DC Archdiocese Seeks Liberalized Capacity Rules For Its Churches

Last week, the Catholic Diocese of Washington, D.C. sued in federal district court challenging D.C.'s COVID-related 50-person cap on religious gatherings.  It seeks, instead, percentage-based limits similar to those imposed on numerous commercial establishments. The complaint (full text) in Roman Catholic Archbishop of Washington v. Bowser, (D DC, filed 12/11/2020), alleges that half of the churches in the Archdiocese can accommodate 500 or more worshippers, and the largest can accommodate thousands. It contends that the current limits violate its 1st and 14th Amendment rights. The complaint declares:

 Christmas should be a time for reconciliation and joy, and the Archdiocese simply wants to welcome its flock home. It respectfully requests that it be allowed to do so.

Catholic News Service reports on the lawsuit.

UPDATE: In order to resolve the litigation, D.C.'s Mayor on Dec. 16 issued modified rules (full text of Mayor's Order) that allow houses of worship to admit up to 25% of their capacity, not to exceed 250 persons, for worship services. Other events or programs at churches are limited to 10 persons indoors or 25 outdoors. Other safety protocols are also required for religious services. Washington Post reports on the new Order.

9th Circuit Orders Injunction Against Nevada's COVID Limits On Churches

In Calvary Chapel Dayton Valley v. Sisolak, (9th Cir., Dec. 15, 2020), the U.S. 9th Circuit Court of Appeals held that Nevada's COVID-19 restrictions on worship services violate the Free Exercise clause. The court said in part:

The Supreme Court’s decision in Roman Catholic Diocese compels us to reverse the district court. Just like the New York restrictions, the Directive treats numerous secular activities and entities significantly better than religious worship services. Casinos, bowling alleys, retail businesses, restaurants, arcades, and other similar secular entities are limited to 50% of fire-code capacity, yet houses of worship are limited to fifty people regardless of their fire-code capacities.

Nevada Independent reports on the decision.

Federal Agencies Loosen Requirements For Faith-Based Grantees

 Yesterday nine federal departments jointly issued a 381-page release (full text) titled Equal Participation of Faith-Based Organizations in the Federal Agencies’ Programs and Activities. The Release amends existing rules to loosen restrictions on faith-based organizations operation of programs and activities funded by federal grants. The new rules impact grants by the Departments of Education, Homeland Security, Agriculture, Justice, Labor, Veterans Affairs, Housing and Urban Development, Health and Human Services, and Agency for International Development.

DOJ's press release on the new rules says in part:

This final rule ensures equal treatment for faith-based organizations, consistent with the Constitution and other federal law.  It removes requirements in prior regulations that placed unequal burdens on religious organizations, cast unwarranted suspicion on them, and were in tension with their religious liberty rights.  This final rule also clarifies that religious organizations do not lose various legal protections because they participate in federal programs and activities, such as the rights to accommodations and conscience protections under the First Amendment, Religious Freedom Restoration Act, and other federal laws.

Friendly Atheist blog describes the major changes as follows:

Right now, faith-based service providers have to refer clients elsewhere if the people say they feel uncomfortable with their religious affiliation. That’s now gone.

Right now, any clients are required to be told about their religious freedom rights. They’re told they don’t have to participate in any religious activities, they are entitled to go to an alternative service provider, and they can file a complaint if necessary. That’s now gone.

Right now, if clients receive a voucher for social services, there must be a secular provider in addition to any religious providers. That requirement is now gone… which means there may be no secular options for some people.

The new rules become effective Jan. 16, 2021. [Thanks to Scott Mange for the lead.] 

