Sunday, June 20, 2021

VA Will Offer Gender Confirmation Surgery

AP reports that at a PRIDE event in Orlando on Saturday, Veterans Affairs Secretary Denis McDonough announced that the VA is moving to offer gender confirmation surgery to transgender veterans:

McDonough said in prepared remarks that the move was “the right thing to do,” and that it was part of an effort to overcome a “dark history” of discrimination against LGBTQ service members. The move is just the first step in what’s likely to be a years-long federal rulemaking process to expand VA health benefits to cover the surgery, but McDonough said the VA will use the time to “develop capacity to meet the surgical needs” of transgender veterans.

City's Use Permit Requirement Violated State Free Exercise Law

In  Henry v. City of Somerton, (D AZ, June 17, 2021), an Arizona federal district court held that an Arizona city violated the state's Free Exercise of Religion Act when, under a now-amended ordinance, it required a church to obtain a conditional use permit to use rented space for religious services. The court held in part:

The Court finds the unamended Ordinance’s CUP requirement treated the Iglesia on less than equal terms than nonreligious assemblies, such as fraternal organizations.

Because there is no genuine dispute of material facts, the Court will grant summary judgment on the FERA claim. ...

Various other claims against the city were dismissed, including plaintiffs' prior restraint claim:

... [W]ithout even having tried to apply for a CUP, any injury Plaintiffs claim that resulted from the CUP evaluation process is purely conjectural. Plaintiffs cannot claim they were deterred by the CUP evaluation process because, by all accounts, they have been conducting services uninterrupted since the Iglesia opened.

Friday, June 18, 2021

Catholic Members of U.S. House Confront Bishops Over Possible Denial of Communion To Pro-Choice Democrats

As reported by CNN, the U.S. Conference of Catholic Bishops today voted 168-55 with 6 abstentions to direct its Committee on Doctrine to draft a formal statement on the meaning of the Eucharist in the life of the Church.  Conservative bishops want to deny communion to public officials, including President Biden, who support abortion rights.

In response to these developments, today 60 Catholic Democratic members of the House of Representatives issued a Statement of Principles which reads in part:

We envision a world in which every child belongs to a loving family and agree with the Catholic Church about the value of human life. Each of us is committed to reducing the number of unintended pregnancies and creating an environment with policies that encourage pregnancies to be carried to term and provide resources to raise healthy and secure children. We believe this includes promoting alternatives to abortion, such as adoption, improving access to children's healthcare and child care, and creating a child benefit through the expanded and improved Child Tax Credit.

In all these issues, we seek the Church's guidance and assistance but believe also in the primacy of conscience.... [W]e acknowledge and accept the tension that comes with being in disagreement with the Church in some areas. We recognize that no political party is perfectly in accord with all aspects of Church doctrine. This fact speaks to the secular nature of American democracy, not the devotion of our democratically elected leaders. Yet we believe we can speak to the fundamental issues that unite us as Catholics and lend our voices to changing the political debate ... that often fails to reflect ... the depth and complexity of these issues....

We believe the separation of church and state allows for our faith to inform our public duties and best serve our constituents. The Sacrament of Holy Communion is central to the life of practicing Catholics, and the weaponization of the Eucharist to Democratic lawmakers for their support of a woman’s safe and legal access to abortion is contradictory. No elected officials have been threatened with being denied the Eucharist as they support and have supported policies contrary to the Church teachings, including supporting the death penalty, separating migrant children from their parents, denying asylum to those seeking safety in the United States, limiting assistance for the hungry and food insecure, and denying rights and dignity to immigrants.

We solemnly urge you to not move forward and deny this most holy of all sacraments ... over one issue....

Christian Organization Appeals IRS Denial of Non-Profit Status

In a determination letter (full text) issued May 18, 2021, the Internal Revenue Service preliminarily concluded that it should deny a Section 501(c)(3) non-profit exemption to Christians Engaged because the religious organization "plans to participate ... in political campaigns on behalf of or in opposition to candidates for public office." The letter continues:

You instruct individuals on issues that are prominent in political campaigns and instruct them in what the Bible says about the issue and how they should vote. These issues include the sanctity of life, the definition of marriage, and biblical justice. These issues generally distinguish candidates and are associated with political platforms. These facts preclude you from exemption under IRC Section 501(c)(3).

