Friday, July 19, 2024

International Representatives Release Guidelines for Countering Antisemitism

On Wednesday in Buenos Aires, Argentina, representatives of 36 nations and international organizations, including U.S. Special Envoy to Monitor and Combat Antisemitism Ambassador Deborah Lipstadt, released a set of legally nonbinding Global Guidelines for Countering Antisemitism (full text). Thursday was the 30th anniversary of the 1994 Hizballah bombing of the Asociación Mutual Israelita Argentina (AMIA) in Buenos Aires in which 85 people were killed. On Thursday, Secretary of State Blinken issued a statement (full text) announcing the Guidelines, saying in part:

The United States is pleased to play a leadership role, together with the European Union, the Organization of American States, the Government of Argentina, and other governments and international bodies, in advancing these guidelines and we invite others across the international community to endorse and implement them.  The Guidelines identify practical actions that governments, international bodies, civil society organizations, and people of conscience everywhere can take against antisemitism wherever and whenever it occurs.

Suit Challenges California's Ban on School Parental Notification Requirements as to Gender Transitioning

A school district and parents of school-age children filed suit this week in a California federal district court challenging California's recently-enacted AB 1955.  The statute prohibits school districts from requiring notification of parents when their children are socially transitioning their gender in school, unless the student consents to the disclosure. The complaint (full text) in Chino Valley Unified School District v. Newsom alleges that the statute violates parental rights to control the upbringing of their children and parents' free exercise rights as well as being preempted by the federal Family Educational Rights and Privacy Act. The complaint alleges in part:

The Parent Plaintiffs have each alleged that they are devout Christians who believe God created man and woman as distinct, immutable genders; their religious beliefs require that they be notified if their child requests to socially transition at school so that they may be involved with their child's treatment at school.

ABC News 10 reports on the lawsuit.

Russian Court Bans Online Sale of Souvenir Toilet Paper: Depiction Offends Feelings of Religious Believers

Moscow Times and Vyorstka reported yesterday that a Russian District Court in Moscow has banned the offering on four websites in Russia of souvenir toilet paper imprinted with images of the 1997 version of Russia's 1000-ruble bills. The court found that the toilet paper "offends the feelings of religious believers" in violation of Article 148 of the Russian Penal Code. The 1000-ruble bill carries a picture of a statue of Yaroslav the Wise who was Grand Prince of Kiev from 1019 to 1054. Yaroslav the Wise was canonized in 2016 by the Bishops Council of the Russian Orthodox Church. Prior to that, in 2005 he was named a local saint by the Patriarch of Moscow and in 2004 he was included in the calendar of saints of the Ukrainian Orthodox Church (Moscow Patriarchate). The court said in part:

In a free democratic society, the dissemination of illegal information capable of offending the religious feelings of believers cannot be protected by freedom of thought, speech, opinion and information

Company Settles EEOC Suit for $110,000, Compensating Employee Whose Religious Objections to Vaccine Were Ignored

 A national furniture retailer, Hank's Furniture, has settled a Title VII religious discrimination lawsuit brought against it by the EEOC. Under a consent decree, Hank's will pay $110,000 in damages and will implement a written policy assuring broad accommodation of religious beliefs that do not impose an undue burden. According to the EEOC's press release:

... [A] former assistant manager at HFI’s Pensacola, Florida, location notified the company that her religious beliefs prevented her from receiving a COVID-19 vaccine. Rather than discuss the employee’s religious beliefs to determine the feasibility of an accommodation, management ignored accommodation requests then summarily denied the employee’s requests and attempted to dispute the validity of her sincerely-held religious beliefs.

Thursday, July 18, 2024

9th Circuit: Zen Apprentice's Suit Dismissed Under Ministerial Exception Doctrine

In Behrend v. San Francisco Zen Center, Inc., (9th Cir., July 17, 2024), the U.S. 9th Circuit Court of Appeals affirmed the dismissal under the ministerial exception doctrine of a disability discrimination suit brought by plaintiff who worked at the Zen Center as a Work Practice Apprentice.  The court said in part:

Behrend ... appeals, arguing that he was not a minister because he performed mostly menial work and did not have a “key role in making internal church decisions and transmitting the faith to others.”...