Supreme Court Sends Two Cases On COVID Limits Back For Reconsideration

In two separate cases today, the U.S. Supreme Court vacated district court opinions (1, 2) denying churches or clergy injunctions against state COVID-19 orders. The Supreme Court ordered those courts to reconsider the cases in light of the Supreme Court's recent decision in Roman Catholic Diocese of Brooklyn v. Cuomo. In one of today's cases, High Plains Harvest Church v. Polis, (Sup. Ct., Dec. 15, 2020), challenging Colorado restrictions, Justice Kagan, joined by Justices Breyer and Sotomayor dissented on the ground that the case is now moot since the challenged capacity limits have already been lifted. In the second case, Kevin v. Murphy, (Sup. Ct., Dec. 15, 2020), challenging New Jersey restrictions, no dissents to the one paragraph order were recorded. SCOTUSblog has more on the decisions. [updated]

Minnesota Town Approves Asatru Zoning Request

The Washington Post reported yesterday on a controversial religious zoning battle in the 273-person town of Murdock, Minnesota:

The Murdock City Council voted 3-1 ... to allow the Asatru Folk Assembly to turn the run-down church it purchased in July into its first “hof,” or gathering place, in the Midwest. The looming presence of the obscure Nordic folk religion, widely classified as a White supremacist hate group by extremism and religious experts, promoted months of pushback from concerned residents.

City leaders, meanwhile, were advised that denying the AFA’s permit could leave Murdock vulnerable to a potentially devastating religious discrimination suit.

Michigan Catholic School Challenges COVID Closure Order

A private Catholic school has sued seeking a declaration that Michigan's latest COVID-19 order temporarily closing down in-person high school instruction violates its Free Exercise rights.  The complaint (full text) in Saint Michael Academy, Inc. v. Gordon, (WD MI, filed 12/11/2020) alleges in part:

The Declaration of Dr. Jayanta Bhattacharya, a world-renowned scientific expert, professor of Medicine at Stanford University, and author of 136 articles in peer-reviewed journals, attached to this Complaint as Exhibit 3, presents scientific analysis which shows that prohibiting in-person instruction for pupils in grades 9 through 12 as does Director Gordon’s current Order, is not warranted by either transmission or mortality data, and causes these students great harm....

Without in-person instruction, St. Michael Academy is unable to provide the Christ-centered, communal academic environment required for its students to grow and develop in accordance with its religious purpose, mission and vision....

The current Order is an arbitrary order that, while closing down St. Michael Academy’s high school, nevertheless permits many other types of gatherings that pose similar or greater risks of COVID-19 transmission and infection, and that are unprotected by the Free Exercise clause of the United States Constitution.

Thomas More Law Center issued a press release with more details on the case. MLive reports on the lawsuit.

Ohio County's School Closure Order Upheld

In Monclova Christian Academy v. Toledo- Lucas County Health Department, (ND OH, Dec. 14, 2020), an Ohio federal district court refused to issue a temporary restraining order against COVID-19 rules which bar in-person instruction at the high school level, and bar use of schools for various activities. The suit was filed by three Christian schools and an organization of Christian and Catholic schools.  The court said in part:

The nature of Plaintiffs’ arguments stems in part from their assertion that the educational courses they offer to their students are inextricably intertwined with their religious beliefs and, therefore, to prohibit Plaintiffs from holding classes in the manner in which they believe is most consistent with the tenets of their faith is to interfere with the free exercise of their faith....

While, as Plaintiffs note, TLCHD has not ordered gyms, tanning salons, or casinos to close, ... these are not the relevant “comparable secular activities.” Instead, the comparable secular activities are educational classes offered by all other schools in Lucas County. These specific environments have substantially similar groupings and movements of individuals....

Plaintiffs’ arguments ... would extend to prohibit the government from regulating any aspect of a Christian’s public life because, as Plaintiffs’ mission statements make clear, the purpose of providing “a biblical foundation for . . . students” is to prepare students “to exemplify Christ [and] make Biblically-based decisions” throughout an individual’s life, and not only during the schools years.

Austria's Constitutional Court Strikes Down Assisted Suicide Ban; Hijab Ban For Young Girls

Last Friday, Austria's Constitutional Court issued two important decisions. It held it unconstitutional to prohibit assisting suicide.  According to the Court's press release:

At the request of several people affected, including two seriously ill people, the Constitutional Court (VfGH) repealed the provision that makes assisting suicide a criminal offense:

The phrase “or help him” in Section 78 of the Criminal Code is unconstitutional. It violates the right to self-determination, because this fact forbids any kind of assistance under any circumstances.