... While you educate voters on what the bible says about issues, your educational activities are not neutral. The topics typically are affiliated with distinct candidates and specific political platforms.

First Liberty, on behalf of Christians Engaged, has filed an appeal with the IRS. (Full text of letter dated June 16, 2021). It contends:

... [B]y finding that Christians Engaged does not meet the operational test, Director Martin errs in three ways: 1) he invents a nonexistent requirement that exempt organizations be neutral on public policy issues; 2) he incorrectly concludes that Christians Engaged primarily serves private, nonexempt purposes rather than public, exempt purposes because he thinks its beliefs overlap with the Republican Party’s policy positions; and 3) he violates the First Amendment’s Free Speech, and Free Exercise, and Establishment clauses by engaging in both viewpoint discrimination and religious discrimination.

Thursday, June 17, 2021

Supreme Court Rejects Suit Against 2 US Companies Charging Abetting Child Slavery Abroad

Under the Alien Tort Statute, suits may be brought in U.S. courts by non-citizens to recover damages for human rights abuses that violate international law, if conduct relevant to the statute’s focus occurred in the United States.  The U.S. Supreme Court this morning in Nestle USA, Inc. v. Doe, (Sup. Ct., June 17, 2021), by an 8-1 vote, dismissed an Alien Tort Statute suit, finding insufficient conduct in the United States.  The Court summarized plaintiffs' allegations:

Petitioners NestlĂ© USA and Cargill are U. S.-based companies that purchase, process, and sell cocoa. They did not own or operate farms in Ivory Coast. But they did buy cocoa from farms located there. They also provided those farms with technical and financial resources—such as training, fertilizer, tools, and cash—in exchange for the exclusive right to purchase cocoa. Respondents allege that they were enslaved on some of those farms.

Respondents sued Nestlé, Cargill, and other entities, contending that this arrangement aided and abetted child slavery.

The Court, in an opinion by Justice Thomas, held:

The Ninth Circuit ... let this suit proceed because respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U. S.”... But allegations of general corporate activity—like decision making—cannot alone establish domestic application of the ATS.

Justices Thomas, Gorsuch and Kavanaugh would have also held that the ATS is merely jurisdictional, and no private right of action has been created by Congress for this conduct.

Justice Gorsuch filed a concurring opinion, joined in parts by Justices Alito and Kavanaugh. Justice Sotomayor, Joined by Justices Breyer and Kagan filed an opinion concurring in part. Justice Alito filed a dissenting opinion.

AP reports on the decision.

Supreme Court Sides With Catholic Social Services In Its Refusal To Certify Same-Sex Couples As Foster Parents

The U.S. Supreme Court today in Fulton v. City of Philadelphia(Sup. Ct., June 17, 2021), held unanimously that Philadelphia has violated the free exercise rights of Catholic Social Services by refusing to contract with CSS to provide foster care services unless it agrees to certify same-sex couples as foster parents.  Chief Justice Roberts wrote the opinion of the court which was joined by five other justices, avoiding the question of whether to overrule Employment Division v. Smith. The Court said in part:

Smith held that laws incidentally burdening religion are ordinarily not subject to strict scrutiny under the Free Exercise Clause so long as they are neutral and generally applicable.... CSS urges us to overrule Smith, and the concurrences in the judgment argue in favor of doing so.... But we need not revisit that decision here. This case falls outside Smith because the City has burdened the religious exercise of CSS through policies that do not meet the requirement of being neutral and generally applicable....

Government fails to act neutrally when it proceeds in a manner intolerant of religious beliefs or restricts practices because of their religious nature....

[S]ection 3.21 incorporates a system of individual exemptions, made available in this case at the “sole discretion” of the Commissioner. The City has made clear that the Commissioner “has no intention of granting an exception” to CSS.... But the City “may not refuse to extend that [exemption] system to cases of ‘religious hardship’ without compelling reason.” Smith, 494 U. S., at 884....