Behrend was tasked with performing maintenance, kitchen, and guest services. But he was also responsible for assisting with rituals, participating in meditations and services, cleaning the temple, attending talks and classes, and performing doan ryo ceremonial tasks like ringing bells and cleaning altars. He lived and worked full time at the temple as a monk. While Behrend may not have taught and was not a part of the hierarchical leadership structure, he “performed vital religious duties” as part of the Center’s WPA program.... In short, were the court to adopt a rule like the one Behrend suggests, we would be “interfering with the freedom of religious groups to select” who may or may not serve as a live-in monk.

Wednesday, July 17, 2024

Cert. Petitions Filed in Challenges to Bans on Transgender Women on Women's Sports Teams

Last week, a petition for certiorari (full text) was filed in the U.S. Supreme Court seeking review in Little v. Hecox, (Docket No. 24-38, cert. filed 7/11/2024). At issue in the case is whether Idaho's Fairness in Women's Sports Act violates the Equal Protection Clause.  The Act prohibits transgender women and girls from participating on women's sports teams in public elementary schools, high schools and public colleges. Here are the 9th Circuit opinions issued in the case and text of the relevant statutes.

In a related case, State of West Virginia v. B.P.J., (Docket No. 24-23, cert. filed July 16, 2024), a petition for certiorari (full text) was filed in a case challenging West Virginia's Save Women's Sports Act as violative of Title IX and of the Equal Protection Clause.  At issue is the ban on transgender girls participating on girls' sports teams in public high schools or state colleges where team members are chosen on the basis of competitive skills or in contact sports. Here is the 4th Circuit's opinion in the case and the text of the relevant statute.

ADF issued a press release announcing the filing of the petitions.

Diocese Not Liable in Bankruptcy for Sex Abuse Without Agency Relationship with Abuser or Abuser's Institution

In In re Roman Catholic Diocese of Rockville Centre, New York, (SD NY, July 15, 2024), a New York federal district court affirmed a bankruptcy court's dismissal of appellants' claims that they were sexually abused as children by clergy and staff at religious institutions in the diocese's territory. The court said in part:

... [T]o adequately assert state law tort claims, Claimants must plead that the Debtor had some control over the abusers or the religious institutions where the abuse occurred....  In other words, Claimants were required to plead the existence of an employment or agency relationship between the Diocese and the alleged abusers, or an agency relationship between the Diocese and the religious institutions.   

The bankruptcy court properly determined that Claimants offered no non-conclusory allegations to support either theory of liability....

The bankruptcy court correctly observed that “the Free Exercise Clause and Establishment Clause of the United States Constitution bar courts from interpreting issues of religious Canon Law to resolve disputes.”...  Instead, “the claimants must show that an employment or agency relationship existed between the Debtor and abuser or Religious Institutions/Orders, based on facts relevant to those theories as they are normally established in the secular context.”... [T]he resolution of the issue presented in this case ... does not, however, depend upon any interpretation of Canon Law that would violate the First Amendment.  Here, Claimants fail to state a claim because the allegation that the Diocese revoked the faculties of one abuser accused in connection with a claim that is not at issue in this appeal is insufficient to plausibly allege that the specific abusers at issue here were employees or agents of the Diocese, or that their institutions were agencies of the Diocese.... [A]n allegation that the Diocese hired, fired, supervised, or disciplined an individual not at issue in this appeal does not support an inference that the Diocese has the power to control all clergy or staff at Catholic institutions within its geographic territory or exercised that power over any specific abuser in this appeal....

Former Priest's Defamation Claim Dismissed Under Ecclesiastical Abstention Doctrine

In Episcopal Diocese of Southern Virginia v. Marshall, (VA App., July 16, 2024), a Virginia state appellate court held that a defamation per se claim by a former Episcopalian priest against a bishop who removed him from the ministry should be dismissed under the ecclesiastical abstention doctrine. The former priest, Robert Marshall, allegedly made improper comments to a female employee. The court said in part:

We find that the defamation claim is inextricably intertwined with the disciplinary proceedings that led to the priest’s ouster.  In addition, the trier of fact would have to decide if the priest committed “sexual misconduct” within the meaning of canon law, which proscribes a broader swath of conduct than secular law....

Marshall claims that the bishop falsely stated that the investigator had “determined that the allegations had merit.” ... He says that the bishop falsely stated that Marshall had admitted to the improper conduct....  He pleads that Bishop Haynes also lied when she claimed that the church had followed the process required under ecclesiastical law....