The Court also struck down the ban on young school girls wearing religious head coverings. Its press release said in part:

Pursuant to Section 43a, Paragraph 1, Clause 1 of the School Education Act, schoolchildren are prohibited from wearing ideologically or religiously influenced clothing that involves covering their heads until the end of the school year in which they turn 10.

Two children and their parents opposed this regulation. The children are raised religiously in the sense of the Sunni or Shiite legal school of Islam. You see in this provision, which is ultimately aimed at the Islamic headscarf (hijab), a disproportionate interference with the right to religious freedom and religious child-rearing. 

With the decision announced today, the Constitutional Court (VfGH) has repealed this "headscarf ban" as unconstitutional....

A regulation that selectively picks out a certain religious or ideological conviction by deliberately privileging or disadvantaging such a belief requires a special objective justification with regard to the requirement of religious and ideological neutrality.

AFP reported on the headscarf decision. [Thanks to Scott Mange for the lead.]

Recent Articles of Interest

 From SSRN:

• Netta Barak Corren, Regulating for Social Integration by Behavioral Design: An Evidence-Based Approach for Culturally Responsive Regulation, (Forthcoming, Regulation and Governance).
• Netta Barak Corren, A License to Discriminate? The Empirical Consequences and Normative Implications of Religious Exemption,  (Forthcoming, Harvard Civil Rights- Civil Liberties Law Review, Vol. 56, No. 2, 2021).
• Netta Barak Corren, Religious Exemptions Increase Discrimination Towards Same-Sex Couples: Evidence from Masterpiece Cakeshop, (Forthcoming, The Journal of Legal Studies).
• Patrick M. Garry, Establishment Clause Jurisprudence Still Groping for Clarity: Articulating a New Constitutional Model, (Northeastern  University Law Review, Vol. 12, No. 2, 2020, p. 660-706).
• Samsi Pomalingo, Fahimah M. Mooduto & Arfan Nusi, The Violence in the Name of God: Landscape of Radical Islamic Thought and Action in Indonesia, (September 18, 2020).
• Anton Sorkin, Book Review of the Conscience Wars: Rethinking the Balance Between Religion, Identity, and Equality (Susanna Mancini and Michel Rosenfeld, Eds. 2018), (Journal of Law and Religion, Forthcoming).
• Jerome A. Barron, Internet Access, Hate Speech and the First Amendment, (First Amendment Law Review, Vol. 18, No. 1, 2019).

From SmartCILP:

• Sohail Wahedim, Muslims and the Myths in the Immigration Politics of the United States, 56 California Western Law Review 135-202 (2019).
• Hillel Y. Levin, Private Schools' Role and Rights in Setting Vaccination Policy: A Constitutional and Statutory Puzzle, (61 William & Mary Law Review 1607-1662 (2020).

Court Refuses To Enjoin Kentucky Limits On In-Person Religious School Instruction

 In Pleasant View Baptist Church v. Saddler, (ED KY, Dec. 11, 2020, a Kentucky federal district court refused to issue a preliminary injunction against enforcement of Kentucky's COVID-19 orders that, among other things, ban in-person teaching at religious schools and limit the size of in-home social gatherings. Relying on 6th Circuit precedent, the court rejected free exercise challenges by Christian schools. It added, however:

Ultimately, the Supreme Court will decide this question. Danville Christian Academy, Inc., et al. v. Beshear, 20-6341 (6th Cir. Nov. 29, 2020), appeal docketed, No. 20A96 (Dec. 1, 2020). At this juncture, an injunction is not supported given the teaching of the Sixth Circuit, but that could change. And if it does, this Court will revisit Pleasant View’s request.

Street Preacher Planning Protest Lacks Standing In TRO Proceeding

In Gibson v. City of Vancouver, 2020 U.S. Dist. LEXIS 232408 (WD WA, Dec. 3, 2020), a Washington federal district court refused to issue a temporary restraining order to protect a street preacher who planned to hold a 20-person outdoor prayer protest at a public park to oppose the governor's COVID-19 orders. The court held that plaintiff lacks standing to sue, saying in part that plaintiff:

has not demonstrated that any of the Defendants he sued have communicated a specific warning or threat to initiate any proceedings against him if he carries out his plan...