The question, then, is not whether the City has a compelling interest in enforcing its non-discrimination policies generally, but whether it has such an interest in denying an exception to CSS. 

Once properly narrowed, the City’s asserted interests are insufficient.

Justice Barrett filed a concurring opinion, joined by Justice Kavanaugh and (except for one paragraph) by Justice Breyer, saying in part:

In my view, the textual and structural arguments against Smith are more compelling. As a matter of text and structure, it is difficult to see why the Free Exercise Clause—lone among the First Amendment freedoms—offers nothing more than protection from discrimination.

Yet what should replace Smith? The prevailing assumption seems to be that strict scrutiny would apply whenever a neutral and generally applicable law burdens religious exercise. But I am skeptical about swapping Smith’s categorical antidiscrimination approach for an equally categorical strict scrutiny regime, particularly when this Court’s resolution of conflicts between generally applicable laws and other First Amendment rights—like speech and assembly—has been much more nuanced.

Justice Alito, joined by Justices Thomas and Gorsuch filed a 77-page opinion concurring in the judgment, arguing that the Smith case should be overruled. Justice Gorsuch, joined by Justices Thomas and Alito also filed an opinion concurring in the judgment and contending that Smith should be overruled.

CNBC reports on the decision. 

DOJ's Special Counsel For Religious Discrimination Is Retiring

In an e-mail sent out yesterday, Eric Treene who has been the Justice Department's Special Counsel for Religious Discrimination since 2002 announced that he is retiring as of July 2.  Religious discrimination matters will apparently be handled by several individuals in DOJ's Civil Rights Division as part of their portfolios. Treene says:

The Civil Rights Division has consolidated its complaint interface for all types of claims.  Any civil rights complaint may be filed using the complaint portal here: https://civilrights.justice.gov/. This includes civil cases as well as hate crimes, whether against persons or property. As always, we encourage crime victims to call 911 or a local law enforcement non-emergency number before contacting the Department of Justice.   

Additionally, questions involving RLUIPA land matters use may be directed to Ryan Lee, RLUIPA coordinator at the Housing and Civil Enforcement Section, at Ryan.Lee@usdoj.gov. Questions regarding RLUIPA institutionalized persons cases and issues should be directed to Tim Mygatt, timothy.mygatt@usdoj.gov and Deena Fox, Deena.Fox@usdoj.gov in the Special Litigation Section.

Carrie Pagnucco, a career attorney with experience in RLUIPA litigation, is serving in the Office of the Assistant Attorney General for the Civil Rights Division, and has religion-related matters as part of her portfolio. She can be reached at Carrie.Pagnucco@usdoj.gov. She is the person to reach out to an all issues and matters other than RLUIPA (though she can help with RLUIPA too).

For policy related matters you also can reach out to Sheila Foran, Chief of the Policy Section at the Civil Rights Division, at Sheila.Foran@usdoj.gov.

Treene says that he will stay involved in the religious liberty field through teaching and writing, and furnishes his permanent contact information as etreene@gmail.com.

4th Circuit: Governor and Attorney General Were Wrong Defendants In Challenge To Maryland Conversion Therapy Ban

In Doyle v. Hogan, (4th Cir., June 15, 2021), plaintiffs raised free speech and free exercise of religion challenges to Maryland's ban on mental health professionals engaging in conversion therapy with minors. The district court had held that the ban did not violate free speech or free exercise protections. (See prior posting.) The U.S. 4th Circuit Court of Appeals held that it could not reach the "interesting First Amendment issues" that are raised because defendants-- the Governor and Attorney General of Maryland-- have 11th Amendment immunity from suit. Neither defendant has the necessary connection to enforcing the statute required to invoke the immunity exception set out in Ex parte Young. So the court vacated the district court's 1st Amendment rulings and remanded the case for the district court to decide whether it will permit plaintiffs to file an amended complaint. In a press release, Liberty Counsel announced that it will seek to file an amended complaint  to list the State Board of Professional Counselors and Therapists as a defendant.