[A]lthough Marshall denies that he wants a secular court to undo his defrocking, his defamation claim is so intertwined with the bishop’s deposing him as a priest that the defamation claim cannot be litigated without entangling the court in a religious dispute.  When a priest who has been fired sues the church and its leadership raising tort claims that cannot be unscrambled from the church’s decision to fire him, “the First Amendment has struck the balance for us.” ...  Churches have an overarching interest “in choosing who will preach their beliefs, teach their faith, and carry out their mission.” ... In order for a church to remain “free to choose those who will guide it on its way,” ... such tort claims must sometimes give way. 

... The trial court erred in concluding that Marshall’s claim for defamation per se against Bishop Haynes could be resolved on secular principles...

Monday, July 15, 2024

2nd Circuit: Trial Court Must Make Further Findings in Wedding Photographer's Challenge to NY Public Accommodation Law

In Emilee Carpenter, LLC, dba Emilee Carpenter Photography v. James, (2d Cir., July 12, 2024), the U.S. 2nd Circuit Court of Appeals reversed and remanded a New York federal district court's dismissal of a free speech challenge by a wedding photographer to New York's public accommodation law that bars discrimination on the basis of sexual orientation.  The photographer refuses because of her religious and personal beliefs to photograph same-sex weddings.  The court held that the case must be remanded for further fact finding in light of the U.S. Supreme Court's intervening decision in 303 Creative LLC v. Elenis. The court said in part:

... [W]hether Carpenter’s actual wedding photography services constitute expressive conduct is an open threshold question for the district court to consider on remand...

To state a compelled speech claim, it is not enough for a plaintiff to show that the service at issue involves a medium of expression.  The plaintiff must also demonstrate that the expressive activity is her own – that is, she created the expressive content herself or, by compiling or curating third-party content in some forum, she is also engaged in her own expressive activity....

Here, to the extent Carpenter is using her photographs or website to host the expressive content of third parties (such as the wedding couple who hired her), rather than her own, the district court must determine ... whether the law compels Carpenter’s own speech....

Specifically, the court should assess whether Carpenter’s blogging is more akin to, for instance, advertisement than to a service Carpenter offers to the general public, which her customers purchase from her—in other words, whether Carpenter’s blogging is a good or service regulated by New York’s public accommodations laws....

The court rejected the photographer's expressive association, free exercise, Establishment Clause and vagueness claims, saying in part:

Nowhere in her complaint does Carpenter allege that she offers as a service to the public her active religious participation in the weddings that she photographs.  New York’s laws therefore do not require Carpenter to sing, pray, follow an officiant’s instructions, act as a “witness” of the union “before God,” or otherwise participate in any same-sex wedding....

Courthouse News Service and ADF report on the decision. 

Recent Articles of Interest

From SSRN:

From SSRN (Non-U.S. Law):

From SmartCILP:

  • Clay W. Crozier, "Purposefulness" throughout the Doctrines: The Importance of Masterpiece Cakeshop and Its Contribution to Constitutional Analysis, 36 Regent University Law Review 59-85 (2023).

Sunday, July 14, 2024

Church Ceremony Without Marriage License Was Enough to Create a Civil Marriage In New York

In L.F. v. M.A., (NY Cnty. Sup. Ct., July 9, 2024), a New York state trial court, in a divorce action, held that a ceremony at a Coptic Orthodox Church in New York was sufficient to consider the parties civilly married even though they did not obtain a civil marriage license. Defendant had contended that the ceremony was merely a family blessing, and that the parties were never married.  According to the court:

At stake is not just the status of the parties' young child in common or spousal maintenance, but potentially millions of dollars in what would be marital assets versus separate property.

In a prior decision, the court ordered the Bishop who performed the ceremony to testify about it. In the current decision, the court said in part:

... [T]he parties participated in a religious solemnized ceremony, one that so looked like a wedding that the church's Father H.H. prepared the marriage certificate, and until one day before his testimony here, never thought anything other than that the parties were married that day in that ceremony. Plaintiff believed she was married — that is undisputed. Defendant now states that he did not think he was married, but his actions during the years immediately after the ceremony paint a clear and undisputed picture that he could have only thought that he was married and not otherwise.... In reaching its determination, the Court must, and does, apply neutral principles of law, and does not reach into religious details of a ceremony within the Coptic Orthodox Church. The court finds, by a preponderance of the evidence, that Plaintiff has more than carried her burden that there was indeed a religious marriage ceremony that day, and further, that both parties so understood, as well, as did Father H.H. (and at least some of their wedding's witnesses).