Court Refuses To Enjoin City's Holiday Display Policy

In Knights of Columbus Star of the Sea Council 7297 v. City of Rehoboth Beach, Delaware, (D DE, Dec. 11, 2020), a Delaware federal district court refused to issue a preliminary injunction against the city's policy on religious displays at the Rehoboth Beach Bandstand. Plaintiffs want to continue their past practice of erecting a creche on the site for the Christmas season. The city's policy, which allegedly at one time banned religious displays of all kinds, was revised while this litigation was pending so that it now prohibits only any unattended private display on city property. However it permits attended religious and secular displays. The court said in part:

[B]ecause the motion is directed to a policy that no longer exists (if it ever did) and there is no realistic chance the alleged unconstitutional conduct will be resumed before the Court can reach the merits of the case, the motion must be denied as moot. It is also unripe. The Knights is free to apply to display an attended creche, but it has not yet done so. Finally, ... even assuming Plaintiff has established a likelihood of success on the merits, the motion must be denied because Plaintiff has failed to show it will suffer irreparable harm in the absence of preliminary injunctive relief.

Michigan Court of Claims: State Civil Rights Law Bans Gender Identity, But Not Sexual Orientation, Discrimination

In 2018, the Michigan Civil Rights Commission in Interpretive Statement 2018-1 concluded that:

as used in the Elliott Larsen Civil Rights Act “discrimination because of... sex” includes discrimination because of gender identity and discrimination because of sexual orientation.

Now in Rouch World, LLC v. Michigan Department of Civil Rights, (MI Ct. Cl., Dec. 7, 2020), the Michigan Court of Claims 

"discrimination because of sex under the ELCRA includes discrimination because of an individual’s “gender identity,” and thus Interpretative Statement 2018-1 is valid to that extent....

However, feeling itself bound by a prior state Court of Appeals decision, the court held:

discrimination because of an individual’s “sexual orientation” is not prohibited under the ELCRA. Whether enforcement of Interpretative Statement 2018-1, as modified by this opinion and order, would interfere with plaintiffs’ First Amendment rights to the free exercise of religion has not been sufficiently briefed to resolve at this juncture.

At issue in the case According to the Detroit News, Michigan's attorney general plans to support the Civil Rights Commission's full interpretation in an appeal.

Court Continues Injunction Allowing Medical Abortion Drug To Be Dispensed In Pharmacy Or By Mail

 In American College of  Obstetricians and Gynecologists v. U.S. Food and Drug Administration, (D MD, Dec. 9, 2020), a Maryland federal district court refused to stay its earlier preliminary injunction against enforcement during the COVID emergency of an FDA rule that prevents mifepristone, an oral medication used to induce abortion, from being received by mail or through a pharmacy. The rule mandates it be dispensed only in person at a clinic or doctor's office. The court said in part:

As the parties continue their ongoing dispute over the validity of the Preliminary Injunction and whether it should presently remain in effect, the Court notes that it is not open-ended. The Preliminary Injunction is slated to end 30 days after the end of the public health emergency declared by the Secretary. With the positive news relating to vaccines, there is reason to hope that day will come soon. At this time, however, as the entire nation goes through what the Coordinator of the White House Coronavirus Task Force has deemed the "most deadly phase of the pandemic,"... the Court concludes that Defendants have not identified changed circumstances sufficient to warrant a stay or dissolution of the Preliminary Injunction, in whole or in part.

Washington Post reports on the decision.

Court Refuses To Decide Whether LDS Church Is Christian

 In Ball v. Ball, (AZ App., Dec. 10, 2020), an Arizona appellate court was called upon to interpret a Parenting Plan that parents had agreed upon three years earlier as part of the dissolution of their marriage. The Plan provided:

Each parent may take the minor children to a church or place of worship of his or her choice during the time that the minor children is/are in his or her care.

Both parents agree that the minor children may be instructed in the Christian faith.

A year after the divorce, the father joined the LDS Church and sometimes took the children to meetings there. The mother objected claiming that the father's church is not Christian. The court held that the reference to "Christian" in the second clause does not limit the father's right to take the children to any place of worship, Christian or not.