Judge Jack Weinstein Dies At Age 99-- Supporter of Jewish Group's Criminal Justice Reform Efforts

U.S. federal district Judge Jack B. Weinstein died on Tuesday at the age of 99. He served on the Eastern District of New York for 53 years-- until he took inactive senior status in 2020. The New York Times describes Weinstein as "a legal scholar and famously independent federal judge in Brooklyn who led the legal system into an era of mass tort litigation." Chabad.org has published a lengthy account of Weinstein's support for the Aleph Institute, Chabad-Lubavitch's organization that advocates for criminal justice reform.

DOE Says Title IX Bans LGBT Discrimination

The U.S. Department of Education Office for Civil Rights yesterday issued a Notice of Interpretation (full text) extending Title IX's non- discrimination provisions to discrimination on the basis of sexual orientation or gender identity. This reverses a DOE interpretation issued by the Trump Administration just days before the change in Administrations. (See prior posting.) The new Interpretative memo states in part:

[T]he Department has determined that the interpretation of sex discrimination set out by the Supreme Court in Bostock—that discrimination “because of . . . sex” encompasses discrimination based on sexual orientation and gender identity—properly guides the Department’s interpretation of discrimination “on the basis of sex” under Title IX and leads to the conclusion that Title IX prohibits discrimination based on sexual orientation and gender identity....

Consistent with the analysis above, OCR will fully enforce Title IX to prohibit discrimination based on sexual orientation and gender identity in education programs and activities that receive Federal financial assistance from the Department.

The Interpretation notes in a footnote, however:

Educational institutions that are controlled by a religious organization are exempt from Title IX to the extent that compliance would not be consistent with the organization’s religious tenets. See 20 U.S.C. § 1681(a)(3).

Deseret News reports on the DOE's action.

Hungarian Parliament Passes Law Banning Schools From Teaching About LGBT Issues

 AP reports that on Tuesday, Hungary's National Assembly adopted legislation (full text of law in Hungarian) that bans school sex education programs, as well as films and ads aimed at minors, from presenting information about non-heterosexual sexual orientation. It also bans presenting information about gender reassignment. The legislation began as a bill to battle pedophilia, but amendments expanded it to include anti-LGBT provisions. Fidesz, the conservative ruling party of Prime Minister Viktor Orban, introduced the legislation which passed by a vote of 157-1.  Opposition parties boycotted the voting session of parliament.

Wednesday, June 16, 2021

Challenge To "Sanctuary City for Unborn" Dismissed On Standing And Abstention Grounds

In Planned Parenthood of Greater Texas Surgical Health Services v. City of Lubbock, (ND TX, June 1, 2021), a Texas federal district court dismissed on standing and Pullman abstention grounds a pre-enforcement challenge to a Lubbock, Texas ordinance declaring the city a "sanctuary city for the unborn." The ordinance includes a private enforcement provision that comes into effect only upon certain future events, such as the overruling of Roe v. Wade. The court said in part:

 Although the Court assumes that plaintiffs can show injury that stems from the city's passage of the ordinance's private-enforcement provision, they fail to show that an order from the Court would redress the injury. Plaintiffs admit that this Court cannot force the city to revoke or amend its ordinance.... They also concede that any order from this Court regarding the ordinance's constitutionality or validity would not bind the state courts that would hear the private-enforcement suits.... Instead, plaintiffs claim that a declaration of invalidity from the Court may deter lawsuits and may help convince state courts of plaintiffs' arguments.... But this potential relief is too speculative to show, as they must, that the Court's order would likely redress their injury....

"[U]nder the Pullman doctrine, a federal court should abstain from exercising its jurisdiction 'when difficult and unsettled questions of state law must be resolved before a substantial federal constitutional question can be decided.'"...

Therefore, even if the Court had jurisdiction, the Court would dismiss the case without prejudice so that the state courts could resolve whether Texas law prohibits cities from enacting private rights of action or whether state law preempts any component of the ordinance.