Catholic Counselors Challenge Michigan's Transgender Conversion Therapy Ban

Suit was filed last week in a Michigan federal district court challenging the constitutionality of Michigan statutes that ban counselors from engaging in conversion therapy with minors, particularly as applied to counseling minors regarding their gender identity. The complaint (full text) in Catholic Charities of Jackson, Lenawee and Hillsdale Counties v. Whitmer, (WD MI, filed 7/12/2024), alleges that the ban violates counselors' and patients' free speech rights, parents' right to control the upbringing of their children, free exercise rights of plaintiffs and parents, as well as alleging that the statute is void for vagueness.  The complaint reads in part:

115. Plaintiffs intend to continue helping young people live consistently with their own religious beliefs on matters of gender identity and sexuality—including young people who desire to align their gender identity with their biological sex, or who desire to refrain from acting on sexual attractions outside the context of male–female marriage.  

116. HB 4616 prohibits Plaintiffs from using their professional training to help young people who have these goals....

125. Because Plaintiffs are chilled or prohibited from discussing issues of human sexuality and gender identity, their clients are denied access to ideas they wish to hear and to counseling that would help them live consistently with their own personal, religious, and life goals. 

126. Parents of these children are likewise deprived of their right to direct the religious upbringing of their children by obtaining counseling that respects their religious identity. 

127. This acutely impacts religious minorities. Such religious minorities are underrepresented among counselors generally, and it is especially difficult to find counselors willing to counsel minors who are struggling to reconcile their faith with their gender identity and sexuality....

Becket Fund issued a press release announcing the lawsuit. 

Friday, July 12, 2024

School's Exclusion of Fellowship of Christian Athletes Violates RFRA and 1st Amendment

 In Fellowship of Christian Athletes v. District of Columbia, (D DC, July 11, 2024), a D.C. federal district court issued a preliminary injunction requiring D.C.'s Jackson Reed High School to reinstate Fellowship of Christian Athletes as a recognized student organization for the school year 2024-2025. FCA's recognition had been suspended because it required its student leaders to affirm its Statement of Faith which bars sexual relations outside of heterosexual marriage and bars any sexually immoral act including homosexuality. This was seen as a violation of the school's anti-discrimination policy. The court concluded that applying the anti-discrimination policy in this manner violates the Religious Freedom Restoration Act because it substantially burdens FCA's exercise of religion. The court said in part:

[T]he District’s interest is unjustifiably speculative.  It seeks to “protect[] the safety and well-being of its students by promoting an equitable environment free of discrimination.”... [T]he District readily admits that a student in noncompliance with FCA’s Statement of Faith—whether an atheist, Jewish, gay, or lesbian student—is unlikely to seek a leadership position....  The District can thus offer “only speculation” that FCA’s reinstatement would pose an actual threat of discrimination against any Jackson-Reed student based on a protected characteristic.... Such a speculative goal does not pass muster under strict scrutiny.  

Moreover, the District’s exclusion of FCA as a means of eliminating discrimination is “fatally underinclusive.”... [T]he District permits student groups besides FCA to continue operating at Jackson-Reed even though they restrict membership on the basis of protected characteristics and/or ideological alignment....  The District’s “interest” in nondiscrimination “cannot justify” a nondiscrimination policy “that requires only religious” groups to “bear [its] weight.” ...

The court also concluded that the school had violated the First Amendment's Free Exercise Clause, concluding that the school's policy was not generally applicable and thus was subject to strict scrutiny. It said in part:

[T]he District permits secular groups to limit their membership to ideologically aligned students while denying the same right to FCA with respect to its leadership. The Court can find “no meaningful constitutionally acceptable distinction between the types of exclusions at play here.”

India's Supreme Court Says Muslim Women Can Invoke Secular Law for Maintenance Award After a Religious Divorce

In Mohd v. State of Telangana, (India Sup. Ct., July 10, 2024), a 2-judge panel of India's Supreme Court held that a Muslim woman who has been divorced under Muslim law, has a choice of seeking maintenance under the secular provisions of Section 125 of the Code of Criminal Procedure in addition to remedies available under the 1986 Muslim Women (Protection of Rights on Divorce) Act. Each of the two justices wrote an opinion. Justices Nagarathna in his opinion said in part:

... [A] technical or pedantic interpretation of the 1986 Act would stultify not merely gender justice but also the constitutional right of access to justice for the aggrieved Muslim divorced women who are in dire need of maintenance. This Court would not countenance unjust or Faustian bargains being imposed on women. The emphasis is on sufficient maintenance, not minimal amount. After all, maintenance is a facet of gender parity and enabler of equality, not charity. It follows that a destitute Muslim woman has the right to seek maintenance under Section 125 of the CrPC despite the enactment of the 1986 Act. Thus, an application for maintenance under Section 125 of the CrPC would not prejudice another application under Section 3 of the 1986 Act insofar as the latter is additional in nature and does not pertain to the same requirements sought to be provided for by Section 125 of the CrPC. One cannot be a substitute for or supplant another; rather it is in addition to and not in derogation of the other.