The court went on to hold that the ecclesiastical abstention doctrine would bar it from deciding whether the Church of Jesus Christ of Latter Day Saints is part of the Christian faith, saying in part:

That very question has long been a matter of theological debate in the United States. A secular court must avoid ruling on such issues to prevent the appearance that government favors one religious view over another.

Supreme Court Holds That RFRA Authorizes Damage Actions Against Federal Officials

The U.S. Supreme Court today in Tanzin v. Tanvir, (Sup. Ct., Dec. 10, 2020), held that the Religious Freedom Restoration Act permits suits for damages against federal officials in their individual capacities. In an 8-0 opinion (written by Justice Thomas), the court described the case as follows:

Respondents Muhammad Tanvir, Jameel Algibhah, and Naveed Shinwari are practicing Muslims who claim that Federal Bureau of Investigation agents placed them on the No Fly List in retaliation for their refusal to act as informants against their religious communities. Respondents sued various agents in their official capacities, seeking removal from the No Fly List. They also sued the agents in their individual capacities for money damages. According to respondents, the retaliation cost them substantial sums of money: airline tickets wasted and income from job opportunities lost.

Focusing on RFRA's authorization of suits seeking "appropriate relief" against the federal government or government officials, the Court said in part:

A damages remedy is not just “appropriate” relief as viewed through the lens of suits against Government employees. It is also the only form of relief that can remedy some RFRA violations.

Justice Barrett did not take part in the decision.

USCIRF Hearing On Blasphemy Laws

 The U.S. Commission on International Religious Freedom held a hearing yesterday on Blasphemy Laws and the Violation of International Religious Freedom. Transcripts of remarks by several USCIRF commissioners at the hearing, and transcripts of the written testimony of several witnesses are available at the USCIRF website.

Sign Ordinance Invoked Against Abortion Protesters Is Unconstiutional

In Baker v. City of Fort Worth, (ND TX, Dec. 8, 2020), a Texas federal district court held that Fort Worth's sign ordinance is facially unconstitutional as a content-based prior restraint on speech.  The suit was brought by two plaintiffs who were cited for placing 18-inch crosses on a public right-of-way in front of an abortion clinic. The city ordinances require city council approval in order to display signs on public property, except for political signs at election polling locations.

9th Circuit Hears Oral Arguments In Church's Challenge To Nevada COVID Rules

On Tuesday, the U.S. 9th Circuit Court of Appeals heard oral arguments in Calvary Chapel Dayton Valley v. Sisolak (video of full oral arguments). In the case, a Nevada federal district court upheld Nevada Governor Steve Sisolak's COVID-19 Order limiting worship services to no more than 50 people with social distancing. (See prior posting.) Subsequently, the U.S. Supreme Court by a 5-4 vote refused to grant an injunction pending the appeal that was argued this week. (See prior posting.) After that, plaintiff filed a petition asking the U.S/ Supreme Court to grant certiorari before the 9th Circuit decides the case. (See prior posting.) That petition is still pending.

Michigan Catholic Schools Sue Over COVID Order

A group of Catholic schools and parents of students in the schools filed suit this week in a Michigan federal district court challenging the state's latest COVID-19 Order which temporarily bars in-person instruction in high schools. The schools claim that the latest order violates their free exercise, freedom of assembly, due process and equal protection rights. The complaint (full text) in Michigan Association of Non-Public Schools v. Gordon, (WD MI, filed 12/7/2020), alleges in part:

Plaintiffs fully understand and appreciate the challenges of limiting COVID’s spread and of contributing to the common good. They are convinced that continuing in-person religious education contributes  to the well-being of Michiganders, rather than harming it. That is why they have gone to such extraordinary lengths to ensure in-person schooling can be done safely for everyone.

Despite all this, Defendant has shuttered Plaintiffs’ schools. At the same time, Defendant allows other activities with demonstrably higher risks to continue. These include professional and collegiate athletics, tattoo parlors and hair salons. Defendant’s prior three-week “pause” order has now been extended and Plaintiffs face the prospect of indefinite future extensions....

MLive reports on the lawsuit.