4th Circuit Remands Muslim Inmate's RLUIPA and Equal Protection Claims

In Gentry v. Robinson, (4th Cir., Dec. 7, 2020), the U.S. 4th Circuit Court of Appeals affirmed in part and vacated in part a Virginia district court's dismissal of a suit by a Muslim inmate who, for religious reasons, seeks to maintain a full beard. The court remanded plaintiff's RLUIPA claim instructing the district court to consider, in light of the prison system's change in policy to now allow beards, whether the claim is moot. The court also remanded for further consideration plaintiff's equal protection claim. The court however agreed that plaintiff's claim for damages for violating his 1st Amendment free exercise rights should be dismissed, saying in part:

Because no law or precedent at the time of the challenged conduct “clearly established” that VDOC’s grooming policy violated the constitutional rights of religious objectors like Gentry, the defendants are entitled to qualified immunity on this claim.

10th Circuit Allows Enforcement of Disturbing-the-Peace Law Against Abortion Protesters

In Harmon v. City of Norman, (10th Cir., Dec. 7, 2020), the U.S. 10th Circuit Court of Appeals upheld a district court's refusal to enjoin during the pendency of litigation the use of Norman, Oklahoma's disturbing-the-peace ordinance against anti-abortion protesters. The court held that the ordinance is a neutral and narrowly-tailored time, place and manner regulation that does not violate the 1st Amendment. The court also rejected vagueness and overbreadth claims.

Suit Challenges Ohio County's COVID-19 School Closure Order

Three Toledo, Ohio area Christian schools and a state-wide organization of evangelical and Catholic schools filed suit yesterday in an Ohio federal district court challenging a Health Department's COVID-19 Resolution requiring secondary schools to end in-person teaching.  The complaint (full text) in Monclova Christian Academy v. Toledo-Lucas County Health Department, (ND OH, filed 12/7/2020), alleges in part:

If the Resolution is allowed to take effect, on December 4 at 4:00 p.m. in Lucas County, one will still be free to crowd in retail stores, go bowling with friends, go to the movies, attend concerts, go to a hair salon, get a manicure or massage or tattoo, or even go to the casino. Although there are limits and restrictions that govern how such in-person activities must operate, the Resolution has not prohibited them or altered the way in which those groups of people gather or use facilities. Yet, starting on December 4 at 4:00 p.m., Grades 7-12 (or 9-12 depending on school configuration) are strictly prohibited from attending in-person school, even when religious education is a deep and sincere facet of one’s faith, and even when those operating religious schools are abiding by strict social distancing and hygiene standards.

Citizens for Community Values issued a press release announcing the filing of the lawsuit. 

House Resolution Calls For International Repeal of Blasphemy, Heresy and Apostasy Laws

The U.S. House of Representatives yesterday, by a vote of 386-3 passed House Resolution 512 (full text) calling for the global repeal of blasphemy, heresy and apostasy laws. The Resolution says in part:

[B]lasphemy laws have affected Christians, Muslims, Hindus, Baha’i, secularists, and many other groups, are inconsistent with international human rights standards because they establish and promote official religious orthodoxy and dogma over individual liberty, and often result in violations of the freedoms of religion, thought, and expression that are protected under international instruments, including Articles 18 and 19 of the International Covenant on Civil and Political Rights (ICCPR)....

The Resolution "calls on the President and the Secretary of State to make the repeal of blasphemy, heresy, and apostasy laws a priority in the bilateral relationships...."

Department of Labor Broadly Defines Religious Exemption From Anti-Discrimination Rules for Federal Contractors

Yesterday, the U.S. Department of Labor Office of Federal Contract Compliance Programs in a 159-page Release (full text) adopted amendments defining expansively the religious exemption in the agency's rules imposing anti-discrimination requirements on government contractors and subcontractors. The agency's rules incorporate Executive Order 11246 which imposes non-discrimination and equal treatment requirements for employees of the contractor or subcontractor.  The Executive Order bars discrimination on the basis of race, color, religion, sex, sexual orientation, gender identity, or national origin. However there is an exemption for:

a religious corporation, association, educational institution, or society, with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

The amendments provide in part:

Religious corporation, association, educational institution, or society means a corporation, association, educational institution, society, school, college, university, or institution of learning that: 

(i) Is organized for a religious purpose; 

(ii) Holds itself out to the public as carrying out a religious purpose;

(iii) Engages in activity consistent with, and in furtherance of, that religious purpose; and

(iv)(A) Operates on a not-for-profit basis; or 

     (B) Presents other strong evidence that its purpose is substantially religious.