The Independent reports on the decision.

United Methodist Church Is Not a Jural Entity That Can Be Sued Under NY Child Victims Act

In Chestnut v. United Methodist Church, (NY App. Div., July 10, 2024), a New York state appellate court held that the "United Methodist Church" is not a jural entity that can be sued under New York's Child Victims Act. Plaintiff, who alleged that she was sexually abused as a young child over a 4-year period by a youth group leader who was also the son of a clergyman, named 6 defendants. She alleged that United Methodist Church was in a principal-agent relationship with the Woodbury, New York church that employed the abuser. The court said in part:

Here, the issue of whether United Methodist Church is a jural entity capable of being sued does not concern a religious controversy, and, therefore, does not require the interpretation or application of ecclesiastical doctrine. Instead, the issue of whether United Methodist Church may be considered an unincorporated association rests entirely on neutral principles of law....

... [W]e conclude that the defendants established that United Methodist Church ... is a religious denomination ... and not a jural entity amenable to suit as an unincorporated association. It is undisputed that United Methodist Church does not have a principal place of business, does not have its own offices or employees, and does not and cannot hold title to property, and there is no proof in the record that United Methodist Church has incorporated or held itself out as a jural entity in any other jurisdiction....

... United Methodist Church governs itself through the efforts of United Methodists from all over the world who, at various levels, propose and adopt policies and procedures in the Discipline to be followed by, among others, local churches, annual conferences, and the various corporate entities at the general church level, such as GCFA. Given this unique structure, the hierarchical nature of United Methodist Church's "connectional" structure does not, in and of itself, suggest that United Methodist Church is an unincorporated association or anything other than a religious denomination.

Thursday, July 11, 2024

Arkansas Secretary of State Rejects Abortion Rights Initiative Petitions as Inadequate

Yesterday, Arkansas Secretary of State John Thurston rejected petitions to place a proposed state constitutional amendment on the November ballot that would have given women the right to obtain an abortion during the first 18 weeks after fertilization, and later in cases of rape, incest, fatal fetal anomaly, or to protect the mother's life or physical health. (Full text of Amendment via Arkansas Advocate reporting.) In his letter (full text via Arkansas Advocate reporting) rejecting the petitions, the Secretary of State said that proponents had failed to comply with statutory requirements to file a statement listing paid canvassers by name and stating that they had been supplied with specified information about collecting signatures. Proponents needed 90,704 signatures. Only 87,382 of the 101,525 submitted were from unpaid canvassers.

Suit Challenges HHS Rules Barring Gender Identity Discrimination in Federally Funded Health Care Programs

Suit was filed yesterday in a Missouri federal district court by six states and a national organization of pediatricians challenging new rules adopted in May by the Department of Health and Human Services barring discrimination on the basis of gender identity in federally funded health care programs. The complaint (full text) in State of Missouri v. Becerra, (ED MO, filed 7/10/2024), alleges in part:

1. ... [The] new final rule ... forces doctors to perform, refer for, or affirm harmful gender-transition procedures and forces States to pay for these dangerous procedures in state health plans....

2. HHS threatens to punish doctors and States who do not comply with the mandate by imposing huge financial penalties and excluding them from federally funded healthcare programs like Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP). This punishment would effectively preclude doctors and States from providing healthcare for the most vulnerable children in low-income communities. 

3. This harmful rule violates the Affordable Care Act (ACA), the Administrative Procedure Act (APA), the structural principles of federalism, and the freedom of speech. 

4. Congress did not authorize any of this. The rule purports to implement the sex-discrimination prohibition in Section 1557 of the ACA, but there is no gender-transition mandate in that statute, nor in Title IX of the Education Amendments of 1972 from which it is derived. Nor did the rule (or the ACA) satisfy the constitutional requirements of clear notice for such a mandate: the States and healthcare providers did not agree to provide, pay for, or affirm gender-transition procedures when they began Medicaid, Medicare, and CHIP. 

States bringing the lawsuit are Missouri, Utah, Arkansas, Iowa, North Dakota, South Dakota and Idaho. ADF issued a press release announcing the filing of the lawsuit.