Suit On Misrepresentations In Settling Clergy Sex Abuse Claims Is Dismissed

 In Caldwell v. Archdiocese of New York, (SD NY, May 19, 2021), individuals who released their childhood sexual abuse claims as part of the Archdiocese's ’ Independent Reconciliation and Compensation Programs brought a class action claiming misrepresentations in procuring the releases. They claimed misrepresentations regarding the fairness of the settlements, the independence of the plan administrators, as well as failure to advise claimants of the prospects for enactment of the New York Child Victims Act.  The court dismissed the claims because plaintiffs failed to plead them with particularity as required by Federal Rules of Civil Procedure, Rule 9(b).  They also failed to show a special relationship that would give rise to a duty to disclose information about the Child Victims Act and failed to show that they were induced to refrain from carrying out their own investigation.

Defamation Action By Bishop In Russian Orthodox Church Survives Motion To Dismiss

In Belya v. Metropolitan Hilarion, (SD NY, May 19, 2021), a New York federal district court refused to dismiss a defamation complaint by a leader of the Russian Orthodox Christian Church in the United States against various other Church leaders who oppose plaintiff's election as Bishop of Miami. According to the court, defendants, in a letter to the church's Synod, made various allegations:

Principally, the letter alleges that the election of Belya never actually occurred; that the results of Belya’s election were fabricated; that the communications from Hilarion to Russia were falsified, either with Hilarion’s knowledge or without; and that the letter from Archbishop Gavriil confirming that Belya had instituted the required changes of practice was likewise falsified. The Olkhovskiy Group requested, in light these allegations and additional unspecified complaints from persons in Florida, that Belya be suspended from clerical functions until the completion of a full investigation. This letter was disseminated among the members of the New York Synod, to parishes, churches, monasteries, and other institutions within ROCOR, as well as more broadly to online media outlets. 

According to Belya, after the September 3 Letter was sent, he was denied all access to Hilarion and was suspended from performing his duties as spiritual leader of his parish....

Rejecting an ecclesiastical abstention argument, the court concluded that the lawsuit "may be resolved by appealing to neutral principles of law. Plaintiff’s claim centers on Defendants’ allegations that he forged the various letters at issue that led to the confirmation of his election as Bishop of Miami."  The court went on:

Belya does not ask this Court to determine whether his election was proper or whether he should be reinstated to his role as Bishop of Miami, and the Court would not consider such a request under the doctrine of ecclesiastical abstention....

Defendants argued that the statements at issue could not be defamatory because they were merely allegations or opinions.  The court concluded, however, that at least one of the challenged statements were assertions of fact, not just allegations.

President Signs COVID-19 Hate Crimes Act

Yesterday, President Biden signed into law S.937, COVID-19 Hate Crimes Act. (full text). While the impetus for the bill was the increase in hate crimes against Asian-Americans and Pacific Islanders, the Act's provisions ramp up enforcement efforts relating to a broader group of hate crimes, including crimes committed because of the victim's religion. Among the Act's provisions are the following:

(1) Expedited review of hate crimes by the Justice Department during the next year.

(2) Justice Department must issue new guidance to states and localities on how to create online reporting of hate crimes and expand public education campaigns.

(3) Grants to states and local governments to assist in reporting of hate crimes to the National Incident-Based Reporting System.

(4) Grants for state-run Hate-Crime Hot Lines.

(5) Grants for law enforcement activities or crime reduction programs to respond to hate crimes.

(6) Justice Department must provide an annual report to Congress on the incidence of hate crimes.

(7) New provision on sentencing for hate crimes. If court imposes a term of supervised release after imprisonment, the court may order defendant to take classes or provide community service directly related to the community harmed by the defendant's offense.

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Virginia Muslim Politician Sues Over Lynching Threat

 A civil damage action for racial, religious and ethnic harassment in violation of Virginia Code § 8.01-42.1 was filed yesterday in federal district court by Qasim Rashid, a Virginia politician who is an Ahmadiyya Muslim and human rights activist.  Rashid sued Joseph Vandevere who used anonymous social media accounts to make violent threats, including the threat of lynching, against Rashid. The complaint (full text) in Rashid v. Vandevere, (ED VA, filed 5/19/2021), also alleges intentional infliction of emotional distress. In June 2020, Vandevere was sentenced in a criminal case to ten months in prison for making threats against Rashid. Muslim Advocates issued a press release announcing the filing of the lawsuit.