(2) Whether an organization’s engagement in activity is consistent with, and in furtherance of, its religious purpose is determined by reference to the organization’s own sincere understanding of its religious tenets....

Reactions to the new rule varied. For example, First Liberty praised the new rule, saying in part:

Religious organizations should never be forced to abandon their religious identity and mission in order to be eligible to partner with the federal government.

On the other hand, Americans United said in part:

The constitutional right to religious freedom promises everyone the right to live their lives secure that the government will treat them equally, no matter what their belief system. The new Department of Labor rule, however, turns this core American value on its head and puts countless peoples’ jobs at risk because they do not share the religious views or meet the religious code of conduct of a government contractor. Like so many others issued by the Trump administration, this rule particularly puts at risk workers who are LGBTQ, women, religious minorities and non-religious people.

Supreme Court Hears Arguments On Suits Over Nazi Confiscation of Jewish-Owned Property

The U.S. Supreme Court today heard oral arguments in two cases involving suits to recover the value of Jewish-owned property confiscated by governments in Hungary and Germany during World War II. In Republic of Hungary v. Simon (links to transcript and audio of full oral arguments), the Court was asked to decide on whether principles of international comity could be invoked by the district court to abstain from deciding the case under the Foreign Sovereign Immunities Act. The case was brought by surviving Hungarian nationals seeking to recover on behalf of a worldwide class the value of property taken from them during the Holocaust.

In an amicus brief, the United States government argued:

The United States has a paramount interest in ensuring that its foreign partners establish appropriate domestic redress and compensation mechanisms for Holocaust victims, and therefore seeks to prevent litigation in U.S. courts that could undermine that objective.

SCOTUSblog case page has links to all the filing in the case. 

In Federal Republic of Germany v. Philipp (links to transcript and audio of full oral arguments), the Court, in addition to the comity question, is asked to decide whether the expropriation exception to sovereign immunity in the Foreign Sovereign Immunities Act covers the taking of property in the Holocaust in violation of human rights provisions of international law. The suit seeks recovery for the forced sale at a fraction of its actual value of a collection of medieval reliquary art that had been purchased in 1929 by a consortium of Jewish art dealers in Germany.

SCOTUSblog case page has links to all the filing in the case.

AP reports on the arguments in both cases.

SCOTUS Denies Review In Transgender Bathroom Case

The U.S. Supreme Court today denied review in Parents for Privacy v. Barr, (Docket No. 20-62, certiorari denied 12/7/2020). (Order List). In the case, the U.S. 9th Circuit Court of Appeals upheld an Oregon school district's policy of allowing transgender students to use school bathrooms, locker rooms and showers that correspond to their gender identity. (See prior posting.) The petition for certiorari had raised privacy, religious and parental rights, and Title IX claims.

Recent Articles of Interest

 From SSRN:

• Anna Lukina, Angels, Demons, Us: Raz and Aquinas on Law’s Necessity (October 3, 2020).
• Marc Spindelman, Embracing Casey: June Medical Services L.L.C. v. Russo and the Constitutionality of Reason-Based Abortion Bans,(109 Georgetown Law Journal Online 115 (2020)).
• Kenneth A. Bamberger & Ariel Mayse, Privacy in Society: Jewish Law Insights for the Age of Big Data, (November 16, 2020).
• Charles F. Capps, Incidental Burdens on First Amendment Freedoms, (Forthcoming, Notre Dame Law Review Reflection, Vol. 96, No. -- , 2021).
• Steven A. Ramirez, Hate on the Ballot: Election 2020 and the Quest for a Diverse and Inclusive Democracy, (Harvard Latinx Law Review, Vol. 23, 2020).
• Patrick M. Garry, When Anti-Establishment Becomes Exclusion: The Supreme Court's Opinion in American Legion v. American Humanist Association and the Flip Side of the Endorsement Test, (Nebraska Law Review, Vol. 99, No. 3, 2020, p. 643-73).
• Mugambi Jouet, Death Penalty Abolitionism From the Enlightenment to Modernity, (American Journal of Comparative Law (2022 Forthcoming).
• Skylar Croy & Alexander Lemke, An Unnatural Reading of History: The Revisionist History of Abortion in Hodes v. Schmidt,  (Forthcoming in the Florida Journal of Law & Public Policy).
• John Wrench & Arif Panju, A Counter-Majoritarian Bulwark: The First Amendment and Professional Speech in the Wake of NIFLA v. Becerra, (Texas Review of Law & Politics, Vol. 23, No. 3, 2020).
• Nancy C. Marcus, Bostock v. Clayton County and the Problem with Bisexual Erasure, (Northwestern Law Review Online 2020).
• Sherally Munshi, Manners of Exclusion: From the Asiatic Barred Zone to the Muslim Ban, (October 12, 2020).