Baker Violated Public Accommodation Law In Refusing To Sell Gender Transition Cake

Scardina v. Masterpiece Cakeshop, Inc., (CO Dist. Ct., June 15, 2021), is the latest installment in lawsuits against the owner of a Lakewood, Colorado bakery who refuses to furnish cakes that violate his religious beliefs.  Here, a transgender woman sought to order a birthday cake with a pink interior and blue exterior to reflect her transition from male to female. According to the court:

Mr. Phillips ... claims his religious beliefs prevent him from creating a custom cake celebrating a transition from male to female because expressing that message—that such a transition is possible and should be celebrated—would violate his religious convictions.... He and his wife believe that God designed people male and female, that a person’s gender is biologically determined, and that gender does not change based on an individual’s perception or feelings.....  

The court concluded that defendants violated the Colorado Anti-Discrimination Act, and that the law does not infringe defendants' free speech or free exercise rights:

Defendants denied Ms. Scardina goods and services because of her transgender status. Defendants admit that they were willing to make the requested cake until Ms. Scardina identified that she chose the colors to reflect and celebrate her identity as a transgender female....

The Court concludes that a reasonable observer of the requested cake would not attribute any message to Defendants and would not understand the cake to convey the message claimed by Defendants, i.e., endorsement of a gender transition. Therefore, Defendants have failed to carry their burden to show that providing the requested cake constituted any type of symbolic or expressive speech protected by the First Amendment.....

A press release from ADF says that the decision will be appealed.

South Carolina City Bans Conversion Therapy for Minors

According to The State, yesterday the Columbia, South Carolina City Council, by a vote of 4-3, passed a ban on licensed professional therapists offering conversion therapy for minors. Violations will result in a $500 civil fine. The paper reports:

A number of people spoke on the conversion therapy ban during Tuesday’s [City Council] meeting. Eleven of the 14 speakers were against the measure, with several saying they believed it infringed on religious liberties and First Amendment rights. Several of the speakers against the ordinance were connected to Columbia International University, a Christian college in North Columbia.

[Councilman Howard] Duvall said the ordinance would not interfere with conversations between a pastor and a resident.....  "It is clearly aimed at licensed practitioners. Most of the pastors in South Carolina are not licensed practitioners licensed by the state of South Carolina."

By a vote of 6-1, Council also passed a resolution supporting statewide legislation outlawing conversion therapy for minors.

Tuesday, June 15, 2021

Michigan Governor Bans Use Of State Funds For Conversion Theapy

Yesterday, Michigan Governor Gretchen Whitmer issued an Executive Directive (full text) directing the Michigan Department of Health and Human Services to take action "to prohibit the use of state and federal funds for the practice of conversion therapy on minors." In the Executive Directive, Whitmer said in part:

The assumptions underlying the practice of conversion therapy are not supported by medicine or science. Being LGBTQ+ is not a disorder, disease, or deficiency. Treating it as such through conversion therapy is not only ineffectual, but may cause significant long-term harm, including anxiety, depression, internalized homophobia, lowered self-esteem, and self-blame, as well as alienation, loneliness, social isolation, loss of social supports, and suicidal behaviors.

It also called on other state agencies to explore what they can do to protect minors from conversion therapy. MLive reports on the Governor's action.

College Seeks Injunction Pending Appeal To 8th Circuit In Suit Against HUD's Transgender Policy On Student Housing

In February of this year, the Department of Housing and Urban Development issued a Directive interpreting the Fair Housing Act as barring discrimination on the basis of sexual orientation or gender identity. This meant, among other things, that colleges could not discriminate against transgender individuals in access to student housing. College of the Ozarks filed suit challenging the Directive as a violation of its religious freedom rights. (See prior posting.) A Missouri federal district court refused to issue a TRO or a preliminary injunction, denied an injunction pending appeal, and dismissed the case as non-justiciable on the ground that the Directive is a non-binding policy statement.  Now the College has filed a motion with the U.S. 8th Circuit Court of Appeals seeking an injunction pending appeal. The School of the Ozarks, Inc. v. Biden, (8th Cir., filed 6/11/2021). (Full text of memorandum in support of the motion.) ADF issued a press release announcing the filing of the motion.