ISIS Supporter Pleads Guilty To Planning Ohio Synagogue Attack

The U.S. Attorney's Office for the Northern District of Ohio announced that yesterday Damon M. Joseph, aka Abdullah Ali Yusuf, pleaded guilty today to attempting to commit a hate crime by planning an ISIS-inspired attack on a synagogue in the Toledo, Ohio area. He also pleaded guilty to providing material support to ISIS and the Islamic State of Iraq. According to the Cleveland Jewish News, a preliminary plea agreement provides for a 20-year prison sentence for Joseph.

6th Circuit Rejects Free Exercise Challenge To Corporal Punishment Limitations

In Clark v. Stone, (6th Cir., May 19, 2021), the U.S. 6th Circuit Court of Appeals rejected a challenge by fundamentalist Christian parents that a child abuse investigation infringed their free exercise and due process rights. The parents believe that their religion requires them to use corporal punishment when necessary upon their children. The investigation led to a Juvenile Court order prohibiting the parents from physically disciplining their children. The court said in part:

While we can state with ease that there is a general right to use reasonable corporal punishment at home and in schools, that right is not an unlimited one. The Clarks have offered no authority that imposing corporal punishment that leaves marks is reasonable and is therefore a protected right....

... [A]lthough targeting religious beliefs is never acceptable, a generally applicable law that incidentally burdens one’s free exercise rights will typically be upheld....

Furthermore, any challenge to this regulation would likely survive strict scrutiny.... Here, the state certainly has a compelling interest in protecting children from physical abuse, and the regulation is written such that it explicitly does not prohibit corporal punishment that does not leave marks, bruises, etc. Thus, the regulation is narrowly tailored....

9th Circuit: Denial of Invocation Spot To Satanic Temple Was OK

 In The Satanic Temple, Inc. v. City of Scottsdale, (9th Cir., May 19, 2021), the U.S. 9th Circuit Court of Appeals affirmed an Arizona federal district court's dismissal of a religious discrimination suit by The Satanic Temple.  TST sued after it was not permitted to give a religious invocation at a city council meeting.  The district court concluded that the decision was based on a policy that only allowed organizations with substantial ties to the city to deliver invocations. According to the Court of Appeals:

After weighing the credibility of the witnesses, the district court properly concluded that TST had failed to prove by a preponderance of the evidence that TST’s religious beliefs were a factor, let alone a substantial motivating factor, in Biesemeyer’s decision not to approve TST to give a legislative prayer.

Friendly Atheist blog discusses the case.

County's Current COVID Restrictions Upheld

In Abundant Life Baptist Church of Lee's Summit, Missouri v. Jackson County, Missouri, (WD MO, May 17, 2021), a Missouri federal district court held that free exercise, free speech, freedom of assembly and Establishment Clause challenges to prior versions of Jackson County's COVID-19 restrictions should not be dismissed. However challenges to the current version of the restrictions were dismissed because the restrictions do not distinguish between churches and other businesses or indoor spaces.

Suspended Priest's Age Discrimination Claim Dismissed Under Ecclesiastical Abstention Doctrine

In In re Roman Catholic Diocese of El Paso, (TX App., May 17, 2021), a Texas appellate court by a vote of 2-1 held that under the ecclesiastical abstention doctrine, Texas civil courts lack jurisdiction over an age discrimination and fraud case brought by a Catholic priest against his diocese.  The suit was brought when the diocese reduced payments being made to the priest who was placed on administrative leave after criminal allegations were lodged against him. The majority said in part:

The Diocese contends in this mandamus that a civil court cannot adjudicate whether Bishop Seitz exercised his discretion to reduce Olivas’s payment of decent support in a reasonable manner without inextricably involving itself in the governance of the Catholic Church. We agree and conclude that for both of the asserted claims in this case, that the fact finder would have to judge the stated rationale of Bishop Seitz’s reduction of payments which is grounded under the church’s canon law.

Chief Justice Rodriguez dissented on several grounds. He said in part:

I believe that employment discrimination laws such as the age discrimination provision of Texas Commission on Human Rights Act ... may be constitutionally enforced against religious entity employers, provided that the employee bringing the claim is not one of the defendant’s “ministers.”...

[T]he wrinkle in this case is that while Olivas retains the title of priest, he is by the Church’s own assessment a priest in name only. Seitz admitted that Olivas does not and cannot perform any ministerial duties for the Diocese due to Olivas’ suspension of faculties.