From SSRN (European, Middle East and Asian Law):

• Chih-hsiung Thomas Chen, Legislating the Right-to-Die with Dignity in a Confucian Society, (Hastings International and Comparative Law Review, Vol. 42, No. 2, 2019).
• Yofi Tirosh, Diminishing Constitutional Law: The First Three Decades of Women's Exclusion Adjudication in Israel, (18 International Journal of Constitutional Law (ICON) (2020)).
• Andreas Kulick, Corporate Human Rights?, (European Journal of International Law, Forthcoming).
• Kristin Henrard, State Obligations to Counter Islamophobia: Comparing Fault Lines in the International Supervisory Practice of the HRC/ICCPR, the ECtHR and the AC/FCNM, (Erasmus Law Review, Vol. 13, No. 3, 2020).

Indian State Places New Restrictions On Religious Conversion

On Nov. 27, the Indian state of Uttar Pradesh promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (full text) (section-by-section explanation). It outlaws religious conversions entered solely for the purpose of marriage, as well as religious conversions by means of misrepresentations, force, coercion, undue influence, allurement or fraud. Violations are punishable by imprisonment of 1 to 5 years, and a fine of up to $200(US)-- with higher punishments where a minor, a woman or member of a Scheduled Caste are involved, or a mass conversion. 

The new law also sets out an elaborate procedure for anyone who wishes to change his or her religion. The procedure includes a 60-day advance notice to the District Magistrate, followed by a police investigation, and a post-conversion filing. The clergy planning to conduct a conversion must file a notice 30 days in advance. The Hindu reports on the new law.

Time reports on the "love jihad" conspiracy theory that has given impetus to laws such as this one:

Love Jihad is a baseless conspiracy theory that Muslim men are attempting to surreptitiously shift India’s demographic balance by converting Hindu women to Islam through marriage. The narrative has been pushed by Hindu nationalist groups close to India’s ruling BJP since Prime Minister Narendra Modi was first elected in 2014....

The new law comes just two weeks after judges in Uttar Pradesh’s high court overturned a previous decision that religious conversions for the sake of marriage are unacceptable....

The high court case referred to is Priyanshi @ Km. Shamren and others v. State of U.P. and Another, (Allahabad High Court, Nov. 11, 2020). The court said in part:

Right to choose a partner irrespective of caste, creed or religion, is inhered under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.

Supreme Court Remands Church's Challenge To COVID Restrictions

In Harvest Rock Church v. Newsom,(US Sup. Ct., Dec. 3, 2020), the U.S. Supreme Court issued an Order treating the church's application for an injunction as a petition for certiorari before judgment, and granted the petition. It then vacated the district court's order and remanded the case for further consideration in light of the Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. In the case, a church challenged California Governor Gavin Newsom's COVID-19 restrictions on indoor worship services. (See prior posting.)  New York Times reports on the Supreme Court's Order.

DOJ Sues New York Village Over Discriminatory Zoning Aimed At Orthodox Jews

The Department of Justice announced yesterday that it has filed a RLUIPA lawsuit against the Village of Airmont, New York alleging that it has used its zoning code to discriminate against the Orthodox Jewish community.  The complaint (full text) in United States v. Village of Airmont, (SD NY, filed 12/2/2020), alleges that since the expiration of a prior consent decree, the Village has adopted a new zoning code, and has applied it in a discriminatory manner, that prevents Orthodox Jews from gaining zoning approval for home synagogues and a school. It has also enforced regulations in a manner that prevents Jews from clearing trees on their property to erect sukkahs, and prevents the installation of mikvahs. First Liberty Institute issued a press release with additional background. [Thanks to Steven H. Sholk for the lead.]

Factional Dispute In Church Is Dismissed

 In St. John Missionary Baptist Church v. Flakes, (TX App., Nov. 30, 2020), a Texas state appeals court affirmed the dismissal, on ecclesiastical abstention grounds, of a suit between two factions of a church. One faction attempted to remove the pastor through a church meeting. The pastor refused to step down and the other faction continued to pay him. In dismissing the suit, the court said in part:

Texas courts have consistently held that the relationship between an organized church and its ministers is its lifeblood, and matters concerning this relationship must be recognized as of prime ecclesiastical concern.

The court similarly held that the questions of whether members excommunicated by one faction could enter the church and whether they could vote on sale of church property were also covered by the ecclesiastical abstention doctrine. 

