judicial Construction Issues for Wills and Trusts, (Florida Law Review, Vol. 72, No. 841, 2020).
• Jeroen Temperman, Blasphemy and the European Court of Human Rights: A Small Step Forward, A Giant Leap Back, (European Yearbook on Human Rights (Intersentia, 2019)).
• Thomas Simmons, Saint Paul’s Trial Narrative in Acts: Imperium Rōmānum vs. Vasileía tou Theoú, (South Dakota Law Review, Vol. 65, No. 2, 2020).
• Brian Owsley, Is The Supreme Court Irrational: Trump v. Hawaii,  (Southern California Interdisciplinary Law Journal, Vol. 29, No. 591, 2020).
• Guha Krishnamurthi & Charanya Krishnaswami, Title VII and Caste Discrimination, (November 6, 2020).
• Mark Sidel & David Moore, The Law Affecting Civil Society in Asia: Developments and Challenges for Nonprofit and Civil Society Organizations, (Univ. of Wisconsin Legal Studies Research Paper No. 1671 (2020)).

From SSRN (LGBTQ Rights):

• Alex Reed, Religious Nonadherence Claims as a Means of Contesting LGB-Related Employment Bias, (Berkeley Journal of Employment and Labor Law, Vol. 40, No. 2, 2019).
• James Duane, 'Without Undue Disrespect': An Open Letter to Justice Anthony Kennedy About His Opinion for the Court in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2018). (2020).
• Alex Reed, Beyond Bostock: Employment Protections for LGBTQ Workers Not Covered by Title VII, (New York University Journal of Legislation and Public Policy, Forthcoming).
• Frederick Mark Gedicks, Dignity and Discrimination, (Brigham Young University Law Review, 2021 Forthcoming).

From SSRN (Islamic Law):

• Eesha Shrotriya & Shantanu Pachauri, Criminalisation of Triple Talaq: Dissecting the Constitutional and Socio-Legal Aspects, (NLS Socio-Legal Review Forum, 2019).
• Adam Baczko, Gilles Dorronsoro, Arthur Quesnay & Maai Youssef, Maai, The Rationality of an Eschatological Movement: The Islamist State in Iraq and Syria, (Program on Governance and Local Development Working Paper No. 7, 2016).
• Tariq Javed, Modern Theories vs Islamic Concept of Jihad Impacting Pakistan Security Dilemma, (Malaysian Journal of Social Sciences and Humanities (MJSSH), Volume 5, Issue 9, (page 76 - 89), 2020).

From SmartCILP:

• Mark Strasser, Establishment Clause Health on a Restricted, Artificial Lemon Diet, [Abstract], (29 Boston University Public Interest Law Journal 169-222 (2019).
• Nadia B. Ahmad, Faith-Based Approaches to Ecological Harmony and Environmental Protection, 21 Rutgers Race & the Law Review 1-22 (2020).

6th Circuit Hears Oral Arguments In Case of Prof Who Refused To Use Student's Preferred Pronouns

The U.S. 6th Circuit Court of Appeals on Thursday heard oral arguments in Meriwether v. Hartop.(Audio of full oral arguments.) In the case, an Ohio federal district court dismissed a lawsuit by a college philosophy professor who was disciplined by a university when he refused to abide by the school's non-discrimination policy.  The professor refused to address a transgender student using the student's preferred gender identity title and pronouns, and instead used only the student's name. (See prior posting.) Portsmouth Daily Times reports on the oral arguments.

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.