Supreme Court Dismisses Cert. Grants On Title X Rule As HHS Considers Repeal

As previously reported, in February the U.S. Supreme Court granted certiorari in three related cases challenging a Trump Administration rule promulgated by the Department of Health and Human Services in March 2019. Among other things, the rule imposes new restrictions on abortion referrals by health care providers receiving Title X family planning funds. It effect was to cut off millions of federal dollars to Planned Parenthood. In April, however, the Biden Administration issued a proposed rule that would reverse the Trump Administration change in policy. (See prior posting.) In light of that, and the Government's assurance that it will continue to enforce the Trump Administration rules until they are changed (except in Maryland where an injunction is in force), the Supreme Court yesterday, by a vote of 6-3, dismissed the certiorari petitions. (American Medical Association v. Becerra, Docket No. 20-429, Becerra v. Mayor and City Council of Baltimore, Docket No. 20-454, Oregon v. Becerra, Docket No. 20-539, cert. dismissed 5/17/2021) (Order List.) Justices Thomas, Alito and Gorsuch would not have dismissed the petitions. SCOTUSblog reports on the Court's action.

Supreme Court Grants Review In Mississippi Abortion Ban Case

Yesterday, the U.S. Supreme Court granted review in Dobbs v. Jackson Women's Health Center, (Docket No. 19-2392, certiorari granted 5/17/2021). (Order List). In the case, the U.S. 5th Circuit Court of Appeals struck down a Mississippi statute that prohibits abortions, with limited exceptions, after 15 weeks' gestational age. The Supreme Court limited its grant of review to Question 1 presented in the petition for certiorari:

Whether all pre-viability prohibitions on elective abortions are unconstitutional.

Here is the SCOTUSblog case page with all the filings in the case. NPR reports on the Court's grant of review.

Recent Articles of Interest

From SSRN:

• Russell Powell, Spirit of the Corporation, (Seattle University Law Review, Vol. 44, No. 2, 2021).
• Amit Anand, Repression of Uyghur Muslims and The Freedom of Religious Beliefs in China, (Journal of Social Inclusion Studies (SAGE Publication), Forthcoming).
• Bidisha Das & Shivangi Banerjee, Hindu Female Intestate Succession Laws and Their Impact on Fundamental Rights of the Elderly, (May 1, 2021).
• Mark Koyama, The Institutional Foundations of Religious Freedom, (October 2020).
• Jaclyn L. Neo, Religious Freedom, (forthcoming in The Oxford Handbook of Constitutional Law in Asia).
• Johnny Davis, Conservative Betrayal, Natural Law and Legal Positivism, (May 10, 2021).
• Dr. Rifai Sulaiman Lebbe, Capital Punishments in Islamic Law, (May 11, 2021).
• Raphael Cohen-Almagor, Tolerating Racism and Hate Speech: A Critique of C.E. Baker’s 'Almost' Absolutism, (in: Sardoč M. (eds) The Palgrave Handbook of Toleration 2021. Palgrave Macmillan, Cham).
• Guiora, Amos N. Guiora, State Complicity and Religious Extremism: Failing the Vulnerable Individual, (State Complicity and Religious Extremism: Failing to Protect the Vulnerable, Afshin Elian and Paul Cliteur, eds.).

From SmartCILP:

• Mark R. Killenbeck, Pandora's Cake, 72 Arkansas Law Review 769-814 (2020).
• Jeffrey D. Jackson, Tiered Scrutiny in a Pandemic, 12 ConLawNOW 39-56 (2020).

Texas Passes Heartbeat Abortion Law With Broad Civil Enforcement Provision

Today the Texas legislature sent to Governor Greg Abbott for his signature SB8 (full text), the state's version of a "heartbeat" abortion law. Except in medical emergencies, it bans performing or inducing an abortion if the physician has detected a fetal heartbeat. Unique to the Texas law is a provision that allows any private person to bring a civil action against a physician who has violated the statute, and against anyone who knowingly aids or abets the abortion, including reimbursing the costs of an abortion through insurance, regardless of whether the person knew or should have known that the abortion would be performed or induced in violation of the statute. However, no action may be brought against the woman on whom the abortion was performed. Plaintiff may recover statutory damages of not less than $10,000 for each abortion the defendant has been involved in. Daily Beast reports on the new statute. [Thanks to Scott Mange for the lead.]

Biden Sends Greetings To Muslims Celebrating the Eid al-Fitr

 In a Facebook post yesterday, President Joe Biden said:

As the holy month of Ramadan comes to an end, Jill and I send our warmest greetings to all those celebrating Eid. May you be well throughout the year. Eid Mubarak.