Street Preacher Lacks Standing To Challenge COVID Restrictions

 In Gibson v. City of Vancouver, (WD WA, June 7, 2021), a Washington federal district court dismissed for lack of standing a suit by a street preacher who claims that Washington state's COVID-19 restrictions unconstitutionally target religious activities. He also contended that the City of Vancouver selectively targets religious protesters for arrest for violating COVID-19 restrictions. The court said in part:

The Defendants accurately describe this matter as a case in search of a controversy. There has been no specific or credible threat of enforcement, and there is no history of enforcement. Gibson’s claims were never ripe, and he did not and does not have standing to assert them....

Monday, June 14, 2021

Cert. Denied In Unification Church Leadership Dispute

The U.S. Supreme Court today denied review in Moon v. Moon,   (Docket No. 20-1415, certiorari denied 6/14/2021). (Order List) (Links to pleadings.) In the case, the U.S. 2nd Circuit Court of Appeals in a Nov. 5, 2020 decision (full text) applied the ecclesiastical abstention doctrine to refuse to adjudicate a dispute over who is the true leader of the Unification Church.

Recent Articles of Interest

From SSRN:

From SmartCILP:
Symposium, Jewish Law and American Law: A Comparative Study, (Touro Law Review, Vol. 36, Issue 1, (2020).

Sunday, June 13, 2021

Wisconsin COVID Order Closing Schools Violated Free Exercise Rights

In James v. Heinrich, (WI Sup. Ct., June 11, 2021), the Wisconsin Supreme Court in a 4-3 decision, held that under Wisconsin statutes, the local health officer had no authority to issue a COVID-19 Order that closed schools.  In addition, the majority held that such orders are unconstitutional under the Wisconsin state constitution, saying in part:

[T]hose portions of the Order restricting or prohibiting in-person instruction are unconstitutional because they violate a citizen's right to the free exercise of religion guaranteed in Article I, Section 18 of the Wisconsin Constitution....

Under Heinrich's Order, all schools in Dane County——including these private religious institutions——were required to cease all in-person instruction for students in grades 3-12 and instead provide a virtual learning environment. Consequently, all in-person religious practices interwoven with religious education at these schools——ones deemed essential to the Petitioners' exercise of their faith——were suspended by government decree.

Justice Hagedorn filed a concurring opinion. Justice Dallet, joined by Justices Bradley and Karofsy, dissented, disagreeing with the majority's statutory interpretation and contending the majority did not need to reach the constitutional question.

Deacon's Defamation Suit Against Diocese Dismissed Under Ecclesiastical Abstention Doctrine

In In re Diocese of Lubbock, (TX Sup. Ct., June 11, 2021), the Texas Supreme Court in a 7-1 decision, held that the ecclesiastical abstention doctrine requires the trial court to dismiss an action for defamation and intentional infliction of emotional distress brought by against the Diocese of Lubbock by one of its ordained deacons. The deacon's name was included on a published list of those against whom credible allegations of sexual abuse of a minor have been raised. The deacon contended that he was wrongly included on the list because the person accusing him was not a minor. The court said in part:

[T]he Diocese ... based the scope of its investigation on the canonical meaning of minor: “a person who habitually lacks the use of reason,” which includes “vulnerable adults.” Thus, a court would have to evaluate whether the Diocese had credible allegations against Guerrero under the canonical meaning of “minor.” This would necessarily entail a secular investigation into the Diocese’s understanding of the term “minor,” whether a court agrees that the woman he allegedly sexually abused qualifies as a “minor” under Canon Law, and whether the allegations it possesses were sufficiently “credible.” ...

This inquiry would not only cause a court to evaluate whether the Diocese properly applied Canon Law but would also permit the same court to interlineate its own views of a Canonical term. Indeed, any investigation would necessarily put to question the internal decision making of a church judicatory body.

Justice Blacklock filed a concurring opinion. Justice Boyd filed a lengthy dissenting opinion. The briefs and oral arguments in the case are available online.

In a companion case in a per curiam order in Diocese of Lubbock v. Guerrero,(TX Sup. Ct., June 11, 2021), the court vacated and dismissed a trial court order in a suit invoking the Texas Citizens Participation Act.