Anti-Gay Proselytizers Lose Suit Against City

In Waldrop v. City of Johnson City,Tennessee, (ED TN, Nov. 30, 2020), a Tennessee federal district court dismissed a suit by several individuals who were distributing religious literature at a gay pride event. Plaintiffs claimed that their free speech and free exercise rights were infringed when they were required by police to move from the entrance to the park where the event was being held to a nearby sidewalk. The court said in part:

The evidence supports only the conclusion that the officers escorted Plaintiffs from Founders Park, and voiced any attendant warnings to them about their return there, in response to their obstruction of the entrance—a content-neutral reason for their removal. The record is simply without evidence showing that Lieutenant Peters or any other officer moved Plaintiffs away from Founders Park for any other reason, much less for the reason that the content of Plaintiffs’ message was offensive or disagreeable. To the contrary, the evidence establishes— beyond any genuine issue of material fact—that the officers allowed Plaintiffs’ message to endure within the festival’s event area for hours into the day, despite TriPride’s organizers’ clamors for the officers to extinguish it.

5th Circuit, By 9-8 Vote, Denies En Banc Review In Ecclesiastical Abstention Case

In McRaney v. North American Mission Board of the Southern Baptist Convention, Inc., (5th Cir., Nov. 25, 2020), the U.S. 5th Circuit Court of Appeals by a vote of 9-8 denied en banc review of a panel decision that had refused to invoke the ecclesiastical abstention doctrine in a dispute between the Mission Board and its former executive director. (See prior posting.) In the case, plaintiff alleged that the Mission Board intentionally made false statements about him that led to his termination. Judge Ho, joined by 5 other judges, filed a dissenting opinion, saying in part:

This case falls right in the heartland of the church autonomy doctrine. A former Southern Baptist minister brought this suit to protest his dismissal from church leadership. That fact alone should be enough to bar this suit. As the saying goes, personnel is policy.

... The complaint acknowledges that the plaintiff was dismissed because he “consistently declined to accept” church policy regarding “the specific area of starting new churches..." He even admits that “this cause of action had its roots in Church policy.” We should take him at his word. This case is a dispute over a church’s vision for spreading “the gospel of Jesus Christ through evangelism and church planting”—a fundamental tenet of faith, not just for the defendant in this suit, but for hundreds of millions of evangelicals around the world. Put simply, this suit puts the church’s evangelism on trial.

Judge Oldham, joined by 4 other judges, also filed a dissenting opinion, saying in part:

What matters is that the jurisdictional line prohibiting civil courts from intruding on ecclesiastical matters is an ancient one. It goes back to the Middle Ages. It has been part of England’s formal law since William the Conqueror. It’s so entrenched in English history that even Coke—the seventeenth century’s fiercest champion of civil jurisdiction and the common law—respected it. And although there were disputes about boundaries of ecclesiastical jurisdiction over laypersons like Nicholas Fuller, there could be little dispute about ecclesiastical jurisdiction over ecclesiastical matters like ministry disputes and discipline.

[Thanks to Robert Tuttle for the lead.] 

Christian School Asks Supreme Court To Reinstate District Court's Injunction Against Kentucky's COVID Order

The battle continues in Kentucky over Governor Andrew Beshear's COVID-19 Order that prohibits in-person instruction at all public and private elementary and secondary schools. In a suit by Danville Christian Academy-- backed by Kentucky's Attorney General-- the federal district court enjoined the enforcement of the Order against private religious schools which follow other public health guidelines. Last Sunday, the U.S. 6th Circuit Court of Appeals stayed, pending appeal, the district court's preliminary injunction. (See prior posting.) Yesterday the school filed an emergency application with the U.S. Supreme Court asking it to stay the 6th Circuit's order and allow the district court's injunction to go into effect. (Full text of Emergency Application in Danville Christian Academy, Inc. v. Beshear, (Sup. Ct., filed 11/30/20). In accordance with Supreme Court practice, the emergency application was filed with the Justice assigned to the 6th Circuit (Justice Kavanaugh), who may either rule on it or refer it to the full Court. First Liberty issued a press release announcing the filing of the application.

Funeral Home Settles Transgender Employment Discrimination Claim After SCOTUS Loss

In June, the U.S. Supreme Court's Bostock decision held that Title VII of the 1964 Civil Rights Act which prohibits discrimination in employment "because of sex" protects gay, lesbian and transgender individuals. The decision covered three separate employment discrimination cases, one of which was R. G. & G. R. Harris Funeral Homes, Inc. v. EEOC. That case involved a discrimination claim by a transgender employee.  Yesterday the Detroit News reported that a Michigan federal district court has approved a settlement in the case:

U.S. District Judge Sean Cox on Monday approved the terms of the settlement between the estate of Stephens, who died in May, and her former employer, R.G. & G.R. Harris Funeral Homes, which going forward is prohibited from firing employees on the basis of transgender status.