Hawaii Mask Mandate Did Not Violate Protester's Free Exercise Rights

 In Denis v. Ige, (D HI, May 12, 2021), a Hawaii federal district court rejected challenges to Hawaii's COVID-19 mask requirements. Plaintiff, who was arrested at a protest for failing to wear a mask, asked for $632 million in damages.  Among other challenges, he asserts that his free exercise rights were violated:

He appears to contend that because the Mask Mandates “infringe[] upon [his] right to breathe oxygen without restriction,” which is “in violation [of his] covenant with his Creator of many names,” the Mask Mandates inhibit his religious practices.

The court concluded that plaintiff failed to allege that the mask mandate imposed a substantial burden on his practice of religion, and the mandate survives rational basis review. The court also rejected other claims, including free speech and freedom of association claims.

State Department Releases 2020 International Religious Freedom Report

 Secretary of State Anthony Blinken yesterday announced release of the 2020 International Religious Freedom Report. The report surveys the status of religious freedom in virtually every foreign nation. In his remarks, Secretary Blinken said in part:

To name just a few examples from this year’s report, Iran continues to intimidate, harass, and arrest members of minority faith groups, including Baha’i, Christians, Jews, Zoroastrians, Sunni and Sufi Muslims.

In Burma, the military coup leaders are among those responsible for ethnic cleansing and other atrocities against Rohingya, most of whom are Muslim, and other religious and ethnic minorities around the world.

In Russia, authorities continue to harass, detain, and seize property of Jehovah’s Witnesses as well as members of Muslim minority groups on the pretense of alleged extremism.

In Nigeria, courts continue to convict people of blasphemy, sentencing them to long-term imprisonment or even death.  Yet the government has still not brought anyone to justice for the military’s massacre of hundreds of Shia Muslims in 2015.

Saudi Arabia remains the only country in the world without a Christian church, though there are more than a million Christians living in Saudi Arabia.  And authorities continue to jail human rights activists like Raif Badawi, who was sentenced in 2014 to a decade in prison and a thousand lashes for speaking about his beliefs.

And China broadly criminalizes religious expression and continues to commit crimes against humanity and genocide against Muslim Uyghurs and members of other religious and ethnic minority groups.

Today, I’m announcing the designation of Yu Hui, former office director of the so-called Central Leading Group Preventing and Dealing with Heretical Religions, of Chengdu, for his involvement in gross violations of human rights, namely, the arbitrary detention of Falun Gong practitioners.  Yu Hui and his family are now ineligible for entry into the United States.

10th Circuit Hears Oral Arguments In Ministerial Exception Case

On Tuesday, the U.S. 10th Circuit Court of Appeals heard oral arguments (audio of full arguments) in Tucker v. Faith Bible Chapel International.  In the case, a Colorado federal district court refused to dismiss on the pleadings a ministerial exception case. At issue is whether a science teacher and chaplain/ director of student life at Faith Christian Academy is a "minister" for purposes of the exception.  Plaintiff  was fired after he organized a controversial chapel service titled "Race and Faith." Reuters has additional background on the oral arguments.

Court Wil Not Enjoin South Carolina "No Aid" Clause

In Bishop of Charleston v. Adams, (D SC, May 11, 2021), a South Carolina federal district court refused to grant a preliminary injunction in a suit challenging the constitutionality of the "no aid" clause in South Carolina's Constitution. That clause bars the use of public funds to benefit any religious or other private educational institution. Plaintiffs, which include a diocese representing 33 Catholic schools, sought access to federal CARES Act funds that had been directed to South Carolina. The court distinguished this case from the U.S. Supreme Court's decision in Espinoza v. Montana Dep’t of Revenue which struck down Montana's "no aid" clause.  The court said in part:

[T]he Supreme Court struck down Montana’s no-aid provision precisely because it discriminated against religious schools but not other private schools, creating an implicit contrast with no-aid provisions like South Carolina’s that encompass both religious and private non-religious schools. Unlike the provision at issue in Espinoza, South Carolina’s no-aid provision prohibits the use of public funds for the direct benefit of religious and non-religious private schools alike. In other words, South Carolina’s provision discriminates along the private/public divide, not the religious/non-religious divide.

New Pew Survey On Jewish Americans Released

The Pew Research Center yesterday released a 248-page survey Jewish Americans in 2020. (Summary of Report) (Full text of Report). The report estimates the Jewish population in the United States to be 7.5 million. Its one-sentence summary of the detailed and extensive report is:

U.S. Jews are culturally engaged, increasingly diverse, politically polarized and worried about anti-Semitism.