Under the terms of the agreement, Harris Homes is to pay $130,000 to Stephens' estate, including $63,724 in back pay with interest and $66,276 in damages.

The consent decree also says Harris Homes, which operates three funeral homes in southeast Michigan, must pay another $120,000 to the ACLU Foundation for costs and plaintiff attorney fees.

The settlement also contains other remedial provisions.

6th Circuit Rejects Preliminary Injunction Against Kentucky's Closure of Religious Schools

In Commonwealth of Kentucky ex rel. Danville Christian Academy v. Beshear, (6th Cir., Nov. 29, 2020), the U.S. 6th Circuit Court of Appeals stayed a federal district court's preliminary injunction against part of Kentucky Governor Andrew Beshear's COVID-19 Order which prohibits in-person instruction at all public and private elementary and secondary schools. The district court had enjoined enforcement of the Order against private religious schools that otherwise follow public health measures. The 6th Circuit, in staying the district court's preliminary injunction pending appeal distinguished the U.S. Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo, saying in part:

Executive Order 2020-969 applies to all public and private elementary and secondary schools in the Commonwealth, religious or otherwise; it is therefore neutral and of general applicability and need not be justified by a compelling governmental interest....

Unlike in Roman Catholic Diocese, there is no evidence that the challenged restrictions were “targeted” or “gerrymandered” to ensure an impact on religious groups.... In addition, while many of the houses of worship in Roman Catholic Diocese could seat well over 500 people, they were subject to attendance caps of ten or twenty-five persons, while retail businesses were not.... There is no comparable harsh requirement aimed at religious institutions here.

AP reports on the decision. [Thanks to Tom Rutledge for the lead.]

Recent Articles of Interest

 From SSRN:

• Yehezkel Margalit, Bargaining in the Shadow of Get Refusal: How Modern Contract Doctrines Can Alleviate This Problem, (Ohio State Journal on Dispute Resolution, Vol. 36, 2020).
• Uladzislau Belavusau, Legislative and Judicial Politics of LGBT Rights in the European Union, (Don Haider-Markel (ed.), The Oxford Encyclopaedia of LGBT Politics and Rights (Oxford University Press, forthcoming in 2020)).
• Mohammad Islam, Rohingya Refugees: Implications of the Right to Return and the Right to Remain (October 14, 2020).
• Muhammad Kamaldeen Imam-Tamim, A Comparative Analysis of Criminal Procedural Systems Under Shari’ah and Common Law, (October 3, 2020).

From SmartCILP:

• Amr Shalakany, Book Review. Constituting Religion: Islam, Liberal Rights, and the Malaysian State, by Tamir Moustafa, [Abstract], (54 Law & Society Review 301-304 (2020)).

French Council of State Says Capacity Limits On Worship Services Are Too Strict

Religious freedom challenges to COVID-19 restrictions have spread to Europe. EuroWeekly reports that on Friday French Catholic bishops appealed to the Council of State, the country's highest court, challenging the country's 30-person limit on religious ceremonies. According to Reuters, today the Council of State ordered the government to review the restrictions, saying:

The claimants are right in saying that the measure is disproportionate in light of protecting the public's health ... thus it is a serious and illegal infringement on the freedom of worship.

According to Reuters:

The Conference of French Bishops welcomed the ruling and said that it would meet French Prime Minister Jean Castex later on Sunday to discuss new rules to limit the risk of coronavirus infection during church services.

"No other activity is limited by such a limitation regardless of surface area," it said.

Catholic organisations are proposing to allow churches to utilise 30% of their seating capacity.

Justice Alito Refuses To Enjoin Louisiana's COVID Restrictions On Churches

On Nov. 10, in Spell v. Edwards, a Louisiana federal district court dismissed a suit by megachurch pastor Tony Spell challenging the state's COVID-19 limits on worship services. Plaintiff filed an Emergency Application for an Injunction Pending Appeal with Supreme Court Justice Samuel Alito, contending:

This case presents a threshold question that other applicants did not present to this Court in prior religious liberty challenges: Whether the First Amendment places the decision of whether to assemble solely within the jurisdiction of the Church and not the State.

 On Nov. 27, Justice Alito, without referring the Application to the full court, denied the Application. Law & Crime reports on Justice Alito's action.